Mr J Da Silva v Getronics Services UK Ltd and Others: 2303160/2023

EMPLOYMENT TRIBUNALS

Case No 2303160/2023

Between

Mr J Da SilvaClaimant

1) Getronics Services UK Ltd, 2) Intelligence Resource Ltd, 3) Mr A Holmes and 4) Mr J PatelRespondent

Before

Employment Judge Tsamados

In person for claimant

Date 9 May 2025

REASONS

[2]Today’s hearing was converted by Regional Employment Judge (“REJ”) Khalil to a two hour open preliminary hearing to determine whether any of the claimant’s claims were continuing for reasons that will become apparent below. In addition, the respondent made an application for costs against the claimant. I considered the position regarding the claims and gave oral judgment. What follows is a more formalised version of what I said at the time. In particular I have set out the full chronology of background events partly for the sake of completeness and partly for the purposes of considering the costs application, which because of lack of time I reserved judgment on. Given that much hinges on an interpretation of the background events, I have set out the submissions first and then set out the background matters by way of my findings. Documents

[6]I was provided with the following documents by the respondents for today’s hearing: a bundle consisting of 264 pages; and a skeleton argument dealing with the position regarding the continuation of the claim, which also included a costs application. I will refer to the bundle as “B” followed by the relevant page number(s) where appropriate. Some of the documents I considered were on the Employment Tribunal file but not in this bundle. At the start of the hearing, the claimant expressed his concern that he had only just received the bundle from the respondent. Whilst the bundle was originally sent to the Tribunal by email on 7 April 2025, this was not copied to the claimant and on this being pointed out by the Tribunal, the respondent subsequently sent it to him. His position is that this is in breach of the case management orders that were made for this hearing. Having had the opportunity to consider the contents of the bundle, I could see that they were documents that the claimant would already have, given that they consisted of the pleadings in the claim and correspondence between the parties and between the parties and the Tribunal. I said to the claimant, so you have the bundle and should be familiar with the contents. I also suggested that he focused on the headline and not the footnote, meaning the substance of the case and not that the bundle was sent late. I then asked him if he wanted to adjourn to have time to read the skeleton argument or for Ms Duane to go through it. He was content to do the latter. Submissions Page 2 of 15

[13]Case No: 2303160/2023 Ms Duane then went through her skeleton argument paragraph by paragraph, amplifying certain matters orally. In essence, she submitted that the claimant had no viable claims in the Employment Tribunal and in the alternative that all of his claims had been settled by the COT3 agreement he latterly entered into with the first and second respondents. Ms Duane further submitted that the claimant has had three opportunities to clarify what his claims are and has not done so with any specificity and should not be afforded a further opportunity today. She went through the chronology of events in her skeleton. She asserted that the claimant has jumped on or monopolised the letter sent by EJ Heath (dated 1 April 2025 seeking to clarify what claims were settled and against which respondents) as a way of reopening the matter on the basis that the third and fourth respondents have not signed the COT3 agreement and he further argues that those claims are not waived by him. This she submits is a misconceived argument. Further, Ms Duane submitted that in as far as the claimant has attempted to shift his position (by arguing that he never withdrew his financial claims against the third and fourth respondents), this is resisted and in any event he has still not provided any specificity as to what Tribunal claims he has against them. Ms Burton indicated that she had nothing to add to Ms Duane’s submissions. The claimant responded, in essence, as follows. What EJ Atkins discussed at the preliminary hearing held on 17 January 2025 was suspended and was to be discussed today. The COT3 only refers to the first and second respondents and not the third and fourth. EJ Atkins did not dismiss the financial claims against them. I asked the claimant what claims he thought he had against the third and fourth respondents but he did not give a coherent response. I asked him again and he did not answer. I asked him again and he said the claims were not struck out as they were supposed to be determined today. I asked him, given what the respondent has said about the COT3 ending claims against all four respondents, why does he say the claims against the third and fourth respondent continue? In what was a rather circular discussion, the claimant in essence appeared to be saying that he only responded to EJ Heath’s letter (asking him to clarify what claims had been settled by the COT3 and against whom) and he then thought the claim was withdrawn (in an email from the Tribunal) until he saw the email from REJ Khalil (that the hearing would be for two hours to determine whether any claims continued or not) and that was the only reason he was here today.

Background facts

[14]The background facts to this matter are not contentious. I was provided with much of the correspondence between the parties and the parties and the Tribunal within the bundle of documents, although this did not contain all of the correspondence, which I found within the Employment Tribunal’s case file. Page 3 of 15

[21]Case No: 2303160/2023 What is in dispute is the interpretation of two matters: the extent to which the claimant withdrew his claims against the third and fourth respondents and the extent to which the COT3 agreement subsequently reached between the claimant and the first and second respondents settled the claims to include those against the third and fourth respondents. By a claim form presented to the Employment Tribunal on 5 July 2023 following a period of ACAS early conciliation between 25 April and 6 June 2023, the claimant brought claims against the four respondents in respect of unfair dismissal, breach of contract for wrongful dismissal and unauthorised deductions from wages in respect of holiday pay and arrears of wages. His position is that he was employed as an IT Field Engineer from 25 August 2017 until 27 January 2023. Whilst his claim form attaches lengthy particulars of claim, these lack specificity. In a response presented on 17 August 2023, on behalf of the first, third and fourth respondents, it was denied that the Tribunal had jurisdiction to hear the claims on the basis that the claimant was a contractor engaged by the second respondent (a recruitment company and employment business) to provide services to the first respondent (an IT managed services and digital transformation company). The third and fourth respondents are managers employed by the first respondent. The respondents further denied owing the claimant any of the monetary amounts claimed. Although this breaks the chronology of events, for the sake of completeness, on 9 February 2024, the claim was re-sent to the second respondent by the Tribunal to its registered office on the basis that service at the address provided by the claimant was unlikely to come to its attention. The second respondent was given until 8 March 2023 in which to serve a response. Then on 8 March 2023, the second respondent presented a response to the Tribunal in which it denied employing the claimant and stated that he was engaged as an independent professional contractor via his own limited company. It further denied the monetary claims brought by the claimant. By letter dated 5 October 2023, the Tribunal wrote to the claimant cc the respondents on the instruction of Employment Judge (“EJ”) Dyal requiring him to provide further information of his claims which were unclear from his claim form (B50). By email dated 9 November 2023, the claimant responded to the questions he was required to answer by EJ Dyal (B53-62). In an email dated 1 December 2023, the solicitors for the first, third and fourth respondents reiterated their defence as to lack of jurisdiction and averred that the claimant had still not properly particularised his claim (B63-64). By letter dated 24 January 2024, the Tribunal wrote to the parties on the instruction of EJ Burge notifying them that the claim would be listed for a one day preliminary hearing at which to determine the following questions: was the claimant an employee of any of the respondents; was the claimant a worker of any of the respondents; and any necessary case management. In addition, the parties were ordered on various dates to disclose documents Page 4 of 15

[28]Case No: 2303160/2023 relevant to these issues, the first respondent to produce a bundle of documents, witness statements to be exchanged and written submissions submitted (B65-67). By letter dated 23 April 2024, the Tribunal wrote to the claimant cc respondents on the instruction of EJ Evans stating that the parties would receive notice of a 3 hour preliminary hearing which would discuss the claim and also provided guidance to the claimant as to matters he needed to be in a position to deal with at that hearing as to his employment status and as to his claims of “bullying, intimidation, threatening behaviour, retaliation and/or victimisation” (B80-81). By letter dated 30 April 2024, notice of the dates set for the final hearing was sent to the parties – for four days commencing 7 October 2025 along with suggested case management orders (B84-85). Also on 30 April, notice of a case management preliminary hearing was sent, listing that hearing for 17 January 2025, with a time estimate of three hours (B82-83). The case management preliminary hearing took place on 17 January 2025 and was conducted by EJ Atkins. The record of the hearing is at B86-93. At that hearing, Counsel on behalf of the first, third and fourth respondents indicated that they wished to make an application for the claim to be struck out. EJ Atkins pointed out to the claimant that he could only bring his claims of unfair dismissal and breach of his employment contract against his employer and the claimant indicated that either the first or the second respondent employed him. EJ Atkins stated in that case it would be appropriate to dismiss those claims against the third and fourth respondents. The claimant agreed and the EJ Atkins stated that “by a judgment issued alongside this order, I do so” (B87-88). I could not find this Judgment on the case file and having made enquiries determined that whilst EJ Atkins had drafted it on 17 January 2025, unfortunately, it had not been sent to the parties. On viewing that Judgment, it records that by consent the claims of unfair dismissal and breach of contract against the third and fourth respondents are dismissed. At the hearing EJ Atkins formed the view that it was still not possible to determine the details of the claims brought by the claimant and so it was impossible for the respondents to respond to them. He further decided that there was insufficient time in which to do so and to set further case management orders in time for the final hearing, and so he vacated those dates. EJ Atkins broadly set out the claims brought as he understood them and in particular gave the claimant guidance as to the meaning of victimisation under the Equality Act 2010 (“EQA”). EJ Atkins listed the public preliminary hearing for one day on 11 April 2025 to deal with: whether the claimant was employed and if so by whom; in the alternative, was he a worker and if so who did he work for; and any further case management as appropriate. He also set a series of case management orders for the claimant to provide further details of his victimisation claim, Page 5 of 15

[29]Case No: 2303160/2023 disclosure of documents, witness evidence if any and preparation of a bundle, on various dates. On 14 February 2025, the claimant provided further information of his victimisation claim (at B94-99). However, on considering this I can see that it does not identify a protected act falling within the meaning of section 27 EQA.

[30]On 27 and 28 March 2025 the claimant entered into an ACAS agreement with the first and second respondents (at B100-110). COT3

[36]On 27 March 2025, the claimant sent an email to the Tribunal confirming that he had reached an agreement regarding settlement of his claim against the first and second respondent and stated that he wished to withdraw those claims with immediate effect and that he understood that the proceedings covered by the settlement would be dismissed in accordance with rule 51 of the Employment Tribunal Procedure Rules 2024. By letter dated 1 April 2025, the Tribunal wrote to the claimant on the instruction of EJ Heath asking the claimant to confirm by 3 April 2025 whether any of his claims against the respondent were continuing and if so to identify which claims proceeded against which respondent (B111-112). Obviously, I did not send out this letter, but it would appear to me that the EJ was seeking clarification, given that there were originally four respondents to the claim and it was unclear whether all of the claims had been settled. It occurred to me after giving this judgment that perhaps this also arose from the absence of the withdrawal judgment from the Employment Tribunal’s file. By email dated 3 April 2025, the claimant wrote in response, that on 17 January 2025, EJ Atkins only dismissed the claims of unfair dismissal and breach of contract against the third and fourth respondents and that the financial claims remained outstanding. He further stated that the COT3 agreement only resolved the claims against the first and second respondents (B128). By a further email dated 3 April 2025, the claimant wrote to the Tribunal in effect repeating the above and he asked for confirmation that the hearing set for 11 April 2025 would deal with case management only of the financial claims against the first and second respondents (at B132). By an email dated 3 April 2025, the first, third and fourth respondents wrote to the Tribunal refuting the claimant’s assertions (at B141). By an email dated 4 April 2025, the claimant wrote to the Tribunal reiterating his position in more detail and refuting the respondents’ assertions. In conclusion, he demanded immediate written confirmation that the hearing would only proceed to deal with case management of his claims against the third and fourth respondents and that the COT3 agreement does not apply to claims against non-signatories (ie the third and fourth respondents). This is at B161-162. Page 6 of 15

[42]Case No: 2303160/2023 By email dated 4 April 2025, the solicitors for the first, third and fourth respondents wrote to the Tribunal in response to the claimant’s further email stating that all claims had been settled and the claimant cannot continue with his claim and the Tribunal has no jurisdiction to deal with it. The email then continued by setting out the chronology of events relied upon with regard to the withdrawal of claims at the hearing on 17 January 2025 and the COT agreement wording and extent. The email concluded that they required the Tribunal to confirm that the claims have been dismissed and to issue judgment accordingly. This email is at B203. By email dated 7 April 2025, the solicitors for the first, third and fourth respondents wrote to the claimant again setting out its position regarding his inability to proceed with is claims against the third and fourth respondents. The email also contained a costs warning that in the event he continued with those claims, the respondents reserved the right to seek costs against him. The email set out the provisions of rule 74 of the Employment Tribunal Procedure Rules 2024 dealing with the Tribunal’s powers to award costs. The email also warned the claimant that his conduct was in breach of the COT3 agreement in which he agreed to indemnify the first respondent against all losses suffered as a result of a brach. The email suggested that the claimant seek urgent legal advice as to the contents of the letter. This email is at B246- 247. By email dated 7 April 2025, the claimant wrote to the Tribunal accusing the respondents of misrepresenting the position regarding withdrawal of his claims against the third and fourth respondents and again restated his position. In addition, he also refuted the assertion that he had breached the COT3 and threatened to take action against the respondents for breach and accused the first respondent and its solicitors of harassment and intimidation. Again, the claimant sought urgent confirmation that his financial claims against the third and fourth respondents were not dismissed and are unaffected by the COT3 agreement or express directions that he could pursue those claims in the County Court without breaching the COT3 agreement. He suggested that to avoid wasting costs, the hearing on 11 April be converted to a 10-20 minute telephone hearing to formally record the COT3 settlement, to dismiss only the settled employment-status claims and to issue directions for the remaining claims. This email is at B248-249. By email dated 8 April 2025, at B252, the solicitors for the first, third and fourth respondents wrote to the Tribunal stating that they did not propose to enter into protracted correspondence but they do not agree with the claimant’s position and had told him in an email of 7 April which was inadvertently not copied to the Employment Tribunal. A copy of that email was attached. By email dated 9 April 2025, the Tribunal wrote to the parties on the instruction of a Legal Officer confirming that because the claim has been withdrawn there will be no further action on the matter. This email is not in the bundle. By email dated 10 April 2025, the Tribunal wrote to the parties on the instruction of REJ Khalil having seen the recent correspondence directing that the hearing remain listed for 11 April 2025 but with a time estimate of 2 Page 7 of 15 Case No: 2303160/2023 hours starting at 2 pm. The email further stated that the Employment Judge conducting the hearing will determine whether any of the claims are still outstanding. This email is not in the bundle.

Conclusions

[48]It would appear that on the back of this letter from EJ Heath, the claimant sought to proceed with his claims against the third and fourth respondents having entered into a COT3 agreement although it was at first unclear what these claims were and whether they were ones that the Tribunal actually has jurisdiction to deal with. Indeed, it became apparent that the claims he wishes to proceed with are against the two individuals were in respect of unpaid wages, unlawful deductions and travel/phone expenses. Given that neither of these respondents were his employer, they are not claims that the Employment tribunal has any jurisdiction to deal with. If they are matters that are actionable at all, the claimant would need to bring them in either County or High Court (but I would caution him to take legal advice before doing so). It appears to me that today’s hearing was initially vacated on the basis of the claimant’s email of 27 March 2025 but subsequently reinstated given the protracted correspondence that ensued from EJ Heath’s letter but was then converted to a two-hour public preliminary hearing to determine whether the matter could proceed or not and if it could to make arrangements for that. Having had the opportunity since giving judgment to consider the file, it is clear that only the claims of unfair dismissal and breach of contract were withdrawn by the claimant. However, the stark reality is that the claimant then sought to pursue financial claims that could either only be brought against his employer or if they were actionable at all were not matters that the Employment Tribunal has the jurisdiction to deal with. Notwithstanding the above, it is clear on the face of the COT3 agreement, as I said in my oral judgment, that the claimant is precluded from proceeding with his claims against the third and fourth respondent in this Tribunal. Clause 4.2 of that agreement indicates that it is in full and final settlement of all claims not only against the first and second respondents but any “Associated Persons” (at B101). Clause 16.1 defines Associated Persons as “…any current or past employee of the First and/or Second Respondents...” (at B103). There is no dispute that the third and fourth respondents are employees of the first respondent. Indeed, there was documentary evidence in support of this at B254. On this basis the matter cannot proceed and for the avoidance of doubt I record that the claim against all four respondents is dismissed in its entirety. Costs application

[49]I then turned to the first, third and fourth respondents’ application for costs. This is set out at paragraphs 13 onwards of Ms Duane’s skeleton argument. Page 8 of 15

[52]Case No: 2303160/2023 I gave an overview of the Tribunal’s powers to award costs for the benefit of the claimant. Ms Duane then spoke to her skeleton argument. In essences, she is seeking costs under rule 74(2) of the Procedure Rules which gives the Tribunal the discretion to award costs if in either the bringing of proceedings or the way in which they have been conducted a party’s conduct is vexatious, abusive, disruptive or otherwise unreasonable. I was referred to the case of Barnsley MBC v Yerrakalva

[2012] IRLR 78

as to there not being a need to find a precise causal link between any relevant conduct and any specific costs claimed, at paragraph 14 of Ms Duane’s skeleton. I was also referred to the questions to consider as the Employment Appeal Tribunal provided guidance of in the case of Opalkova v Acquire Care Ltd EA-2020-000345-RN at paragraph 15 of the skeleton argument. Namely: a) whether, objectively, the claim had no reasonable prospect of success; b) at the stage that the claim had no reasonable prospect of success, did the relevant party know that was the case; and c) if the relevant party did not know that the claim had no reasonable prospect success, should they have known? Ms Duane made the following submissions:a.

d. It was clear from the hearing of 17 January 2025 and the record of that hearing that the Claimant’s claims against the third and fourth respondents were misconceived and he was directed to sources of legal advice; The first, third and fourth respondents have advised him on no less than eight occasions as to why his claims against respondents three and four are misconceived. However, he has chosen to continue with them; There is an indication in the bundle that the claimant needed to delay signing the COT3 to take legal advice (at B255-256). Assuming that he took advice he would clearly have been aware that the COT3 covered all of the claims against all of the respondents. If so, the claimant then chose to ignore that advice; The claimant’s email of 7 April 2025 (at B253) shows that he was unrelenting in his pursuit of the need for a hearing today, despite being told that his claim was misconceived and having been sent a costs warning that same day. Indeed, he made outlandish comments about the respondents’ conduct including reporting the solicitors to the Solicitors Regulation Authority. Further his final comments in that email as to requiring the Tribunal to issue directions as to future case management of the claim. It is inexcusable of the claimant to continue blindly with the proceedings. Whilst the claimant suggests that he was not responsible for the case continuing this is not credible. I was referred to paragraph 19 of the skeleton and the case of ET Marler Ltd v Robertson

[1974] ICR 72

; Page 9 of 15

e. Case No: 2303160/2023 Clause 13 of the COT3 agreement contains an indemnity provision (at B103). If the claimant pursues a claim against the respondents in breach of the agreement he is required to repay the settlement monies of £15,000 to the first respondent. This would also have been clearly explained to the claimant when he signed the agreement;

f. Giving the claimant has just received the sum of inconceivable that he does not have the means to pay; £15,000, it is

g. The Tribunal is invited to award either: £15,000 for breach of the COT3 agreement; and/or an award for costs as set out in the schedule of costs at B257-259.

[53]In response, the claimant made the following submissions:a.

c. He rejected all of Ms Duane’s submissions; The bundle was supposed to have been sent to him on 9 April on the basis that hearing today was to go ahead. The respondents sent it by post and email taking advantage. At this point, I intervened and told the claim to focus on the topline and not the issue with the bundle. I explained to him what he was being accused of and then allowed him to continue; He did not behave in the way alleged. He went through the various emails starting with his email of 27 March saying the claim was settled and he was withdrawing and ending with the email from REJ Khalil of 10 April stating that the claim remains listed. His point in essence was that he respond to EJ Heath’s email letter of 1 April seeking clarification of the claims and set out in a number of emails that the financial claims against the third and fourth respondents were not withdrawn and the COT3 did not cover them, he sought clarification of whether the hearing was continuing and the status of his claims, was then told the case was not continuing and then told it was.

[55]I explained to the claimant that if I was considering making a costs order, I could have regard to his ability to pay. In response, the claimant said he has spent the £15,000 on business expenses, rent arrears and school fees. He has been unemployed since 2023 and not able to afford to apply for a job and that is why he has been pursuing this claim. When he got the letter from the clerk, he thought the case was at an end and it was only when he looked at his email account at last night that he saw the email at B118 stating that the case was continuing. He had attempted to phone the Tribunal since he received the letter from the clerk to confirm whether there was no need for a hearing as he had requested in his email or a hearing of only 10-15 minutes, but got no answer. He could not email the Tribunal today because he had to prepare his children for an excursion and then prepare for the hearing. Ms Duane replied as follows. If the claimant had not wanted this hearing to go ahead and had been calling the Employment Tribunal as he says, he would have said this at the outset of the hearing. He did not because it did not happen. It is not credible that an IT consultant does not have work. It is Page 10 of 15

[56]Case No: 2303160/2023 also not credible that the claimant doe does not have the £15,000 when he only received it 24 hours ago (the claimant clarified that he received payment on 5 April 2025). At this point, given the lateness of the hours, I indicated that I would reserve judgment. Essential law

[57]Rules 74, 76 and 82 of the Employment Tribunal Procedure Rules 2024: “74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,

(b) any claim, response or reply had no reasonable prospect of success, or

(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned. (4) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal must order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing, and (b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment.” “76.—(1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998(33), or by the Tribunal applying the same principles; (ii) in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019(34), or by the Tribunal applying the same principles; (c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing;

(d) an amount agreed between the paying party and the receiving party in respect of the receiving party’s costs. (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative must not exceed the rate under rule 77(2) (the amount of a preparation time order). (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000.” “82. In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.” Page 11 of 15 Case No: 2303160/2023 Conclusions

[66]The powers relating to costs are set out in Part 13 of the Employment Tribunal Procedure Rules 2024. Under rule 74, a Tribunal may award costs in favour of a legally represented party (“the receiving party”) where, amongst other things, in bringing or in conducting the proceedings the other party (“the paying party”) has acted vexatiously, abusively, disruptively or otherwise unreasonably, or any claim, response or reply had no reasonable prospect of success. In this matter the legally represented parties are the first, third and fourth respondents and the paying party is the claimant. Under rule 76 the Tribunal can award costs of up to £20,000 or refer the matter to the County Court for assessment. Costs include the legal fees, disbursements and expenses incurred on or on behalf of the receiving party while legally represented. Under rule 82, the Tribunal may have regard to the paying party’s ability to pay when considering whether to make a costs order and if so in determining in what amount. “Unreasonable” has its ordinary, everyday, objective, meaning (Dyer v SS for Employment UKEAT 183/73). It can include pursuing an unmeritorious claim and one can have regard to what the paying party knew or ought to have known (Keskar v Governors of All Saints CofE School

[1991] ICR 493

). “No reasonable prospects of success”. This is effectively the same as the word “misconceived” under rule 2(2) of the 2004 rules of procedure which included cases where there was no reasonable prospect of success. The issue is not whether the party thought they were in the right but is whether they had reasonable grounds for thinking they were in the right (Scott v Inland Revenue Commissions

[2004] ICR 1410

CA; Hamilton-Jones v Black

UKEAT/0047/04

). However, the focus in the 2024 rules is only on the claim or response and does not relate to the conduct of the proceedings. The focus under rule 74(2)(b) is only on the claim or response when brought. I heard no evidence or submissions as to whether the claim had no reasonable prospects of success when it was brought. To judge this would need knowledge of what information was known or reasonably available to the claimant at the start of his claim so as to determine how, at that earlier point, the prospects of success in a final hearing that was yet to take place would have looked to the claimant. For this reason, I have focused on conduct under rule 74(2)(a) which relates to behaving unreasonably in the bringing of the proceedings or part of it or the way that the proceedings, or part of it have been conducted. I have to remember that costs in the Employment Tribunal are the exception rather than the rule. But this does not mean that they cannot be awarded. In addition, I bear in mind that the claimant is a litigant in person and the Respondent has had the benefit of representation throughout. Whilst this is Page 12 of 15

[71]Case No: 2303160/2023 a factor in determining whether or not to make a costs order it is not in itself determinative. I do not accept the claimant’s interpretation as to why this hearing went ahead. He suggests that he was somehow an innocent bystander and thought it was not going ahead and then at the last moment found out that it was. This is not the case. This hearing went ahead because the claimant insisted that his financial claims against the third and fourth respondents had not been withdrawn (which is of course true but presupposes that he had actionable claims against them) and that the COT3 agreement did not settle those claims. He persisted in this belief throughout a series of emails. The hearing was initially cancelled in response to his withdrawal email of 27 March 2025 but resurrected by his increasing insistence that the matter had to continue, to deal with his, in effect, demands, for declarations as to his claims against the third and fourth respondents and as to the status of the COT3, and for further case management of those claims. I do appreciate that on the other hand the respondent was asking for the claims to be dismissed without the need to attend a hearing. I also acknowledge that it is perhaps unfortunate that the correspondence from the parties was not referred for a judicial decision sooner. However, this reflects the volume of work that the Employment Tribunals face on a day to day basis. Nevertheless, the simple explanation as to why we are here today and have already spent one and a half hours dealing with that matter is because the claimant insisted he had valid claims against the third and fourth respondents and that the COT3 agreement did not extinguish them. Whilst the claimant is right that only the unfair dismissal and breach of contract claims were withdrawn against the third and fourth respondents, he was told clearly that he could not proceed with his claims against them because they were not his employer. He was even given the opportunity to identify a viable victimisation claim but failed to do so. But he has only indicated that he has financial claims against the third and fourth respondents and these are clearly not ones that the Tribunal can deal with. The claimant was told to get legal advice by both EJ Judge Atkins and the first, third and fourth respondents’ solicitors and put on notice of costs if he continued with what they told him was a misconceived claim. He signed a COT3 agreement which clearly indicates that claims against the third and fourth respondents had been settled. He indicated at the time of signing that he wished to take legal advice. Assuming he did so then he must have been aware of the position. I do appreciate that the claimant was not represented during these proceedings but even on a commonsense reading of the COT3 agreement, the fact that his claims against the third and fourth respondent, as employees of the first respondent, had been settled, must or should reasonably have been apparent to him. Whilst his initial response reopening the matter may have been as a result of the letter from EJ Heath, he has doggedly pursued it in the face of the above and when the respondent clearly told him the claims were misconceived and why, and urged him to take Page 13 of 15

[74]Case No: 2303160/2023 independent legal advice, and he insisted that a hearing of some sort be held to further pursue those claims. I therefore conclude that objectively the claimant’s claims against the third and fourth respondents had no reasonable prospect of succuss. There were no viable claims to be brought in the Employment Tribunal and the wording of the COT3 agreement in any event extinguished any possible claims. Further, whilst the claimant must have realised at the hearing on 17 January 2025 and the subsequent receipt of the record of that hearing that he had no viable claims against those respondents (and was even invited to identify a viable victimisation claim but did not do so) and this message was reiterated by the respondents’ solicitors. In addition, he must have realised this on reading and signing, and by all accounts taking legal advice. Moreover, even if he did not know, he should have known. All the indicators were pointing in the same direction – that the claims against the third and fourth respondents had no reasonable prospects of success. I therefore conclude that it is appropriate to make a costs order against the claimant because it was unreasonable of him to proceed with those claims beyond the signing of the COT3 agreement and the way in which the proceedings have been conducted from that point onwards. With regard to the application to award repayment of the settlement monies of £15,000 under the indemnity clause in the COT3 agreement, I do not believe that I have the power to do this. A COT3 agreement can only be enforced by the County or High Court. In effect, Ms Duane is inviting me to enforce the COT3 agreement or more specifically its breach. The Employment Tribunal has no powers of enforcement even of its own Judgments.

[75]Turning then to the amount of costs to award. The schedule of costs is at

[76]B262-264. It is for the period of 1 April 2025 to 11 April 2025 and encompasses costs associated with preparation for this hearing and representation today. The hourly rates charged appear reasonable for a firm of inner city solicitors, the Solicitors' Guideline Hourly Rates in effect from 1 January 2025 and my own knowledge of what I was charged out at when I was last in private practice. The work undertaken also appears reasonable and necessary. Counsel’s fee for today again appears reasonable taking into account my own knowledge of such fees when I was last in practice as a solicitor. The total amount of solicitors’ and counsel’s costs is £6,921.50 exclusive of VAT (which is not recoverable in a costs order in any event). I have to say that I did not find the claimant’s account of his ability to pay to be compelling. Whilst I accept that having received £15,000 on 5 April 2025, he would of course be looking to repay debts to those that have assisted him, for rent arrears and for school fees, it does seem less probable that he would have spent it all in 6 days. He has given no detail of this expenditure beyond headings. Moreover, whilst saying that he is unemployed and has been since 2023, he has given no account of what his financial circumstances are. I also take into account that is does seem unlikely that an IT Field Engineer could not find any employment either as an employee, worker or self-employed for Page 14 of 15

[77]Case No: 2303160/2023 over 2 years. The claimant also did not volunteer whether or not he was claiming social security benefits or had some other means of support. I therefore conclude that the claimant should pay the full costs claimed by the first, third and fourth respondents but would urge the parties to consider entering into a arrangement whereby the claimant can make payment by instalments if full payment is not possible. Employment Judge Tsamados 9 May 2025 Public access to Employment Tribunal Judgments All judgments and written reasons for the judgments are published online shortly after a copy has been sent to the Claimant(s) and Respondent(s) in a case. They can be found at: www.gov.uk/employment-tribunal-decisions. Page 15 of 15 Case No: 2303160/2023 Page 1 of 8 EMPLOYMENT TRIBUNALS Claimant: Mr J Da Silva Respondent: 1) Getronics Services UK Ltd, 2) Intelligence Resource Ltd, 3) Mr A Holmes and 4) Mr J Patel

Background

[1]In an email dated 26 May 2025, the Claimant wrote to the Employment Tribunal requesting a reconsideration of my Partially Reserved Judgment and Reasons sent to the parties on 12 May 2025. That email attached three exhibits.

[2]In an email dated 28 May 2025, the first, third and fourth Respondents’ solicitors wrote inviting the Employment Tribunal to refuse the Claimant’s application on the basis that it had no reasonable prospects of success. They were not obliged to do this, given that initially this matter is considered by the Employment Judge to determine whether the application has reasonable prospect of success.

[3]The Claimant sent a further email on 27 June 2025 attaching additional supporting documents.

[4]My Judgment determined two matters. Firstly, that the Tribunal had no jurisdiction to hear the claims against the third and fourth Respondents. For the avoidance of doubt I also recorded that the claims against all four Respondents were dismissed in their entirety. I gave Judgment and Reasons orally at the hearing. Secondly, my Judgment also dealt with the first, third Case No: 2303160/2023 Page 2 of 8 and fourth Respondents’ costs application and awarded costs against the Claimant in the sum of £6,921.50. I heard submissions from each party, including evidence from the Claimant as to his ability to pay a costs order if I decided to make one. However, due to lack of time I reserved my Judgment as to costs. This is why the document is headed Partially Reserved Judgment. For expediency sake I set out the reasons for both matters within that document. The Tribunal Rules on Reconsideration

[5]Under the Employment Tribunal Rules of Procedure 2024: “69. Except where it is made in the course of a hearing, an application for reconsideration must made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or

(b) the date that the written reasons were sent, if these were sent separately, 70.—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.”

[6]The Employment Appeal Tribunal has given guidance as to the nature of a request for reconsideration: a) Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted; b) There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule; c) It is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered; d) Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application. Case No: 2303160/2023 Page 3 of 8 Consideration of the application and conclusions

[7]I accept that the Claimant has made this application within the time limit set out in Rule 69.

[8]Under that Rule I have the power to reconsider my Judgment where it is necessary in the interests of justice to do so. Under Rule 70(2) if I consider that there are no reasonable prospects of my Judgement being varied or revoked then the application must be refused without going any further.

[9]I have carefully considered both emails from the Claimant and the attached documents. I have gone through these by adopting the Claimant’s headings and paragraph numbering and set out my response by application of the above principles contained within the Rules.

[10]Dealing first with the Claimant’s email of 26 May 2025 from paragraph 2 onwards.

[11]The Claimant raises the following matters under the heading “A. Procedural Unfairness and Bias”: Paragraph 1a. At paragraph 1 the Claimant alleges procedural unfairness and bias with regard to actions taken by my clerk for that hearing in the sending of emails. The Claimant in effect raise this matter at the hearing and I addressed it at paragraphs 4-6 of my Judgment. I would add that there is nothing untoward arising from my clerk using his direct work email address. Paragraph 2

b. At paragraph 2 under the heading “Late Bundle Admission”, the Claimant alleges that the bundle was submitted after the date for compliance within the Case Management Orders set at a previous case management hearing and that I admitted them without justification thereby prejudicing his case.

c. I would point out that the hearing started at 2.10 pm and was listed for two hours. The hearing ended at 4.50 pm. The bundle was only received at approximately 1.30 pm.

d. The Claimant did express his concern that the bundle had been provided effectively at the last moment and beyond the date for compliance. However, I addressed this matter at paragraphs 4-6 of my Judgment. He was in effect fixating on this breach and I told him to focus on the substance of his case and having pointed out that the bundle consisted of documents that he already had and would be familiar with. I did not believe that the late provision of the bundle gave rise to any impediment to a fair hearing proceeding. Indeed, I thought that the claimant was attempting to capitalise on this inappropriately. Case No: 2303160/2023 Page 4 of 8

e. The Claimant further raised the issue of the late admission of the bundle at paragraph 53 b. of my Judgment, in the context of his submissions against the costs application. He suggested that the Respondents had sent the bundle by post and email taking advantage. I again told to him to focus on the top line, as I put it, ie the costs application, and not the issue with the bundle (which we had already dealt with).

f. In addition, although the Claimant does not raise this here, the solicitors for the first, third and fourth respondents also sent a skeleton argument shortly before the hearing, running to 10 pages. I appreciated that the Claimant required the opportunity to read this. I offered him the choice of adjourning for him to read it or for Counsel for the first third and fourth respondents to read it aloud when making her submissions. He was content to do the latter. Whilst this added to the length of the hearing I saw this as a fair and proportionate way to proceed. Paragraph 3

g. The Claimant alleges that there was Tribunal staff interference in as much as my clerk appeared in the virtual hearing (“CVP”) without explanation of his role creating apparent bias.

h. The Claimant did not raise any concern about this at the time. I cannot see anything untoward arising from my clerks appearance in the CVP room. Indeed, it must have been the case that my clerk introduced himself prior to the hearing because he would have been present in the CVP room to check that the parties were present and to deal with any connectivity issues, prior to informing me that we were ready to start.

[12]At section B, the Claimant sets out what he defines as an “Error of Law – COT3 Misapplication”. He submits that the COT3 agreement only binds the first and second respondents (the signatories) and that I unlawfully extended it to non-signatory employees (third and fourth respondents).

[13]The Claimant is simply raising the same points that he made at the hearing and clearly does not agree with my conclusions (specifically at paragraph 47 of my Judgment). He is expressing a view and has not put forward any basis on which this would amount to an error of law.

[14]At section C, the Claimant states “Fraudulent Costs Order”. That the costs order that I made is vexatious and unreasonable for a number of reasons: Paragraph 1a. the Claimant alleges that Counsel’s fees were inflated specifically stating that £2000 for a two hour virtual hearing exceeds the ET norms (£300-500/hr).

b. The Claimant did not raise this issue at the hearing. Using my experience and judgment as a solicitor, previously as an Employment Law specialist for many years, I formed the view that I had no reason to Case No: 2303160/2023 Page 5 of 8 believe this sum to be unreasonable. I do not know where the claimant has got the hourly figures which he states to be “ET norms” from. Paragraph 2 .

c. The Claimant alleges that I allowed costs in respect of what he refers to as Internal Overheads (Non-Recoverable). Specifically, he refers to £1375 for preparing the bundle and £180 for reviewing emails. He submits that these are internal administrative costs, not recoverable under ET rules and quotes the case of Yerrakalva v Barnsley MBC [2012].

d. This was not a matter that the Claimant raised at the hearing and I am not aware of anything within Yerrakalva v Barnsley which precludes the recovery of costs in respect of preparation of a bundle and reviewing emails. I assume that the Claimant in fact means Barnsley MBC v Yerarkalva

[2012] IRLR 78

in the Court of Appeal. However having looked at both the Judgment in Employment Appeal Tribunal and the Court of Appeal, I could not find any reference to this proposition either.

e. Costs are defined at Rule 2(1) of the Employment Tribunal Procedure Rules 2024 as follows: “… fees, charges, disbursements or expenses incurred by or on behalf of any party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing)…”

f. This definition includes costs in respect of matters such as preparation of a bundle and review of emails. Paragraph 3

g. The Claimant alleges that there is double charging. Again this is not a matter that he raised at the hearing. The Claimant has given one example. However, there was nothing within the Schedule of Costs to indicate double charging to me. It appears that the Claimant is misconstruing different elements of the work undertaken. Paragraph 4

h. The Claimant alleges that I have allowed costs that were incurred after the case had closed. He is pointing to a matter set out in my findings at paragraph 41 of my Judgment but is quoting it out of context. In his submissions recorded at paragraph 53 c. he raised this issue.

i. The email referred to at paragraph 41 states that as the claim had been withdrawn, there would be no further action on the matter. This was sent on the instruction of a Legal Officer. However, it was clear from the earlier correspondence that whilst the Claimant initially had notified the Tribunal that the claim had been settled via an ACAS COT3 agreement with the first and second respondents (at paragraph 30 of my Judgment), thereafter his correspondence indicated that he was still pursuing his claim (at paragraphs 31 to 42 of my Judgment). Case No: 2303160/2023 Page 6 of 8

j. This is reflected in my conclusions in respect of the jurisdictional matter within paragraphs 43 to 48 of my Judgment, in particular at paragraph 45. I relied on these findings and conclusions when considering the costs application. Indeed at paragraphs 67 to 69 I set out my conclusions in the context of the costs application, expressly rejecting the Claimant’s interpretation of events and the point he repeats within his reconsideration application without adding more. Paragraph 5

k. The Claimant alleges that I made no assessment of his ability to pay a costs order and ignored his Universal Credit status.

l. At paragraph 54 of my Judgment, I explained to the Claimant that if I was considering making a costs order, I could have regard to his ability to pay. That paragraph sets out the information that he gave during the hearing. He did not disclose that he was in receipt of Universal Credit. Counsel for the first, third and fourth respondents made submissions in response to his submission at paragraph 55.

m. As I said in my conclusions on costs at paragraph 76 of my Judgment, I did not find the Claimant’s account of his ability to pay to be compelling. In particular, beyond saying that he was unemployed and had been since 2023, he gave no account of what his financial circumstances were. His explanation as to where the £15,000 he had received by way of the COT3 settlement some six days prior to the hearing did not seem probable on the basis of the information provided and he gave no details of what he said he had spent that money on beyond a series of headings.

n. Whilst the Claimant has now said that he receives Universal Credit of £300 per month, he has not provided any supporting evidence and whilst perhaps it is not necessary for him to do so, I am not swayed in my conclusions in the Judgment, given the account he gave of his ability to pay at the hearing which I found to be uncompelling, given his failure to mention receipt of Universal Credit at the hearing when he had that opportunity to do so and his belated disclosure of this purely by reference to an amount.

o. Whilst I appreciate that the amount of the costs order is significant it was in the face of his uncompelling and scant information as to his ability to pay that I awarded full costs although at paragraph 77 of my Judgment I did urge the parties to consider entering into an instalment agreement if full payment was not possible.

[15]On a general level, I would add that I am entitled to take a broad brush approach to costs. However, at paragraph 75 of my Judgment I gave clear consideration to the Schedule of Costs based on the Solicitors’ Guideline Hourly Rates in effect from 1 January 2025 and my own knowledge of what I was charged out when I was last in private practice. Similarly, in respect of Counsel’s fees. Case No: 2303160/2023 Page 7 of 8

[16]At paragraph 4 the Claimant requests that I set aside the Judgment against the third and fourth Respondents. To be clear, the Claimant had in fact already withdrawn his claims against the first and second respondents on 27 March 2025, as sent out in my findings at paragraphs 30 and 31 of the Judgment. My Judgment determined that under the terms of the COT3 agreement he was precluded from proceeding with his claims against the third and fourth respondents (at paragraphs 47 and 49 of the Judgment. Indeed, for the avoidance of doubt, I dismissed the claims against all four respondents.

[17]In addition, the Claimant also makes the following requests, which I deal with for the sake of completeness:a. That I strike out the costs order being vexatious. This appears based on a misunderstanding of rule 74 of the Employment Tribunal Procedure Rules 2024 and the powers available.

b. That I disclose all communications between Tribunal Staff and the Respondents. This again misunderstands the nature of an application for reconsideration. The Claimant will have been sent all communications between the Employment Tribunal parties, save initially for those he has identified relating to the bundle. This is not something that falls within an application for reconsideration.

c. That I provide written guidance to take the third and fourth Respondents to a County Court. The Employment Tribunal’s function is not to provide legal advice and again this perhaps misunderstands the nature of this application. I would direct the Claimant to take his own advice and would suggest looking on the gov.uk or Citizens Advice websites for guidance.

[18]I have considered the points made in the Claimant’s email of 27 June 2025 and looked at the supporting documents provided. I simply do not accept the contentions that the Claimant makes in respect of each of the emails that he refers to and in effect have addressed these matters within my findings and conclusions in my Judgment.

[19]In conclusion then, having gone through all of the points raised, I find that the Claimant’s application for a reconsideration of my Judgment has no reasonable prospect of success. It is not in the interests of justice to revoke or vary it. Employment Judge Tsamados 10 July 2025 Case No: 2303160/2023 Page 8 of 8 Public access to Employment Tribunal Judgments All judgments and written reasons for the judgments are published online shortly after a copy has been sent to the Claimant(s) and Respondent(s) in a case. They can be found at: www.gov.uk/employment-tribunal-decisions. Case No: 2303160/2023 Page 1 of 3 EMPLOYMENT TRIBUNALS Claimant: Mr J Da Silva Respondent: 1) Getronics Services UK Ltd, 2) Intelligence Resource Ltd, 3) Mr A Holmes and 4) Mr J Patel

[1]I do not intend to set out the background to this matter again but would refer to my Judgment sent to the parties on 11 July 2025 for that detail. The Tribunal Rules on Reconsideration

[2]I do not intend to set out the law relating to reconsiderations again but would refer to my Judgment sent to the parties on 11 July 2025 for that detail. Consideration of the application and conclusions

[3]The Claimant is in effect seeking a further reconsideration of my original Judgment and the rejection of his previous application for a reconsideration. In as far as it amounts to a duplication of matters he has already raised and have been rejected, I have nevertheless reconsidered those matters.

[4]He made his application by email dated 28 July 2025 and I accept that this is within the time limit set out in Rule 69 of the Employment Tribunal Procedural Rules 2024. Case No: 2303160/2023 Page 2 of 3

[5]The Claimant sent a further email dated 18 August 2025 raising further matters. Whilst this was not sent in time, I have nevertheless considered it.

[6]Under the Procedural Rules I have the power to reconsider my Judgment where it is necessary in the interests of justice to do so. Under Rule 70(2) if I consider that there are no reasonable prospects of my Judgement being varied or revoked then the application must be refused without going any further.

[7]I have carefully considered both emails from the Claimant and the attached documents. I have gone through these by adopting the Claimant’s paragraph numbering and set out my response by application of the principles contained within the Rules and case law.

[8]Dealing first with the Claimant’s email of 28 July 2025: Paragraph 1a. Whilst the Respondent was required to prepare the bundle this does not mean that it could not form part of their application for costs and not be awarded as part of the costs order;

b. The assessment of costs was essentially a summary exercise. I am entitled to rely on my own experience. The Law Society guidelines quoted are in respect of solicitors’ hourly rates not counsel.

c. I have looked again at the case reports of Yerrakalva in both the Employment Appeal Tribunal and the Court of Appeal (Yerrakalva v Barnsley MBC & Anor

UKEAT/0231/10

and Barnsley MBC v Yerrakalva

[2011] EWCA Civ 1255

). There is no paragraph 34 in the Employment Appeal Tribunal report. Paragraph 34 of the Court of Appeal report does not contain the words that the Claimant relies upon. For the sake of completeness, a word search of both reports does not reveal any of the key words that the Claimant quotes as being in paragraph 34. I cannot find the principle that the Claimant is relying on in either report. Paragraph 2 a. This is a matter that the Claimant already raised in his first reconsideration application and I rejected it. He raises nothing further giving rise to reasonable prospects of success. b. This is a matter that the Claimant already raised in his first application and I rejected it. He raises nothing further giving rise to reasonable prospects of success. c. I have not seen the transcript referred to. My note of this part of the hearing is that I explained to the Claimant that the bundle simply contained documents that had already been sent by or to the parties. So it contained nothing new. The submissions document was new and so I asked him if he wanted time to go through it or did he want counsel to read it out as she went along. He indicated the latter.

[9]Turning then to the Claimant’s email of 18 August 2025: Case No: 2303160/2023 Page 3 of 3 Paragraph 19.1 As I have explained, the assessment of costs was on a summary basis. The Claimant has in effect already raised this point and I rejected it. He raises nothing further giving rise to reasonable prospects of success. Paragraph 2

9.2 The Claimant has not provided any evidence to support this contention and again I would make the point that this was a summary assessment of costs on the day. Paragraph 3

9.3 VAT was not included in the costs award. As a matter of caselaw it is not recoverable from the paying party, ie the Claimant. I cannot see anything untoward, as the Claimant asserts.

[10]In conclusion then, having gone through all of the points raised, I find that the Claimant’s application for a reconsideration of my judgment in respect of the above matters has no reasonable prospect of success. It is not in the interests of justice to revoke or vary it.

[11]Those elements that I provisionally take the view should be granted are dealt with in a separate letter to the parties.