Appeal No. UKEATPA/0828/10/JOJ
UKEAT/0256/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On Friday 8 October 2010
	   
	Judgment handed down on 9 December 2010

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)

MR GILES NEAFSEY	APPELLANT

(1) MR A SMALL
(2) READING BOROUGH COUNCIL
(3) MR B JONES
(4) UNITE THE UNION	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR GILES NEAFSEY 
(The Appellant in person)	
For the Respondent	MS AKUA REINDORF
(of Counsel)
Instructed by:
Head of Legal Services
Reading Borough Council
Civic Centre Reading
Berkshire
RG1 7WA	

SUMMARY

PRACTICE AND PROCEDURE – Costs

Appeal allowed against wasted costs order because Judge gave inadequate reasons 

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)  

INTRODUCTION
1.	There are two related matters before me arising out of proceedings in the Reading Employment Tribunal, cases no. 2702409/2009 and 2704676/2009 (to which I will refer for short as “2409” and “4676”).  Both concern applications for wasted costs against the solicitors acting for the Claimant, a firm called TSP Legal, of which the sole principal is Mr. Giles Neafsey.  The parties before me are Mr. Neafsey, who has represented himself, and one of the Respondents in the Tribunal proceedings, Reading Borough Council, which has been represented by Ms Akua Reindorf of counsel.

PROCEDURAL HISTORY

2.	In order to explain the issues falling for determination, I need to set out the procedural history in some detail.  

3.	The Claimant in both claims is Mr. Andy Small.  He was dismissed by the Council with effect from 19th December 2008 for alleged misconduct.  On 14th September 2009 he was reinstated following an appeal, and a final written warning was substituted.   

4.	On 15th June 2009 the Claimant commenced claim no. 2409 against the Council, for unfair dismissal and racial and disability discrimination, and against a Mr. Brian Jones, an official of Unite the Union, apparently for racial discrimination.  Although he had at that stage already been receiving some advice from Mr. Neafsey, the ET1 appears to have been drafted by the Claimant personally, and Mr Neafsey only came on the record at some point subsequently.  Claim no. 4676 was commenced on 6th December 2009, following the Claimant’s reinstatement, and is against the Council alone.  It complains that the final written warning was discriminatory.  I need say no more about the substance of the claims.

5.	On 5th November 2009 a case management discussion took place in 2409 before Employment Judge Hill.  She ordered a pre-hearing review before a Judge sitting alone, to be listed for 3rd March 2010 with a time estimate of one day, in order to determine a number of specified issues as follows: 

7.1	“Whether the Tribunal has jurisdiction to consider the Race Discrimination complaint, namely: 
Whether having regard to the time limit contained within Section 68(1) of the Race Relations Act 1976 (three months) a Tribunal has jurisdiction to consider the Claimant’s complaint of race discrimination (both Respondents)

7.2	Whether the Tribunal has jurisdiction to consider the Disability Discrimination Act:
Whether having regard to the time limit contained within paragraph 3 of schedule 3 of the Disability Discrimination Act 1995 (three months) the Tribunal has jurisdiction to consider the Claimant’s complaint of disability discrimination (both Respondents) 

7.3	Whether the Tribunal has jurisdiction to consider the complaint of unfair dismissal:
Whether having regard to the effective date of termination of the Claimant’s employment and the time limit contained within Section 111(2) of the Employment Rights Act 1996 (three months) the Tribunal has jurisdiction to consider the Claimant’s complaint of unfair dismissal (First Respondent)

7.4	Whether the complaint of unfair dismissal should be struck out as having no reasonable prospect of success as the Claimant has been reinstated

7.5	Whether the complaint against the Trade Union Representative Mr Jones, should be struck out as having no reasonable prospect of success

7.6	Whether Unite the union should be joined as a third Respondent to these proceedings.”

Judge Hill also considered that the ET1 did not clearly identify the issues as regards the discrimination claim.  Para. 3 of her order reads as follows:

There is some confusion on the part of the First Respondent as to the extent of the claim.  To that end, I ordered that the Claimant serve on the two Respondents and the Tribunal a table giving the following information:

3.1	The date of the incident relied on 
3.2	The information in relation to each incident of who, what and where
3.3	Who is the comparator for the purposes of the incident
3.4	The head of claim relied on for the purposes of the incident; and, where relevant

3.5	The date of the grievance relating to that incident.

6.	Mr. Neafsey on the Claimant’s behalf sought a review of the order made by Judge Hill in various respects.  One was that the PHR should be before a full Tribunal of three members.  On 8th December 2009 Judge Hill made a direction to that effect.  

7.	On 3rd December 2009 Mr. Neafsey served a document purportedly complying, at least in substance (for reasons which he gave, he presented it as a schedule rather than a table), with para. 3 of Judge Hill’s order.  The Council objected that it did not properly comply with the order (and not only because it was not in schedule form) and wrote to the Tribunal seeking an order requiring full compliance.  Extensive e-mail correspondence followed.  In particular, Mr. Neafsey made applications for elaborate disclosure prior to the PHR; and he also contended that a preliminary hearing on jurisdiction was wholly inappropriate, notwithstanding that that was what Judge Hill had just ordered, citing in particular the decision of this Tribunal in Sutcliffe v. Big C’s Marine Ltd [1998] ICR 913.  Although there was no explicit application for Judge Hill’s order to be revoked, the effect of Mr. Neafsey’s contention was that the forthcoming hearing should be converted to a case management discussion at which the various issues raised in the correspondence could be resolved.  

8.	That e-mail correspondence was put before Judge Gumbiti-Zimuto.  On 22nd January 2010 the Tribunal wrote to the parties recording his directions as follows:

The prehearing review listed for 3 March will remain listed.  The issues to be considered at the pre hearing review are to include

1.	whether the claimant has complied with paragraph 3 of the order made on November 2009 and 

2.	whether the claims 2702409/2009 and  2704676/2009 should be considered together.

Following the pre hearing review a case management discussion can take place to consider what further case management direction should be given.

9.      Mr. Neafsey interpreted that letter, both in his subsequent correspondence and – to anticipate – in his submissions before me, as revoking Judge Hill’s order for the trial of the jurisdictional issues identified at para. 7 of her order – i.e. as accepting the contention which he had been advancing in correspondence.  That interpretation seems to me wholly unarguable.  The terms of the letter are perfectly plain.  The pre-hearing review was to continue in accordance with Judge Hill’s order, but the two issues which Judge Gumbiti-Zimuto identified would be added to the agenda.  If he had intended to revoke any part of Judge Hill’s order he would certainly have said so explicitly.  Mr. Neafsey’s misreading of the letter is so unreasonable that it raises the question whether it was genuine.  Ms Reindorf submitted to me that it was “almost wilful”.  I am prepared to acquit Mr. Neafsey of any deliberate misreading.  He is evidently a man who feels very strongly about his cases.  He had convinced himself that Judge Hill’s order that the jurisdictional issues be dealt with by way of preliminary issue was wrong and indeed that the seeking of such an order constituted an oppressive tactic on the part of the Respondents’ advisers; and in that state of mind he read into Judge Gumbiti-Zimuto directions what he wanted to find there.  (It may also be relevant that, as he told me, he is “new to employment law” although he has over ten years’ experience in practice.)

10.      The parties duly attended for the hearing listed for 3rd March 2010.  The Claimant was represented by Mr. Neafsey, the Council by Ms Reindorf and Mr. Jones and Unite (“the Union parties”) by Mr. Oliver Assersohn of counsel.  The hearing was not listed before a full tribunal as directed by Judge Hill but only before a single Judge, Employment Judge Warren.  This is a puzzle. Mr. Neafsey says that what must have happened was that Judge Gumbiti-Zimuto, having accepted that the hearing would now proceed only as a case management discussion, had revoked Judge Hill’s order for a full tribunal, though he accepts that there is no written direction to this effect.  That view, however, depends on his misreading of Judge Gumbiti-Zimuto’s directions and cannot be right.  For her part Ms Reindorf was unable to offer any explanation and told me that, so far as she could recall, Judge Warren had offered none.  I think the listing before a Judge alone was simply an oversight by the tribunal office: Judge Hill’s original order had, after all, been for a hearing in front of a Judge alone, and it would not be surprising if the different direction which she subsequently made in response to Mr. Neafsey’s review application had been overlooked.  

11.      I do not have an authoritative account of the course of the hearing.  I have been given the notes made of it by Ms Reindorf and by Mr. Neafsey’s assistant, but neither is complete and Mr. Neafsey’s assistant’s notes are hard to follow.  I do not have the Judge’s own notes.  There is however broad agreement as to the shape of the hearing.  It can be summarised as follows.

(1)        Between the start of the hearing and about noon there was a review of various items on the agenda.  Mr. Neafsey made clear that he believed that the only issue was the inadequacy of the particulars and whether the two claims should be heard together: that is, he maintained his wrong-headed view of the effect of Judge Gumbiti-Zimuto’s order.  However, he did address some of the issues directed by Judge Hill.  In particular, he agreed to withdraw the unfair dismissal claim against the Council (point 7.4), and he tried to address the Judge on the related questions of whether the claims against Mr. Jones should be struck out and whether Unite should be joined (points 7.5-6). 

(2)       In the course of that discussion the Judge made it clear that the essential starting-point was to identify the issues, which in practice meant deciding whether the Claimant’s particulars complied with Judge Hill’s order.  After some unsatisfactory debate about that question he sent the parties out to go through the particulars provided, so that the Respondents could say where they were defective and, hopefully, Mr. Neafsey could  provide clarification.  

(3)       That exercise duly took place but it did not prove very productive.  When the parties returned at 2.10pm the Judge was told that some progress had been made with the particulars against Mr. Jones but that the particulars against the Council had not been reached.

(4)      In those circumstances the Judge took over the exercise himself.  He went through the particulars against Mr. Jones one by one trying to obtain clarification of what precisely was alleged.  

(5)      The Judge then proceeded to consider the proper parties to the claim as so clarified.  He made an order joining Unite as a party, in substitution for Mr. Jones, in no. 2409, on the basis that it was the union, and not Mr. Jones personally, who was the proper respondent in respect of the matters complained of.  However, he considered the claim against Unite to be prima facie out of time and he made a deposit order in the sum of £500.  Mr. Jones applied for costs, but the Judge adjourned the application to be heard on a subsequent occasion.  

(6)      By this time it was late in the afternoon.  The case against the Council had not been considered at all.  The Judge believed that that case remained inadequately defined.  He made a further order requiring particularisation of the claim, in similar though not identical terms to para. 3 of Judge Hill’s order.  

(7)     In these circumstances there was no question of him being able to hear the substantive issues originally directed by Judge Hill.  Against that background Ms Reindorf made an application for a wasted costs order, on the basis that the principal business of the PHR as regards the Council had never been reached and that that was Mr. Neafsey’s fault.  The Judge invited Mr. Neafsey to respond, which he did: he made no application for an adjournment.  The Judge took the view, for reasons to which I shall have to return, that the ineffectiveness of the PHR was entirely Mr. Neafsey’s fault, and he made a wasted costs order against him in the sum of £2,500.  He gave brief oral reasons for his decision, including the observation that “you do seem to have the ability to make complicated the most simple of matters”. 

12.      The Judge’s power to make a wasted costs order against Mr Neafsey derived from rule 48 of the Employment Tribunal Rules of Procedure, which read, so far as material, as follows:

(1)   A tribunal or Employment Judge may make a wasted costs order against a     party’s representative.

(2)	  In a wasted costs order the tribunal or Employment Judge may – 

(a)   … order the representative of a party to meet the whole or part of any wasted costs of any party, …
   (b)    …

(3)   “Wasted costs” means any costs incurred by a party- 

(a)  as a result of any improper, unreasonable or negligent act or omission on the part of any representative; or
   (b)  which, in the light of any such act or omission occurring after they were incurred, the tribunal considers it unreasonable to expect that party to pay.

(4) - (5) … 

(6)   Before making a wasted costs order, the tribunal or Employment Judge shall give the representative a reasonable opportunity to make oral or written representations as to reasons why such an order should not be made.  The tribunal or Employment Judge may also have regard to the representative’s ability to pay when considering whether it shall make a wasted costs order or how much that order should be.

(7) - (9) …  

13.      On 9th March 2010 – that is, at a point when he had not yet received the Judge’s written order – Mr. Neafsey made an application for a review of the wasted costs order.  The application was over nine pages long and, with all respect to Mr. Neafsey, diffuse and ill-structured.  On 16th March that application was rejected, the Judge’s reason being stated simply as that it had no reasonable prospect of success.  

14.      On 11th April 2010 Mr. Neafsey e-mailed the Tribunal withdrawing the claim against Unite, and it was duly formally dismissed the following day.  On 23rd April Unite’s solicitors applied to the Tribunal for a wasted costs order against Mr. Neafsey, essentially on the basis that the claim which had now been withdrawn had been misconceived from the start.  That application was listed by the Tribunal for a hearing on 10th June.  

15.      On 1st June 2010 Mr. Neafsey applied for a number of orders in relation to the upcoming hearing between himself and the Union parties and for an adjournment in order to enable those orders to be complied with.  That application was dismissed by Judge Warren on 7th June.  

16.      In the event, Mr. Neafsey and the union parties entered into negotiations for the resolution of the wasted costs claim.  The hearing of 10th June was adjourned at their joint request, and agreement was subsequently reached. 

THE APPEALS

17.      Mr. Neafsey has appealed against both the wasted costs order of 3rd March 2010 (formally promulgated on 23rd March) and the refusal to postpone the hearing of 10th June: the two appeals are numbered respectively UKEAT/256/10 (formerly EATPA/0633/10) and EATPA/828/10 (“256” and “828” for short).  As regards 256, Judge Clark on 25th May directed a full hearing.  As regards 828, Judge Reid Q.C. on 9th June ruled that the appeal should be rejected under rule 3 (7) of the Employment Appeal Tribunal Rules 1993 (as amended); but Mr. Neafsey has exercised his right to a hearing under rule 3 (10).  

18.      Both matters were formally before me.  As regards 828 – that is, the rule 3 (10) hearing – Mr. Neafsey, having settled the application by the union parties, does not wish to pursue the appeal against them; but in an e-mail to this Tribunal dated 3rd August he says that he wishes to continue with the appeal “against Reading Borough Council” on the basis that it now “relates solely … to … Judge Warren’s conduct (a practice direction 11 matter)”.  I have sought to elucidate with him what this means.  What it comes down to is that he wishes me to express a view on whether Judge Warren’s refusal of the adjournment (and, I think, other aspects of his handling of the case, e.g. the refusal of the review) was not only wrong but “improper”.  I am not prepared to do so, or to allow the appeal to proceed for that purpose.  The fact is that there is no longer any live dispute between Mr. Neafsey and any other party to which the question of Judge Warren’s refusal to postpone the hearing of 10th June could relate: he has settled with the union parties, and the orders in question did not affect the Council in any way.    It is not the function of this Tribunal to review judicial decisions as to which no real issue now arises, simply in order to pass judgment on the Judge’s competence or conduct.  Accordingly, having heard submissions from Mr. Neafsey, I ruled at the outset of the hearing that the application under rule 3 (10) should be dismissed.    

19.      The only live appeal before me is thus 256, i.e. the appeal against the wasted costs order.  

THE WASTED COSTS ORDER AND REASONS

20.      The document promulgated by the Judge on 23rd March 2010 is in two parts, the first headed “Orders” and the second headed “Reasons”. 

21.       Para. 7 under the Orders section reads as follows:

I order that the Claimant’s representative do pay wasted costs of £2,500 in respect of the first Respondent’s wasted costs of attendance at the Tribunal and in respect of preparation for the Pre-Hearing Review which did not proceed as the Claimant’s representative was unable to clarify the issues and it was not possible to decide whether it was appropriate for not to proceed with a Pre-Hearing Review to consider whether all of the claims of race and disability discrimination were out of time.  

22.      Paras. 1-6 of the Reasons read as follows:

1. This matter came before the Tribunal for a Pre-Hearing Review – to consider various matters set out in Employment Judge Hill’s Order of 5 November 2009.

a)   Whether the claims of race and disability discrimination were in time:
      b)  Whether the unfair dismissal claim was in time or whether it should be   struck out as the Claimant had been reinstated: and 
c)   Whether Mr Jones should be dismissed from the proceedings and whether    Unite the Union should be joined.

2.	There was a requirement that the Claimant should identify the precise acts of discrimination relied on and a requirement to exchange written statements.

3.	The Claimant had not satisfactorily identified the acts relied on as amounting to discrimination and had not made a witness statement.  In truth, matters had not progressed much since November 2009, although the Claimant’s representative had attempted to identify the issues.  It does seem Mr Neafsey aims to make simple matters as complex as possible.

4.	I considered that there could be no Pre-Hearing Review unless the precise acts of discrimination could be identified and even then in the event that at least one of the acts was in time, then there would be no point in a Pre-Hearing Review as time points/jurisdiction would more properly be dealt with at the main hearing.

5.	Despite allowing Mr Neafsey an adjournment of 3 hours (including lunch hour) he only produced an attempt at the list of issues in the claim against the Union.

6.	Consequently, I made the orders above.

23.      After dealing with various other matters, the Judge returns to the question of wasted costs at para. 12 which reads as follows:

12.   I awarded wasted costs against Mr Neafsey as he had not prepared the case to proceed in accordance with  the Order made at the Pre-Hearing Review.  It was unreasonable behaviour on the part of the Claimant’s representative.  The Respondent’s time was totally wasted.  Directions which were eventually given could have been dealt with over the telephone in half an hour.  In the event the Tribunal sat till 5.30pm.

The reference to “the Order made at the Pre-Hearing Review” is clearly a slip: evidently the Judge meant to refer to Judge Hill’s order at the CMD on 5th November 2009.

THE GROUNDS OF APPEAL IN 256

24.      The way Mr. Neafsey expresses his grounds of appeal varies between the Notice of Appeal and his skeleton argument, both of which I have to say are, again diffuse and not at all clearly structured; and at least one further point was made in the course of the hearing before me.  That being so, it does not make sense to try to address his points as they appear in either document.  I will instead consider them under four headings – (1) adequacy of reasons; (2) substance; (3) procedural fairness; and (4) jurisdiction.  

(1)      ADEQUACY OF REASONS
 
25.      Mr. Neafsey submitted that it was necessary as a matter of law that the Judge should in his Reasons have set out the material terms of rule 48 and referred to the principles established in the case-law.  I agree that that would have been a healthy discipline, but it was not legally essential provided that the Judge dealt adequately with the disputed issues.  

26.      As to that, the Judge made it adequately clear that he considered that the Council’s costs of the day had been substantially wasted.  The real question is whether he adequately identified the “improper, unreasonable or negligent” acts or omissions on which he relied as having led to that result.  I am bound to say that I do not think he did.  At para. 12 he says that Mr. Neafsey “had not prepared the case to proceed in accordance with the order made at the [CMD]”.  That means that he had not complied properly with para. 3 of Judge Hill’s order.  The non-compliance can only relate to the particulars in respect of the claim against Mr. Jones, since no time was spent on the particulars of the claim against the Council.  The Judge does not give any details of that non-compliance, or why it was unreasonable or negligent (no question of impropriety arises).  That might not matter if that was clear from a comparison of the particulars as supplied with the issues as defined, following the clarification process, in the order of 23rd March; but in my view it is not.  The clarified issues are undoubtedly rather more tightly expressed, and there are some differences of detail; but it is impossible to be sure in what respects the Judge regarded the original pleading as negligent.

27.      I strongly suspect that the Judge’s real criticism of Mr. Neafsey is not so much the defects in the particulars as the time it took to arrive at the very limited degree of clarification which was indeed achieved, which he believed was Mr. Neafsey’s fault.  That may be what he means by referring at para. 7 of the Order (as opposed to the Reasons) to Mr. Neafsey being “unable to clarify the issues”; and I note also his reference at para. 3 of the Reasons to Mr Neafsey “making simple matters as complex as possible”.  If so I have considerable sympathy with him.  Both Ms Reindorf’s notes of the hearing and my own experience of his advocacy (written and oral) suggest that Mr. Neafsey’s submissions were not very clear or helpful.  But that is not the basis on which the Judge put it, and a finding that Mr. Neafsey’s advocacy was negligent would have been a serious matter requiring at least some particularisation.

28.      I must therefore hold that the Judge’s decision was inadequately reasoned.

29.      Mr. Neafsey feels aggrieved not only (I might indeed say not mainly) at the inadequacy of the Judge’s original reasons but at his failure to amplify those reasons in dealing with his application for a review.  But if, as I have held, the original reasons were inadequate that point adds nothing.  I would however say that, while some judges, mindful of the fact that the original application had been made without any prior notice to Mr. Neafsey, might have been prepared to address, albeit shortly, the fuller grounds now advanced, I can see nothing wrong in the Judge preferring a more summary approach, particularly having regard to the way in which the application was drafted.  

(2)      SUBSTANCE

30.      If I were satisfied that the Judge had reached the right decision even though he had failed to give proper reasons it would be open to me to dismiss the appeal nonetheless.  But I do not think that that is a finding that I can properly make.  There are, as I have already indicated, a number of respects in which Mr. Neafsey’s conduct of the matter between the CMD before Judge Hill and PHR before Judge Warren might be criticised – including the pleading of the particulars, the correspondence leading up to Judge Gumbiti-Zimuto’s order, his wrong-headed construction of that order, and the way that he conducted the hearing before Judge Warren.  As regards the latter, besides the unfocussed nature of his submissions, the notes suggest that, as before me, he showed an inappropriate tendency to personalise matters, both by relying on personal matters about himself and his firm and by making allegations of oppressive behaviour by the Respondents’ solicitors and counsel.  But it could not be right for me on this appeal to decide whether the conduct in question was unreasonable or negligent or - perhaps more problematically – to decide whether it was that conduct which led to the Council’s costs being wasted.  That is quintessentially a matter for the assessment of the Judge who conducted the hearing.

31.      It follows that the application will have to be remitted for further consideration.  One point which may require consideration in connection with whether any costs were in fact wasted is whether the time issues which the Council wished to have determined could in any event have been decided by Judge Warren on 3rd March, given Judge Hill’s direction for a full tribunal. 

(3)     PROCEDURAL FAIRNESS

32.      Mr. Neafsey submitted that although he was given the opportunity to reply to Ms Reindorf’s application it had taken him by surprise and he had not had the chance to marshal his thoughts in opposition.  In view of my conclusion on the previous two points it is not necessary for me to reach a view on that criticism.  I would only say that while I can understand the Judge’s wish to resolve the matter there and then, thus saving further costs for all concerned, it may have been unwise to deal with a wasted costs application at the very end of a long day.  But it was open to Mr. Neafsey to have applied for an adjournment and he did not do so.

(4)      JURISDICTION

33.      At the hearing before me Mr. Neafsey contended, though the point was in neither his Notice of Appeal nor his skeleton argument, that a wasted costs order can only be made at a “Hearing” under rule 26 (1).  Rule 26 reads as follows:

(1)      A Hearing is held for the purpose of determining outstanding procedural or substantive issues or disposing of the proceedings.  In any proceedings there may be more than one Hearing and there may be different categories of Hearing, such as Hearing on liability, remedies, costs (in Scotland expenses) or preparation time.

(2)      Any Hearing of a claim shall be heard by a tribunal composed in accordance with section 4 (1) and (2) of the Employment Tribunals Act.

(3)       … 

(4)      The President, Vice President, or Regional Employment Judge shall fix the date, time and place of the Hearing and the Secretary shall send to each party a notice of the Hearing together with information and guidance as to procedure at the Hearing.  

Mr. Neafsey pointed out that the scope of a PHR is defined by rule 18 (2) as follows

(2)  At a pre-hearing review the Employment Judge may carry out a preliminary consideration of the proceedings and he may – 

(a) determine any interim or preliminary matter relating to the proceedings;
(b)  issue any order in accordance with rule 10 or do anything else which may be done at a case management discussion;
(c)   order that a deposit be paid in accordance with rule 20 without hearing evidence.
(d)   consider any oral or written representations of evidence;
(e)    …

Mr. Neafsey’s case was that since orders for costs are expressly mentioned in rule 26 and not mentioned in rule 18 the intention must be that they may only be made at a Hearing.  One consequence of that in the present case would be that a separate hearing would have to have been afforded so that the notice requirements of rule 26 (4) could be complied with.

34.      Ms Reindorf contended that Mr. Neafsey’s submission was wrong because rule 18 (2) (b) makes it clear that a Judge at a PHR may make “any order in accordance with rule 10”; and rule 10 (1) allows a Judge to “make an order in relation to any matter which appears to him to be appropriate”, not limited to orders of the kinds identified under para. (2).  I am myself not entirely sure that, despite the width of language of rule 10, it is apt to cover orders for costs, which are the subject of their own self-contained provisions.  In my view the answer to Mr. Neafsey’s point is that it is in the nature of an order for costs – whether under rule 40 or rule 48 – that it can be made at any hearing to which it is ancillary.  It would be absurd if an Employment Judge or Tribunal, having decided at a PHR (say) to strike out a claim or resolve an issue as to disclosure in circumstances where an order for costs were appropriate, would have to adjourn to a separate Hearing under rule 26.  The fact that orders for costs are mentioned in rule 26 (1), explicitly by way of example, does not mean that they can only be made at a Hearing.

CONCLUSION

35.      The wasted costs order made by Judge Warren is bad in law because it was inadequately reasoned.  The Council’s application must be remitted to the Tribunal for redetermination.  The Tribunal will need to address with specificity both (a) the issue of whether Mr Neafsey was guilty of any act or omission falling within rule 48 (3) (a) and (b) whether any such acts or omissions led to the Council incurring costs which would otherwise have been saved.  Ability to pay is in principle also in issue, although Mr. Neafsey took no point on it at the hearing of 3rd March. 

36.	It is plainly right that such reconsideration should be by Judge Warren if available, since he will be far better placed than any other Judge to consider the issues which arise.  Although Mr. Neafsey has made allegations of bias against Judge Warren, there is no basis for them besides the fact that he believes that the various orders that he made were wrong.  I see nothing to justify a reasonable belief that he could not deal fairly with this application if remitted.  I would add that though he will of course have his own notes of the hearing he is likely to be assisted by sight of Ms Reindorf’s notes as supplied to me, and those of Mr. Neafsey’s assistant, though the latter will be of more assistance if they are re-typed.  

37.	It will be a matter for the Judge what procedure he follows. A further hearing is not formally necessary, but if he decides to proceed by the way of written representations he will need to have a clear and particularised statement from the Council of the basis on which the application  is made, to which Mr Neafsey can then be directed to respond.

38.      The Council may however wish to consider whether pursuing this application makes sense in the circumstances as they now are.  I direct that it if wishes to do so it should serve notice to that effect on Mr. Neafsey no later than 23rd December, giving a succinct summary of its grounds.  In default of such service the application will stand dismissed.