Appeal No. UKEAT/0601/05/DM 

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 August 2006

Before
HIS HONOUR JUDGE ANSELL
MR D J JENKINS OBE
MR M WORTHINGTON

MR A JAMES	APPELLANT

BLOCKBUSTER ENTERTAINMENT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr A James
(The Appellant in Person)	

Summary
Practice and Procedure – Costs
Costs orders for £10,000 and £1000 did not exceed the statutory maximum order Reg 14.  Order for £10000 made after striking-out order; that order was set aside by EAT and therefore costs order should also be set aside as it resulted from the striking-out order.  Fresh Tribunal to consider appellant’s conduct at conclusion of the case.  Tribunal correct to impose £1000 to reflect the Appellant’s disgraceful conduct at the Tribunal hearing which necessitated a further costs hearing.

HIS HONOUR JUDGE ANSELL

1.	This is an appeal brought by Mr James in respect of two costs orders made at the London (Central) Tribunal on 13 May 2005.  The reasons for those orders were sent to the parties on the 19 May 2005.  The substantive order was a sum of £10,000 ordered to pay towards the Respondent’s costs of defending the proceedings, following the striking-out of two claims that Mr James had brought on the 24 January 2005, together with a further sum of £1000 incurred in respect of a costs hearing on 13 May.  The appeal was brought on two grounds; firstly Mr James argued that the costs order was effectively one order, namely that of £11,000 and that that sum was in excess of the Tribunal’s powers because the maximum fixed sum, as permitted under the Regulations is £10,000; secondly he argued that in respect of the £10,000, the striking-out order that was made has subsequently been set aside on appeal by the EAT and indeed the EAT’s decision has more recently been confirmed by the Court of Appeal, therefore the £10,000 order should be set aside.  He also argued before us today that the £1000 effectively flowed from the striking-out order and since the striking-out order has now been set aside the £1000 should be set aside and he also submits that there were no reasons on the factual basis for the £1000 order to be made.  

2.	The Respondent has not attended today in person, but did put in a notice and also written submissions and we have read those documents.  We have heard today from Mr James, as well as reading all the documents that he has put in and in particular he handed up to us today a supplementary bundle.  

3.	The Respondents contend that firstly the orders were valid because they were separate orders and should not be taken together and argue that there is power under the Regulations to make an unlimited number of costs orders within proceedings, provided that those costs orders do not duplicate each other; in other words that they relate to separate stages of the proceedings and there is not an overlap of legal work involved.  They also argued that even if the striking-out order was set aside, that the costs order should still stay because of the unchallenged Appellant’s conduct in terms of the findings that were made in relation to how he had conducted the litigation leading up to the hearing in January of last year.  Further they argue that the £1000 order was a particular penalty imposed by the Tribunal arising out of the conduct of the Appellant and those with him on 24 January, which necessitated there being a separate costs hearing, a hearing which the Appellant did not attend.  

4.	Schedule 1 Rule 14 f the 2001 Regulations provide that:-

“Costs
(1)	Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party’s representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the brining or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make-
(a)	an order containing an award against that party in respect of the costs incurred by another party;
(b)	an order that that party shall pay to the Secretary of State the whole, or any part, of any allowances (other than allowances paid to members of tribunals) paid by the Secretary of State under section 5(2) or (3) of the 1996 Act to any person for the purposes of, or in connection with, his attendance at the tribunal.
(2)	Paragraph (1) applies to a respondent who has not entered an appearance in relation to the conduct of any parting the proceedings which he has taken.
(3)	An order containing an award against a party (“the first party”) in respect of the costs incurred by another party (“the second party”) shall be-
(a)	where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000;
(b)	where those parties agree on a sum to be paid by the first party to the second party in respect of those costs, an order that the first party pay to the second party a specified sum, being the sum so agreed; or
(c)	in any other case, an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as assessed by way  of detailed assessment (if not otherwise agreed).”

5.	It is necessary for us to look briefly at the history that lead up to the striking-out order and indeed what has occurred since that time.  The first claim was presented on 1 December 2003 and as early as 24 December 2003 further and better particulars were requested and an order was made for those particulars on 11 February 2004.  On 24 February there was said to be a partial reply to that request which lead to a further request by the Respondent’s solicitors.  At a directions hearing on 24 June 2004 those particulars were ordered by 22 July.  The Tribunal later found that those particulars had in fact never been supplied; their error over that aspect of the case was the main reason why the EAT set aside the striking-out order.  A second application was issued on 16 July; the proceedings were consolidated and the hearing was fixed for 24 January 2005 to last 6 days.  A timetable was set for disclosure and the exchange of witness statements which the employers complied with, but the Appellant did not.  There was a consent extension for witness statements to 7 January 2005 and thereafter on a number of days there were dates of when the Appellant was supposed to attend at the solicitor’s office with a view to completing these procedural matters, but that never happened.  Unsigned witness statements were disclosed on 7 January.  Eventually on 19 January an application was made for disclosure or striking-out and the Claimant was given until 21 January for him to comply; again there were a number of phone calls made by the Employer’s solicitors and the Claimant claimed that he was out all day.  

6.	On the morning of the hearing just before 10am the Claimant attended court and had produced 50-60 pages of documents which the employers said they had not seen before, and also produced his signed witness statements and a tape of an incident at the work place that had not previously been disclosed.  The Tribunal’s substantive decision can be seen in paragraphs 19 and 20 of their decision; having set out the history they described it as wilful and deliberate disobedience of court orders, failing to comply with court procedure, pursuing a course of brinkmanship.  Taking all these matters into account and taking into account the overriding objective and not withstanding that it was the first day of a 6 day hearing; they struck-out the consolidated claims.  The Tribunal noted that that lead to a degree of disturbance from the Appellant and those supporting him in the court, as a result of which the Tribunal decided not to deal with an application for costs on that date, but postponed it until the date in May that we have already mentioned when the two orders were in fact made.  

7.	The Employment Appeal Tribunal presided over by the President, Mr Justice Elias, decided to set aside that striking-out order.  The principal reason was that it appeared that whereas the Tribunal had recorded in their decision that the further and better particulars of the claim had never been supplied, some particulars had been sent dated 17 July 2004, although for some reason not received by the Respondents until early October.  The EAT decision said that it was never determined whether those particulars were in time or not, or whether they complied with the original order and request, but to quote from the EAT decision “they do provide some detail of the case which the Claimant was advancing”.  

8.	The EAT found that some of the other alleged infringements of procedure were less important; for example the failure to give proper exchange of witness statements, was shown to be not so serious in that the signed copies contained very few amendments.  The EAT remitted the matter back to a fresh Tribunal, for them to reconsider the issue of striking-out, particularly in the light of whether or not particulars had been supplied.  The EAT did however comment that subject to that matter, that the striking-out order which the original Tribunal had decided to impose was not a wholly erroneous order.  The employers appealed and the Court of Appeal confirmed the EAT’s approach and whilst again their decision rested very much on the issue of the further and better particulars commenting that the other procedural difficulties could have seen overcome, for example they suggested that as far as the late production of the audio tape was concerned, the Tribunal could simply have refused to allow the Claimant to allow it at the hearing.  

9.	The concluding paragraphs of the Court of Appeal decision clearly express the view that a striking-out at a very late stage, in other words in this case, on the first day of a 6 day hearing was something that should not take place unless it was an extreme case as Lord Justice Sedley made clear in paragraphs 16-21.  We are told that the employers are not going to seek a fresh striking-out application and that these two claims together with three others have, now been set down for the hearing for 22 days effectively occupying a Tribunal for the whole month of March 2007.  

10.	Dealing then with the matters raised specifically on this appeal.  We can deal with the first point raised by the Appellant quite briefly because we are satisfied on a proper interpretation of Rule 14, that it is open to a Tribunal to make a whole series of a costs awards throughout proceedings if it felt necessary.  True it is normally only at the conclusion of a case that the Tribunal is asked to focus on that issue, but there may be extreme cases where the conduct of one party or another has been so severe or so serious that a Tribunal is invited at an interlocutory stage to make an orders for costs, and we see no reason at all why similar to all other civil proceedings, a whole series of costs orders should not be made.  If the court is going to impose a fixed sum as opposed to sending it off for assessment, each order must clearly not exceed the sum of £10,000 and it seems to us that as a matter of common sense, there cannot be duplication of work in each costs order and therefore they would have to relate to separate and sequential stages of the proceedings; but we see nothing wrong in a Tribunal, if it felt appropriate, in making one or more costs orders within proceedings.  Clearly this was not one order for £11,000, these were separate orders as can be seen from the judgment of the Tribunal, set out on page 17 of our bundle, where they specifically set them out as separate orders; namely the larger one, said to be on account of the costs in defending of the proceedings and the other order in respect of the costs “in preparing for and attending a costs hearing on 13 May”.  

11.	The order for £10,000 was clearly in our view imposed by the Tribunal following the striking-out of the proceedings.  That striking-out has been set aside and it seems to us therefore that it must follow that the costs order must also be set aside.  We cannot say what a Tribunal might have done had they proceeded with the hearing in the light of the findings of unreasonable conduct of the part of the Appellant.  In our view it was likely that they may well not have dealt with the costs issue at all until the conclusion of the Tribunal case.  If they were going to deal with costs on the first day then they may well have approached the matter on the basis in trying to assess what costs were wasted by reason of the Appellant’s unreasonable conduct over the period leading up to the first day of the hearing.  

12.	The difficulty we face however is that we cannot begin to make fresh findings of fact as to what costs, if any, would have been wasted by reason of the Appellant’s conduct, because of course the case did not proceed on that basis.  There was no indication to us on the papers as to what time the Respondents’ would have needed to assess the further documents or the tape that the Claimant produced in the event that the case was to proceed and it is not for us to try to assess an amount of costs that was wasted.  The only sensible course therefore we can take on the £10,000 is to set it aside but to invite the Tribunal in March at the conclusion of that case, to consider whether any cost penalty should be imposed in relation to the Claimant’s conduct of the litigation leading up to the hearing on 24 January.  We say that because, on the facts as found by the Tribunal, even taking into account the limited criticism from both this court and the Court of Appeal, they found that the Claimant had not conducted himself at all properly in relation to his preparation of the case, particularly in terms of discovery and witness statements leading up to the 24 January.  We do not want that behaviour to be completely forgotten by the Tribunal in March.  It will be entirely a matter for them.  It is entirely within their discretion as to how they deal with the matter; much will turn on whether or not the Claimant is successful in the final outcome and we do not seek to impose any further fetter upon that Tribunal other than to simply invite them to consider these matters.  

13.	What about the order for £1000?  The circumstances leading up to that order were set out in paragraphs 7,8 and 9 of the costs decision in the reasons which were delivered to the parties on 19 May.  Taking matters briefly, on 24 January immediately after Tribunal had announced the striking-out decision, there was a considerable disturbance in the Tribunal.  It is reported that the Claimant accused the Chairman and members of being racists and a number of people in the public gallery joined in those comments, not withstanding that the Chairman required those involved in the disturbance to cease, and asked them to leave the public gallery.  The disturbance continued, people refused to leave court and there was a general disturbance and lack of good order in the court.  It is reported that the Tribunal members were unable to leave the room without forcing their way through the crowd, there were further insults being hurled at the members of the Tribunal, Court Staff and Security Staff; and eventually police had to be called to the premises.  At the end of the decision, the Tribunal record that in their view it was a clear misuse of the legal process in order to vilify others and give gratuitous insult.  Specifically it resulted in the costs hearing being adjourned to another date and the Tribunal found that this was the responsibility of the Claimant and his unreasonable and disruptive conduct.  The Tribunal considered that it was entirely appropriate to make a further order for costs against the Claimant in respect of the costs incurred by the Respondent in preparing for and presenting for their application for costs on 13 May which was assessed at £1000.  

14.	Whilst we appreciate that the basis of the disturbance may be said to be the striking-out order which the EAT and Court of Appeal have now said may not have been appropriate, this does not justify in any way, the disgraceful outbursts which took place.  All courts are prepared to accept in the appropriate way fair comments on their decision, but the appropriate avenue for complaint is to go to an appeal court, which in fact Mr James did and as it turned out was successful.  The incorrect course is to behave in the way the Claimant and his supporters did, indeed if this behaviour had taken place certainly within a Criminal Court, our experience is that it could well have resulted in those responsible being arrested and in due course being possibly sent to prison for contempt.  This court endorses totally the approach of the Tribunal and we will not tolerate this sort of behaviour as a reaction to a Tribunal decision.  The sum of £1000 was clearly imposed to reflect the unreasonable conduct following on from the announcement of the hearing which resulted in a separate costs hearing and we cannot see any grounds at all to interfere with that decision.

15.	Therefore the £1000 order will stand, the £10,000 order will be set aside and this Tribunal will invite the Tribunal hearing the case in March 2007, to consider at its conclusion whether any costs order should be made against the Claimant in respect of his conduct of the litigation leading up to the hearing on 24 January 2005.  We should also add that within the hearing today the Appellant asked us to consider making an order for costs in respect of this hearing.  We are not minded to make any order, particularly bearing in mind the nature of the Claimant’s conduct that the Tribunal found both in relation to the procedural matters and also in relation to the hearing on 24 January.  

16.	We refuse leave to appeal for the reason that we were not satisfied there was any particular point of law involved in these appeals.