Appeal No.	EAT/0927/02/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MRS C BAELZ
MR P DAWSON OBE

MR E BIBBY	APPELLANT

AEEU	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or 
on behalf of the Appellant

MR CLIVE SHELDON
of Counsel
(Amicus Curiae)	

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1	This is the preliminary hearing of an appeal by Mr Bibby against a Decision of the Employment Tribunal on 20 June 2002, in a Decision handed down on 12 July 2002, striking out his claim against the Respondent Union, the AAEU, as scandalous, misconceived and vexatious, and ordering him to pay the sum of £5000 in costs because he had brought and conducted the proceedings against and acted in them vexatiously, abusively, disruptively and unreasonably.  

2	A Notice of Appeal was put in by Mr Bibby himself which was dated 21 August 2002, and which made allegations about the conduct of the Tribunal and, indeed, the Regional Chairman, Mr Sneath.  The Notice of Appeal read:
“Bias by Tribunal and Regional Chairman Mr Sneath
Breach of Human Rights Article 6”

The attached document gave particulars in very short form of the general nature of the bias and conduct alleged, which appears to found his case both in respect of bias and in respect of breach of human rights, at least in the sense that no other particulars of the alleged breach of human rights were ever given.  

3	Pursuant to the Practice Direction an Order was made by the Registrar, in the absence of any compliance with it, dated 31 October 2002, requiring the Appellant to provide a sworn affidavit, and directing that unless such affidavit were sworn within seven days of the sealed date of the Order, all allegations of bias or improper conduct or procedural irregularities contained in the Notice of Appeal would be struck out.  He failed to do so and the Registrar, by an Order dated 20 November 2002, ordered that all allegations of bias or improper conduct or procedural irregularities contained in the Notice of Appeal, be struck out.  

4	The result was that there was, in the event, nothing left in the Notice of Appeal.  We say that because the Notice of Appeal attached to the Order, as amended by virtue of the Order, struck out the entirety of the purported particulars and struck out the claim for bias, but left in, thus unparticularised, the claim for breach of human rights in Article 6, which now no longer had anything to bite on, and as to which we have no understanding that it could relate or does relate to any other matter than the alleged procedural irregularities, which have been struck out, but, nevertheless, the preliminary hearing was listed on the basis that, on the face of it, something was still left in the appeal for hearing.  

5	A note was sent to Mr Bibby, dated 29 January 2003, asking him to confirm by Friday 31 January at 12 o’clock all of his available dates for February, March and April 2003.  The response by Mr Bibby, understandably was, in a document received on 3 February, a complaint that he only got the document of 29 January on 31 January, implicitly, therefore, rendering him unable to have responded by 12 o’clock on 31 January, as he was in those circumstances unreasonably asked to do, but no point could possibly be taken on his delay, in those circumstances, in responding to 29 January, and he did so respond by stating in terms:  “I am available only from 22 March and/or April”.  Pursuant to that, a fixing of this date occurred for today, 26 March 2003, for an ex parte preliminary hearing.  

6	The response by Mr Bibby, by letter dated 22 February 2003, was probably based upon his forgetting what the contents were of the handwritten note of 31 January, to which we have referred, of which he had, no doubt, not kept a copy, because it incorrectly records that he had indicated that he was not available until after 28 March, when in fact it had been 22 March, as we have recorded.  But he said in his letter of 22 February, without giving any explanation, that he could not attend on 26 March.  The Registrar considered that letter and directed that the matter remain in the list for hearing on 26 March 2003, namely today, indicating also that it may be dealt with on written submissions.  In those circumstances, the Appellant has not attended today, having given notice that he would not do so.  The Respondent has put in some submissions in response to the hearing, as it was entitled to do, shortly indicating its case that the appeal is unfounded, by letter dated 24 March 2003.  

7	Pursuant to the well established system, depending as it does on the benevolent  approach of employment lawyers, dedicating their time free of charge to ELAAS, the Employment Lawyers Aid and Advisory Service, Mr Sheldon attended today, not knowing that Mr Bibby would not be appearing today, and he would have been prepared to act for Mr Bibby and has, even in Mr Bibby’s absence, spoken out on his behalf but without instructions from him as best he could, and effectively as a friend of the Court

8	He put forward two points before us as being worthy of consideration on an appeal, both of which would have required an amendment to the Notice of Appeal in order to be pursued.  The first matter consisted of his pointing to us Rule 15 of the Employment Tribunals Rules, which entitles an Employment Tribunal to make the Order that this Tribunal did make under Rule 15(2), but only if notice has been sent to the party against whom it is proposed that the Order should be made, giving him or her an opportunity to show cause why the Order should not be made, or, alternatively, if a party has been given an opportunity to show cause orally why the Order should not be made.  

9	The Decision in question, which was fully reasoned, by the Tribunal, was made in circumstances in which, in fact, the Appellant did not attend on 20 June; he apparently was late in returning from the United States and had suggested the hearing went ahead in his absence, which it did, and so there was no question of his having been given on 20 June, in those circumstances, an oral opportunity to show cause why the Order should not be made; at least insofar as he was given it, he was not there to take it up.  However, the issue remained as to whether notice had been given prior to the hearing which would render the fact that he did not attend irrelevant.  No such letter giving notice was in the papers, although a reference to a letter dated 28 January 2002 was made in paragraph 5 of the Tribunal’s Decision.  

10	We adjourned in order that a copy of that letter could be obtained from the relevant Employment Tribunal, and it has been helpfully faxed through to us by the Leeds Regional Office.  It is plain that the letter did put the Appellant on notice that the hearing that was to take place was to show cause why the applications, two of them, should not be struck out because, and then three grounds are set out, being the same three as eventually led to the strike-out, the proceedings were misconceived, in that they had no reasonable prospect of success, and because the Applicant has conducted the proceedings in case number 2404431/01 scandalously, unreasonably and vexatiously, and because the Originating Application in case number 230092/02 was vexatious.  In those circumstances, Mr Sheldon accepted that there was nothing in his point, which could now be shown to be unfounded.

11	Secondly, Mr Sheldon referred to the costs Order, and drafted a potential amendment to the Notice of Appeal, for which he seeks leave, alleging that the Tribunal erred in law in making an Order for costs against the Appellant, without affording the Appellant the opportunity to state his case, and that it was erroneous because the Tribunal relied on their own knowledge of matters without giving the Appellant any opportunity to rebuff them.  

12	Mr Sheldon accepts that, save in very exceptional circumstances, not applicable here, it is not necessary by virtue of the Rules that notice should be given of a costs Order and, indeed, the only circumstances to which he has drawn our attention, is one where, specifically, a costs Order can be made as one of the remedies for non-compliance, under Rule 4(8).  However, he refers to a passage in Harvey Volume 5 at paragraph 1060 in which it is suggested that a Tribunal ought to give parties an opportunity to give representations as to why an Order for costs should or should not be made.  

13	This is a case in which, on the findings of the Tribunal, not on one occasion, but on numerous occasions, the Appellant had acted vexatiously, unreasonably and scandalously.  He had been, on the face of the findings of the Tribunal, warned on more than one occasion that his confrontational manner put him at risk of his claim being struck out for abusive and disruptive conduct, or otherwise warned as to his behaviour.  This very hearing was fixed, as we have indicated, so that he should show cause why both applications should not be struck out on that very basis.  On numerous occasions, again as has been recorded, a Chairman had had to adjourn the proceedings because, after warnings, the Appellant’s language and demeanour continued to be aggressive.  He plainly knew that he was at risk of the case being struck out, and he did not attend.  

14	It appears to us clear that the costs Order was an inevitable concomitant of the Order to strike out on those grounds, and that he chose not to attend on this occasion, knowing of the likely consequences and thus did not take up any opportunity he might otherwise have had to avoid them.  It may be that Harvey’s general dictum may apply in certain circumstances, and in any event, irrespective of any modern approach under the Human Rights Act, or otherwise, it is essential that Employment Tribunals, as indeed other Courts, act fairly as between the parties and do not act high-handedly and without giving parties an opportunity to put their case; but we conclude that there is no error in law and at the highest, that this could be said to be a challenge to the exercise of a discretion of the Tribunal in this case and we cannot conclude that the Tribunal improperly exercised a discretion or in any way erred in taking the view that they would, in the circumstances described by them in the Decision, make the order for Costs in the absence of the Appellant, and, in those circumstances, there is no ground in law which can be relied upon for the purpose of an appeal in this case, and we dismiss this appeal.