Appeal No. UKEAT/0182/12/ZT

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

                                                                                                                At the Tribunal
                                                                                                                On 30 August 2012

Before
HIS HONOUR JUDGE DAVID RICHARDSON
MS G MILLS CBE
MR T HAYWOOD

MRS H PUROHIT	APPELLANT

(1) HOSPIRA (UK) LTD
(2) MS E MARSH	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MRS H PUROHIT
(The Appellant in Person)
&
MR B PUROHIT
(Representative)	
For the Respondents	MR NICK DE MARCO
(of Counsel)
Instructed by:
Squire Sanders Hammonds LLP Solicitors
7 Devonshire Square
Cutlers Gardens
London
EC2M 4YH

SUMMARY
PRACTICE AND PROCEDURE – Costs

Three grounds of appeal, disparate in nature, arising out of a costs order.  

The Tribunal’s reasons for not taking the Claimant’s means into account apparently left out of consideration her witness statement to the effect that she had no savings or investments; remitted for Tribunal to take this factor into account.  

In all other respects, appeal dismissed.

HIS HONOUR JUDGE DAVID RICHARDSON 
Introduction
1.	This is an appeal by Mrs Hetal Purohit (“the Claimant”) against a judgment of the Employment Tribunal sitting in Watford (Employment Judge Bedeau presiding) dated 27 September 2011.  By its judgment the Tribunal ordered the Claimant to pay costs to Hospira (UK) Ltd and Ms E Marsh, (“the Respondents”) in the sum of £8,000.  

2.	The appeal was originally brought on wide ranging grounds.  Most of these grounds, however, were disposed of at a hearing before HHJ Serota QC on 4 April 2012; we have transcript of his judgment which we shall take as read.  He allowed three short points through to this full hearing.  

3.	Today the Claimant attended with her husband having presented in advance a substantial skeleton argument.  She told us that she thought that she would be represented by an advocate arranged by the Appeal Tribunal: but she had no basis for thinking this.  She had hitherto, except at the hearing before HHJ Judge Serota QC, been represented by her husband who had a substantial hand in preparing the skeleton argument on her behalf.  He represented her today fluently and with encyclopaedic command of the papers and the issues.  

The procedural background
4.	The Claimant was employed by Hospira (UK) Ltd as a Technical Assistant with effect from 5 January 2004.  It happens that her husband was also employed by Hospira (UK) Ltd until his dismissal for misconduct on 8 June 2009.  He brought proceedings for unfair dismissal and race discrimination which were dismissed in September 2010.

5.	The Claimant brought proceedings herself alleging sex and race discrimination, victimisation and sexual harassment.  The hearing of these proceedings lasted for some 10 days.  On 7 April 2011 the Tribunal gave judgment dismissing the allegations in their entirety.  The Claimant’s appeal was rejected in the Appeal Tribunal by a judgment of HHJ McMullen QC dated 29 June 2011.  The Claimant sought to appeal to the Court of Appeal, but permission to appeal was refused on paper by Elias LJ on 18 October 2011.  He said the appeal was totally without merit and refused to allow an oral hearing.

6.	It is relevant to mention that the Claimant also sought a review of the judgment.  One ground related to the admission of fresh evidence.  The Employment Judge delivered a decision on 25 May 2011 refusing the application for a review.  He dealt with the application to admit fresh evidence, saying that the evidence which it sought to admit was not directly relevant to the issues considered to by the Tribunal and had limited evidential value.  The Claimant appealed this decision to the Employment Appeal Tribunal but she was out of time for doing so by some 122 days and the appeal was rejected.  

7.	Following the dismissal of the claim, the Respondents applied for costs.  On 11 April the Tribunal gave directions.  The Claimant was ordered to serve a witness statement in relation to her means by 3 May 2011 and to attach to her statement documents in relation to any savings, share certificates and any investments.  She was further ordered to serve her response to the application for costs by 31 May.  The Tribunal recorded that it would meet in the absence of the parties to consider the application on paper.

8.	The Tribunal’s written reasons for the award of costs in the sum of £8,000 were sent to the parties on 27 September 2011.  The Tribunal found that in part the Claimant’s claim was misconceived and that her conduct of the claim was unreasonable, not least in placing reliance on a diary and aide memoir which she knew were not contemporaneous.

9.	Except in three respects the Claimant’s appeal against the costs judgment was dismissed at the preliminary hearing.  The three remaining elements relate to: (1) the Claimant’s means; (2) the Claimant’s application for a preparation time order and (3) the question of fresh evidence.

Means
10.	The Tribunal said the following concerning the Claimant’s means;

“28. As regards to her ability to pay, she had not complied with the Tribunal’s order that she should prepare and serve a witness statement with supporting evidence.  There was a single page photocopy of her bank statement showing a balance of £172.00.  She lives in rented accommodation.   We have not been told about any savings, investments or liabilities.  We cannot, realistically, take her means into account.”

11.	The Claimant said she had complied with the Tribunal’s order and her representative had served a signed statement by PDF attachment to an email dated 2 May 2011.  While the statement contains a great deal of other material, it did in paragraphs 13 and 14 set out some information about her means.  In particular at paragraph 13 of the witness statement says;

“I have got no other savings and I have no investment income or savings at all.  I have attached my bank statement which is printed online for the reference of the Tribunal.”

12.	The Claimant says the Tribunal cannot have taken this statement into account.  She had specifically said that she had no other savings apart from what was in her bank account and no investment income.  Further, the order had required her to give information about her means rather than her liabilities.

13.	In our judgment the last three sentences of paragraph 28 of the Tribunal’s reasons are problematic.  The Tribunal said that it had not been told about any savings, investments or liabilities.  In fact, it had expressly been told that there were no savings or investments.  It is possible either that it had not read the statement or (as Mr De Marco suggests) that it characterised the statement in rather loose language.  

14.	The Tribunal has a wide discretion whether it takes means into account and, if so, how; but when deciding whether to exercise that discretion, it must take properly into account such material about means as has been placed before it.  The statement that it had not been told about any savings, investments or liabilities does not accurately take into account what is said in the Claimant’s witness statement.

15.	On that narrow ground it seems to us that the appeal should be allowed to the extent of requiring the Tribunal to consider afresh that which the Claimant put before it, including the sentence that she had no savings or investments.  We make it clear that in all other respects the Tribunal’s reasons for making an order for costs stand in their entirety.  The only requirement is that the Tribunal should look again at paragraph 13, take into account the Claimant’s evidence that she had no savings or investments and decide afresh whether to take means into account and, if so, how in these circumstances.

16.	We make it clear, if it is not already clear to the Claimant, that the Employment Tribunal has a discretion whether to take her means into account.  If in its discretion it decides not do so, her means may subsequently be taken into account by the County Court if the Respondent brings proceedings to enforce the judgment.

Preparation Time
17.	The Claimant’s representative made an application for a preparation time order.  The Tribunal rejected this application.  It said:

“30. In relation to the preparation time order made by Mr Purohit, he had not articulated the grounds in support of the application. He merely set out the time he spent in preparing the case.  He made reference to the respondents’ late disclosure of documents but had not stated in what way that added to his costs.  We also bear in mind that the claimant lost her case against the respondents.  We have concluded that as Mr Purohit had not set out the basis for his application, it is refused.”  

18.	On behalf of the Claimant it is argued that the Tribunal erred in law in holding that her representative had not set out the basis for his application.  It is said that a letter dated 3 June, especially paragraphs 9, 10 and 11, did set out the basis of the application.

19.	In our judgment, the Tribunal sufficiently dealt with the Claimant’s application.  It was a truly hopeless one.  The application was for the whole of the costs of preparing for the liability hearing in a substantial sum of money, some £16,000, covering a period up to March 2011.  The case had, however, been lost in circumstances where the Claimant herself was open to criticism, as the Tribunal had found.  The letter dated 3 June made wide ranging allegations which were truly hopeless.  The Tribunal had noted that there was a complaint of late disclosure of documents but also that no particular amount of costs was attributed to their late disclosure.  The Tribunal, to our mind, committed no error of law and gave sufficient reasons for its judgment.

Fresh evidence
20.	The third complaint relates to the Claimant’s desire to adduce fresh evidence.  In passing, in giving reasons for the costs application the Tribunal mentioned that the application to adduce fresh evidence had been refused by the Employment Judge at the preliminary stage: see paragraph 19 of the Tribunal’s reasons. 

21.	We can deal with this ground briefly.  We now know, although it may not perhaps have been entirely clear at the hearing before Judge Serota QC, that there was a separate decision by the Employment Judge refusing the application for a review.  That had been the subject of a separate appeal which, as we have said, was out of time.  The refusal of the review dealt with the question of fresh evidence. 

22.	The Tribunal, in giving its judgment on the question of costs was not ruling on the Claimant’s application to adduce fresh evidence: it was simply recording that the matter had already been dealt with.

23.	This is an appeal against the costs judgment dated 27 September 2011, not against the earlier decision on review.  Ground 3 does not relate to the costs judgment; it is an attempt to re-open an earlier decision against which no appeal was brought in time.  It cannot succeed.

Application for permission to amend
24.	Today the Claimant makes an application to amend the grounds of appeal to include additional grounds.

25.	Put shortly the point is this.  Following the liability hearing a remedies hearing and a case management discussion had been fixed for 11 April.  Very shortly before the hearing on 11 April the Respondents put in their costs application.  The Tribunal dealt with that on 11 April by giving the directions which we have already describe in order to give the Claimant an opportunity to answer the application.

26.	It is argued by the amended grounds of appeal that this was the way in which the Tribunal dealt with the matter in some way gives rise to doubts about its impartiality.  Alternatively it is said that the correct legal procedure was not followed in dealing with the application for costs.  

27.	In our view the procedure followed on 11 April casts no doubt upon the impartiality of the Employment Tribunal.  It made sense, the costs application having been made and the parties being present, to give directions for its determination.  Nor do we see any lack of fairness in the way in which the matter was dealt with.  A full opportunity was afforded to the Claimant to make representations in answer to the costs application.  The order dated 11 April itself was sufficient compliance with sufficiently complied with rule 38(9) of the Employment Tribunal Rules of Procedure. 

28.	This application for leave to amend was made so late that as a matter of discretion we would not have entertained it: but we consider in any event that the application for permission to amend discloses no point of law with any reasonable prospect of success.  Accordingly the application for permission to amend is refused.

Conclusion
29.	It follows that the appeal will be allowed only to the limited extent that we have set out in this judgment, namely to require the Employment Tribunal to consider the question of means afresh in the light of paragraph 13 of the Claimant’s witness statement.