Appeal No.  UKEAT/0581/05/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 December 2005
Judgment delivered on 20 January 2006

Before
THE HONOURABLE MR JUSTICE RIMER
(SITTING ALONE)

 
 
DR SAJID SAEED KHAN	APPELLANT

 

 
HEYWOOD & MIDDLETON PRIMARY CARE TRUST	RESPONDENTS

 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

 
	APPEARANCES

 

For the Appellant	MISS DIYA SEN GUPTA
(Of Counsel)
Instructed by:
Bury Metro Racial Equality Council
Oldfellows House
94 Manchester Road
Bury 
BL9 OTH
 	
For the Respondents	MR BRIAN McCLUGGAGE
(Of Counsel)
Instructed by:
Messrs Hempsons
Solicitors
Portland Tower
Manchester
M1 3LD

Summary
Rule 25 of The Employment Tribunals Rules of Procedure 2004
(i) Does an employment tribunal have jurisdiction to set aside a notice of withdrawal of a claim given under Rule 25(2) of The Employment Tribunals Rules of Procedure 2004? Held, that it does not.
 
(ii) Was the Chairman’s decision to order the claimant to pay the respondent the latter’s costs of the application for such setting aside a perverse one? Held, that it was not.

THE HONOURABLE MR JUSTICE RIMER
Introduction
1.	This appeal, by Dr Sajid Saeed Khan, is against two decisions in a judgment of a tribunal chairman, Mr J.D. Brain, sitting at Manchester on 5 August 2005. The judgment and reasons were sent to the parties on 31 August 2005. Dr Khan is (or was) the claimant and the respondent is (or was) Heywood & Middleton Primary Care Trust (“Heywood”). Dr Khan appeals against (i) the chairman’s dismissal of his application to set aside his notice of withdrawal of his claim, and (ii) the chairman’s order that he should pay £1,294.79 to Heywood in respect of their costs of his failed application. The first appeal turns on the interpretation of Rule 25 of The Employment Tribunals Rules of Procedure (“the Rules”) in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The second appeal is based on the assertion that the chairman’s decision was perverse. Miss Diya Sen Gupta represented Dr Khan and Mr Brian McCluggage represented Heywood. Neither counsel appeared before the chairman. 
 
The facts
2.	On 16 December 2004, Dr Khan presented his claim under Part II of the Race Relations Act 1976 (“Discrimination in the Employment Field”) to the employment tribunal, alleging race discrimination against Heywood. It followed his unsuccessful application for a position on Heywood’s Professional Executive Committee. By their notice of appearance, Heywood denied discrimination. They also asserted that the position for which Dr Khan had applied was not one under which, had he been appointed to it, he would have become Heywood’s employee, a point going to the tribunal’s jurisdiction to hear the claim.
 
3.	On 8 February 2005, Irwin Mitchell, Dr Khan’s solicitors, wrote to the employment tribunal confirming that, despite the jurisdiction point that Heywood had raised, Dr Khan wished to pursue his claim: they asserted that the tribunal did have jurisdiction. But on 23 February 2004, with an eye on hedging his bets, Dr Khan also issued a claim form against Heywood in the Oldham County Court alleging a breach of Part III of the Race Relations Act 1976 (“Discrimination in Other Fields”). Irwin Mitchell did not act for Dr Khan in relation to that claim, and the claim form was not served on Heywood until about the third week of June 2005 (just before the expiry of the four-month period for service). 
 
4.	On 10 March 2005, there was a Case Management Discussion in the tribunal proceedings before Mr P. J. Russell, another chairman. Dr Khan was represented by Irwin Mitchell, who indicated that they had doubts as to the tribunal’s jurisdiction to hear the claim. In light of that, a month’s stay of proceedings was granted so as to enable Dr Khan to consider his position further; and the order made was that Irwin Mitchell had until 7 April 2005 to inform the tribunal whether Dr Khan wished to withdraw his claim. If he did wish to continue it, a further Case Management Discussion was fixed to take place on the first available date after 7 April 2005. 
 
5.	Dr Khan decided to withdraw his claim. On 6 April 2005, Irwin Mitchell sent a letter by fax (copied to Heywood’s solicitors) to the tribunal office confirming that Dr Khan “seeks to withdraw his claim from the Tribunal” and asking the tribunal to remove the matter from their listings. The tribunal responded on 11 April 2005, writing to both sides’ solicitors by way of acknowledgment of the letter of 6 April 2005 and advising them that the file had been closed and would be archived until April 2008 when it would be destroyed. 
 
6.	There the matter rested until Dr Khan instructed the Bury Racial Equality Council to advise him in place of Irwin Mitchell. The inference is that the Council took a more sanguine view of the jurisdiction point than had Irwin Mitchell and on 21 June 2005 they wrote to the tribunal asking it “to exercise its case management powers under rule 10 of the Tribunal Rules [to] set aside the withdrawal notice and list this matter for a pre-hearing review.” 
 
7.	Against that background, the chairman was faced on 5 August 2005 with three opposed applications: (i) Dr Khan’s application for an order setting aside his notice of withdrawal; (ii) Heywood’s application under Rule 25(4) for the dismissal of the withdrawn claim; and (ii) Heywood’s application for a costs order against Dr Khan. The chairman dismissed the first and second applications but allowed the third.  
 
Rule 25 of the Rules
8.	Rule 25 occupies a section of the Rules all on its own headed “Withdrawal of proceedings” and is as follows:
 
“25. Right to withdraw proceedings
 
(1) A claimant may withdraw all or part of his claim at any time – this may be done either orally at a hearing or in writing in accordance with paragraph (2).
 
(2) To withdraw a claim or part of one in writing the claimant must inform the Employment Tribunal Office of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondent the claim is being withdrawn.
 
(3)  The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.
 
(4)  Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. Such an application must be made by the respondent in writing to the Employment Tribunal Office within 28 days of the notice of the withdrawal being sent to the respondent. If the respondent’s application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed).
 
(5) The time limit in paragraph (4) may be extended by a chairman if he considers it just and equitable to do so.”
 
The chairman’s decision on Dr Khan’s application
9.	The chairman referred to the Court of Appeal’s decision in Ako v Rothschild Asset Management Limited [2002] ICR 899, in which, at paragraph 29, Mummery LJ explained that a mere discontinuance of civil proceedings will not ordinarily prevent the claimant from starting a second set of proceedings claiming the same relief (although he may need the court’s permission: see CPR Part 38.7), whereas the dismissal of a claim will ordinarily create a cause of action estoppel preventing a second such claim. He further explained that this distinction could be a trap for the unwary in employment tribunal proceedings, since under the rules then in force the only way in which a withdrawn claim could be brought to a formal end was by its dismissal (see Rule 15(2)(a) of The Employment Tribunal Rules of Procedure in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001).
 
10.	The chairman said that it was apparent that the new Rule 25 represented an attempt to address this potential problem. He said it enables a claimant to bring his claim to an end by withdrawing it (under Rule 25(1) or (2)) and, if he does so, any second claim he may then start on the same facts will not be met with an answer that it is barred by cause of action estoppel. On the other hand, if the withdrawn claim is also dismissed (under Rule 25(4)), then in principle any second claim on the same facts may be met by such an answer. The chairman said that in the present case Dr Khan had not started a second tribunal claim but wanted to continue his withdrawn claim. His conclusion was, however, that Rule 25 provided no way back for Dr Khan: the words of Rule 25(3) that withdrawal brings a claim “to an end” mean what they say and it was not open Dr Khan to have his withdrawal notice set aside. 
 
The appeal against the dismissal of Dr Khan’s application
11.	The question arising on this appeal is whether, contrary to the chairman’s view, an employment tribunal has a jurisdiction on the application of the claimant to set aside a notice of withdrawal. I have had the benefit of clear and succinct arguments on both sides as to whether the chairman was right or wrong on that question. 
 
12.	Miss Sen Gupta’s submission for Dr Khan was that, on the true construction of Rule 25 as a whole, it is implicit that there is a jurisdiction in the tribunal to set aside a withdrawal notice. Her argument turns on the interrelation of paragraphs (3) and (4) of Rule 25. She said that whilst paragraph (3) provides that the proceedings are brought “to an end” upon service of a written notice withdrawing the whole claim (as here), that provision is stated to be “subject to paragraph (4)”. Paragraph (4) then provides that if the tribunal subsequently also dismisses the withdrawn proceedings, those proceedings “cannot be continued” by the claimant. She said it is therefore implicit that, if they are not dismissed, they can be continued. She did not suggest that the withdrawal notice can simply be ignored, but said that it is implicit in paragraphs (3) and (4) that a claimant can apply to the tribunal for leave to continue a claim that he has previously withdrawn; and that the way in which the tribunal will, if so minded, accede to the application is by setting aside the notice of withdrawal. Her submission was that even though paragraph (3) describes withdrawn proceedings as “brought to an end”, the true sense of paragraphs (3) and (4) when read together is that they are not at an end at all. They are alive, but dormant, and are capable of being roused from sleep by a setting aside of the withdrawal notice so as to enable them to be continued. She said that, once the chairman had refused (as he did) to dismiss Dr Khan’s claim, the interests of justice required him to set the withdrawal notice aside since to do so was consistent with the overriding objective and the duty to achieve fairness between the parties. 
 
13.	In his opposing argument for Heywood, Mr McCluggage recognised the arguable inconsistency between (i) the provision in paragraph (3) that withdrawal of the whole claim brings the proceedings “to an end”, and (ii) the language of the last sentence of paragraph (4) which can be read as implying that, unless the proceedings are also dismissed, they can be continued. But he said there is no justification for a resolution of the two paragraphs in the way for which Miss Sen Gupta contended. Having provided in paragraph (3) that the withdrawal of the whole claim brings the proceedings “to an end … on [the] date [of the receipt of the withdrawal notice]”, the draftsman is unlikely to have intended, in paragraph (4), promptly to negative that provision. He said that the resolution of the point is achieved by construing the paragraphs purposively. To that end, he submitted, in agreement with the chairman, that the inference from them is that they were intended to mirror the different consequences which ordinarily apply in civil proceedings to the discontinuance of a claim as opposed to its dismissal. He said that, so construed, they fall into harmony, albeit one that is less than perfect. Paragraph (3) provides that upon the service of a notice of withdrawal of a claim – the equivalent of discontinuance – the proceedings are brought to an end. That means what it says, subject only to (i) the saving in the last sentence of paragraph (3), which enables the making of costs applications; and (ii) the proviso in paragraph (3) referring to paragraph (4), which latter enables the respondent to apply to dismiss the withdrawn proceedings. The final sentence of paragraph (4) is, Mr McCluggage submitted, directed solely at clarifying the consequences of a successful dismissal application. Their sense is that a dismissal of the proceedings will create a cause of action estoppel which will prevent the claimant from starting a second tribunal claim based on the same facts. If, however, the proceedings are not dismissed, it will in principle be open to the claimant to start a second tribunal claim based on the same facts which will not be met with any such defence. Mr McCluggage acknowledged that the draftsman’s language in paragraph (4) falls short of showing in terms that that is what he intended to achieve. But he said that it is the clear underlying intention which can be derived from the draftsman’s efforts read as a whole and that a purposive construction requires any necessary gloss to be put on the language. In particular, he said there is no basis for interpreting paragraph (4) as including an implied jurisdiction in the employment tribunal to set aside a notice of withdrawal, and nor is such a jurisdiction to be found anywhere else in the Rules. 
 
14.	As the opposing arguments raised a question of some difficulty and importance on the interpretation of Rule 25, I reserved my judgment. Promptly after doing so, a third possible interpretation of the paragraphs (3) and (4) occurred to me, on which I invited written submissions from counsel to whom I am grateful for their helpful responses. This interpretation involves a variation on Miss Sen Gupta’s suggested interpretation. It is to the effect that (i) if a paragraph (3) notice is given, and no paragraph (4) dismissal application is made, the proceedings are (subject only to the right to make a costs application) irreversibly at an end, although without prejudice to the claimant’s right to commence a second tribunal claim seeking the same relief; but (ii) if a paragraph (3) notice is given, and the respondent then makes a paragraph (4) dismissal application which fails (or which succeeds but fails on review or appeal), the claimant has an automatic right to continue the withdrawn proceedings. The basis of this is that such an application will ordinarily only fail in circumstances in which the claimant establishes his wish to continue with the cause of action underlying the claim and so Rule 25 adopts the practical approach that he should do so in the same proceedings. This interpretation involves interpreting the final sentence of paragraph (4) as if it read:
 
“If the respondent’s application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant but otherwise they can be (just as they can if the decision to dismiss is successfully reviewed or appealed).”
 
15.	As with most arguments on questions of construction, there is something to be said for each of the three suggested interpretations. In my judgment, however, none provides a clear pointer to the resolution of the particular question I have to decide, and there are obvious difficulties with each of them. The problem arises from the lamentable drafting of Rule 25. 
 
16.	Dealing first with Miss Sen Gupta’s argument, it was no part of her submission that the right to revive the allegedly dormant proceedings arises only if and when a paragraph (4) application to dismiss them has been refused. Her argument is that the effect of a notice of withdrawal is merely to put the proceedings to sleep, so that – provided no dismissal order under paragraph (4) is made - they can at any stage (at least in theory) be revived and continued. I understood her to assert that the necessary condition of such revival is an order setting aside the withdrawal notice. 
 
17.	The difficulties I have with that are as follows. First, since paragraph (3) expressly provides that the effect of a notice of withdrawal of the whole claim is to bring the proceedings “to an end,” why should the court construe the critical words in paragraph (3) as not meaning that at all, but as meaning no more than that the proceedings are merely put to sleep and can be woken up and continued? Secondly, if, as Miss Sen Gupta contended, an order setting aside the withdrawal notice is a necessary precondition of the revival process, why do the Rules (as is accepted) nowhere spell out that the employment tribunal has a jurisdiction to make such an order? In this context, it is relevant that there is no presumption that a withdrawing claimant is or should be entitled to change his mind. Thirdly, Miss Sen Gupta’s argument is wholly dependent on the inference she draws from the words in the last sentence of paragraph (4) that the dismissed proceedings “cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed)”. She asserts that it is implicit in this that, provided no dismissal order is made, the tribunal can entertain an application for the setting aside of the withdrawal notice and the continuation of the proceedings. Apart, however, from the same point that paragraph (4) says no such thing (at any rate in terms), there is also the difficulty that the relevant words are apparently geared only to the consequences of a dismissal application. They are not, on the face of it, directed at providing that, whether or not any dismissal application is made, a claimant can ask the tribunal to allow him to continue the proceedings he has deliberately chosen to withdraw and so bring “to an end”. The “subject to paragraph (4)” in paragraph (3) can, therefore, be said to be directed at no more than providing that the “end” to which paragraph (3) brings the withdrawn proceedings is not so terminal as to preclude the making by the respondent of a dismissal application; and, if so, the focus of paragraph (4) upon the consequences of dismissal may indeed be an ill-drafted groping towards the sense that Mr McCluggage’s interpretation puts upon it. In summary, to the question whether the combined sense of paragraphs (3) and (4) is to confer a jurisdiction on the tribunal to set aside a withdrawal notice, these considerations suggest to me that the answer is several leagues from an “Oh, of course”.  Miss Sen Gupta’s submission requires such a fundamental re-writing of the last sentence of paragraph (4) that it causes me to have serious doubts as to whether it can be correct. The necessary re-writing is as follows (the amendments being in italics):
 
“If the respondent’s application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant but if the application is refused (or any dismissal order is successfully reviewed or appealed) then the tribunal may, on the claimant’s application, set aside the notice of withdrawal and permit the claimant to continue the proceedings; and, for the avoidance of doubt, even if no such dismissal application is made, the claimant may at any time apply to the tribunal to set aside such notice and for permission to continue the proceedings.”
 
18.	Moving on to Mr McCluggage’s argument, that also faces problems. His submission is that what the draftsman had in mind was to mirror the discontinuance/dismissal distinction that applies in ordinary civil proceedings, and in particular to show that mere withdrawal will not necessarily prevent the commencement of a second claim, whereas dismissal will. His argument is that those alternative consequences are conveyed, explicitly as to dismissal and implicitly as to withdrawal, in the last sentence of paragraph (4). 
 
19.	The problem with that argument is, first, that Rule 25 says nothing express about the right of a claimant who has withdrawn his claim to start a second one; and, secondly, nor does it say anything expressly to the effect that a claimant whose withdrawn claim is also dismissed has no right to start a second one. Mr McCluggage does not suggest that Rule 25 purports to deal expressly with the first point. But he does submit that the last sentence of paragraph (4) deals with the second point. If he is right about that, and the true sense of that sentence conveys no more than that a claimant whose withdrawn claim is dismissed cannot start again, that would dispose of Miss Sen Gupta’s argument. But, at the risk of being accused of reading the draftsman’s chosen words as meaning what they appear to say, I confess to a personal difficulty in reading the words “If … the proceedings are dismissed those proceedings cannot be continued by the claimant …” as meaning “If … the proceedings are dismissed the claimant may not commence a second claim against the respondent for the same, or substantially the same, cause of action…” (cf. the language of the old RSC Ord. 21, rule 4). 
 
20.	Mr McCluggage correctly concedes that by no natural process of interpretation can the draftsman’s language be read as having the meaning for which he contends and so he says it must be construed purposively. That, however, involves being able to derive from the scheme of Rule 25 that it does have the general purpose that Mr McCluggage suggests. The difficulty is that Rule 25 contains no clear pointer to the effect that it is purporting to legislate about the ability, or otherwise, of a withdrawing claimant to start a second claim. Ultimately, it all comes down to the last sentence of paragraph (4). If Miss Sen Gupta’s construction of that sentence is correct, that provides an answer to Mr McCluggage’s submission. But if it is not, then I cannot see what sense can be attached to it other than that for which Mr McCluggage contends. This is because I cannot believe that the draftsman either regarded it as necessary, or was intending, to impart the blindingly obvious intelligence that a dismissed claim cannot be continued (he did, not example, think it necessary to say likewise when referring to a chairman’s power to dismiss proceedings under Rule 10(2)(l)); and if his real point was to explain the claimant’s rights in the event that the claim was not dismissed, why did he not do so  expressly?
 
21.	Coming finally to the third interpretation of Rule 25, the one that I suggested to counsel, Miss Sen Gupta adopted this as an alternative to her primary case, but also pointed out that this interpretation would present any respondent who might be considering a dismissal application with a painful dilemma. That is because, on this interpretation, a mere withdrawal would bring the proceedings irreversibly to an end, and the respondent’s only risk would be that the claimant might start a second claim; whereas a respondent’s application for the dismissal of such a withdrawn claim might fail, in which case the claimant would be automatically entitled to revive the withdrawn claim, a result that the respondent would himself have brought about by being so rash as to seek a dismissal. Mr McCluggage made the same point. 
 
22.	Having reviewed the three alternative interpretations that have been canvassed, I am satisfied, for the reasons submitted by both counsel, that the third interpretation that I suggested is not the correct one. I agree with counsel that it can be no part of the scheme of paragraph (4) that a failed dismissal application should have the automatic effect of reviving the withdrawn claim and enabling the claimant to continue it. (Moral: let the judge beware of his own point).
 
23.	The choice is, therefore, between the submissions respectively advanced by Miss Sen Gupta and Mr McCluggage. Struggling as best I can with the remarkable drafting of Rule 25, I have come to the conclusion that Mr McCluggage’s submission represents its most likely intention when read as a whole. The main difficulties I have with Miss Sen Gupta’s interpretation are that: (i) it makes no sense that, if it were the intention to give the tribunal a jurisdiction to set a withdrawal notice aside, neither Rule 25 nor anything else in the Rules includes an express provision to that effect; (ii) this is particularly so bearing in mind that there is no warrant for the view that a withdrawing claimant should be entitled to change his mind (a claimant who discontinues ordinary civil proceedings is not entitled to do so); and if it were the intention of the Rules to introduce such a novel concept, then, again, they could be expected to do so expressly, probably also imposing a time limit for such applications; (iii) paragraph (4) is anyway apparently concerned only with the consequences of a dismissal application and provides at best only the most feeble support for the argument that, if no dismissal application is made, there is anyway an implied right to apply to set aside the withdrawal notice. 
 
24.	I therefore reject Miss Sen Gupta’s argument. I accept Mr McCluggage’s submission that, despite the inadequacy of the drafting, the true sense of the last sentence of paragraph (4) is to convey that the consequence of the dismissal of a previously withdrawn claim will be to prevent the claimant from starting a further claim based on the same cause of action, whereas (by inference) a mere withdrawal of the claim will not. I arrive at this conclusion by the following reasoning. First, for reasons given, I do not accept that paragraph (4) is directed at conferring any jurisdiction to set aside a notice of withdrawal. I consider that its sole purpose is to preserve a respondent’s right to apply for a dismissal of a withdrawn claim. Second, it follows that the last sentence of paragraph (4) is concerned only with the consequences of the success or failure of such an application (whether originally or on a review or an appeal). Third, the primary thrust of the language of that sentence is directed at saying that, if the claim is dismissed, “those proceedings cannot be continued”. Whilst that is more naturally to be read as meaning that the dismissed claim cannot be continued, if that were the intended meaning the message would be so valueless as not to have been worth the draftsman’s candle; and I cannot accept that it is the intended message. In the context of a Rule concerned exclusively with the withdrawal of proceedings, but which also deals with the effect of the dismissal of such withdrawn proceedings, I prefer the view that the Rule was, in the latter respect, directed at providing that, if a withdrawn claim is also dismissed, the claimant cannot start a fresh claim based on the same cause of action as that on which the dismissed claim was based.
 
25.	It follows that I consider that the chairman was right to dismiss Dr Khan’s application for the setting aside of the withdrawal notice. I dismiss Dr Khan’s appeal against that decision.
 
The appeal against the chairman’s costs decision
26.	The other order against which Dr Khan appeals is the decision to order him to pay £1,294.79 to Heywood in respect of their costs of his failed application to have the withdrawal notice set aside. The Rule relevant to the making by the chairman of that decision is Rule 40 (“When a costs or expenses order may be made”), which provides so far as material as follows:
 
“(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.
 
(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.”
 
27.	The chairman dealt with the costs application in paragraph 21 of his judgment. He said that, given the “somewhat opaque way in which Rule 25 is drafted”, it could not be said that Dr Khan’s application for the setting aside of his withdrawal notice had no reasonable prospect of success. He was, therefore, accepting (correctly, in my view) that the application could not be said to have been misconceived. But he said that the basis of Heywood’s application was that Dr Khan’s change of mind following his decision to withdraw his claim had caused unnecessary expense to Heywood, a reference to their costs incurred in resisting Dr Khan’s application. He accepted that those circumstances justified an order compensating Heywood for their costs, saying:
 
“On any view, therefore, an additional hearing has been created by the claimant’s conduct and it is my judgment that it is only right that he should compensate the respondent for that.”
 
28.	He went on to consider the quantum of costs in paragraph 22. No point appears to have been taken that Heywood would (or might perhaps) have incurred part of their claimed costs anyway, since they had chosen to bring on their own unsuccessful dismissal application; and although a point was taken on appeal that the chairman had not considered Dr Khan’s ability to pay (see Rule 41(2)), no such point appears to have been taken before the chairman, and Miss Sen Gupta abandoned it during her submissions. Her sole point was to the effect that the chairman could not reasonably have concluded that Dr Khan’s conduct in making his unsuccessful application was unreasonable conduct justifying a costs order. Dr Khan had, so the argument runs, the extraordinary misfortune of drawing a chairman who somehow managed to make such a mistaken order. It is said that his order was perverse.
 
29.	It is right to note that the chairman nowhere refers to the language of Rule 40(2) and (3) or therefore to the matters on which he had to be satisfied before he could exercise his discretion to make a costs order. Nor did he anywhere even make a finding in his judgment that Dr Khan’s conduct of which Heywood complained was “unreasonable” (it is not suggested it was vexatious, abusive or disruptive). He did, however, refer to the application as being based on Rule 38, which shows that he had the right part of the Rules in mind, although Rule 38 merely opens the relevant costs door: it is Rule 40 which is the relevant rule. 
 
30.	If the matter rested on the chairman’s inadequate exposition in paragraph 21, I would have some concern as to whether he had directed himself correctly in dealing with the costs application. But, on 15 September 2005, Dr Khan sought a review of the costs decision, relying on the assertion that the chairman had made no finding that any of the Rule 40(3) circumstances was satisfied. The chairman refused that application on 23 September 2005 as having no reasonable prospect of success. By his short further reasons he made it clear that his decision in paragraph 21 of his judgment had been based on his finding that Dr Khan’s conduct in causing the unnecessary hearing had been unreasonable conduct within the meaning of Rule 40(3). In my view that fills the reasoning gap in paragraph 21 that should not have been there in the first place. 
 
31.	In support of the appeal, Miss Sen Gupta’s point was that since Dr Khan’s application was, as the chairman accepted, not a misconceived one, there was no justification for treating its making as “unreasonable” within Rule 40(3) such as to deserve the visitation upon Dr Khan of the costs of the application. She referred me to statements in the authorities to the effect that an award of costs in tribunal proceedings is the exception rather than the rule and the reasons for making it must be clear (see Lodwick v London Borough of Southwark [2004] IRLR 554, at paras 23, 26 and 27, per Pill LJ). 
 
32.	In my judgment, this submission mistook the real reason for the costs order. The order was not made because Dr Khan had made a misconceived application or because the application had failed. As Mr McCluggage pointed out, Heywood would have asked for its costs even if the Dr Khan’s application had succeeded. I interpret Heywood’s solicitors as having made the same point in their letter of 13 July 2005 (written in advance of the hearing before the chairman). Heywood’s assertion was not that it was unreasonable for Dr Khan to have made an unsuccessful application. It was that it was unreasonable for him to withdraw the proceedings on day one; then to change his mind on day two; and, in an endeavour to give effect to his change of mind, cause a hearing to take place on day three which would not have been necessary at all but for his change of mind.
 
33.	In my view it is easy to see why Heywood regarded the costs of the further hearing as incurred as a result of unreasonable conduct on Dr Khan’s part: Dr Khan had, in effect, been messing them about. No-one is suggesting that a claimant cannot have a change of mind about how to conduct his litigation; but the respondent is likely to regard it as nerve of a high order for the claimant to expect the respondent to bear his own costs of the consequences of the claimant’s indecisiveness. I accept, however, that that is not quite the point. The chairman’s costs order cannot be justified merely on the basis that it was reasonable for Dr Khan to pay Heywood’s costs (which it obviously was). It can only be justified if the chairman was entitled to find, as he did, that Dr Khan’s change of mind followed by the making of his application was unreasonable conduct of the proceedings. If he was so justified, I cannot see anything wrong with his exercise of discretion to order Dr Khan to pay the costs.
 
34.	I am disposed to accept that not all chairmen would have concluded that Dr Khan’s aforesaid conduct could be characterised as unreasonable. On the other hand, I have no doubt that many would. Whether it could fairly be so characterised appears to me to require an exercise of judgment about which there could be reasonable scope for disagreement amongst chairmen properly directing themselves to the facts and the requirements of Rule 40. In my judgment, therefore, it cannot be said that the chairman was not entitled to make the finding he did or to exercise his discretion in the way he did. It follows that I consider there was nothing perverse about his decision, which was not infected by any error of law. I dismiss this appeal too.
 
Overall result
35.	I dismiss Dr Khan’s appeals against paragraphs (i) and (iii) of the chairman’s judgment.