Jain v Toshiba International (Europe) Ltd [1993] UKEAT 659_92_2604

EAT

Jain v Toshiba International (Europe) Ltd

[1993] UKEAT 659_92_2604 · 1993-04-26

JUDGE J PEPPITT QC:

This is the preliminary hearing of an appeal from a decision of the London (North) Industrial Tribunal which after a hearing extending over 5 days in March 1992, unanimously held that the Applicant's complaints of racial discrimination and victimisation under the Race Relations Act 1976 were not made out. At the conclusion of the hearing the Tribunal ordered the Applicant to pay the Respondent the sum of £4,000 in costs.

The Applicant, Mr Jain, has taken the trouble to set out in written submissions the points which he invites us to consider when entertaining his appeal. I should say on behalf of all of us that we found those written submissions of considerable assistance. They have enabled us to read in advance the points which Mr Jain wishes us to bear in mind and they have saved us a great deal of time when embarking upon this hearing. What we have done is to go through, so far as we can, the various headings of Mr Jain's submissions and invite him to expand and give illustrations where he thinks proper, an invitation which in a number of respects he has felt able to accept. In those submissions Mr Jain sub-divides his appeal into five main heads. The first relates to the order for costs made against him; the second to his complaints of victimisation; the third his complaint of racial discrimination; the fourth a short head dealing with constructive dismissal and a fifth containing allegations of bias by the Tribunal which entertained his case.

So far as the first head is concerned, that of costs, Mr Jain raises a number of points including a point that the Order for Costs was made without any enquiry into his financial means. We, in fact, asked Mr Jain about his finances and he told us that upon his leaving the Respondents' employment he had obtained another post for which he had received a salary of, I think, £25,000 a year but without a car. But be that as it may we have given anxious consideration to the Order for Costs which was made against him, and in particular we have considered the case of Wiggin Alloys Ltd v. Jenkins

[1981] IRLR 275

, a decision of the Employment Appeal Tribunal whose decision was given by Mr Justice Browne-Wilkinson, as he then was. In the course of his judgment Mr Justice Browne-Wilkinson said this:

"Mr Glover has urged that the Tribunal should not have refused to make an order [that was an Order for Costs] simply on the grounds that the applicant was not in a position to pay the costs. He says that if no order is made, then there is no discouragement to the bringing of frivolous and vexatious proceedings, which was obviously the intention behind the regulation. We do not feel able to accept that submission although we, too, feel sympathy for the employers. The matter was within the discretion of the Industrial Tribunal. The regulation says that the Tribunal may make an order. In our view, the inability of the applicant to meet any order for costs is a matter which is properly to be taken into consideration and, therefore, we cannot see that they have erred in any way in law in exercising their discretion. We should emphasise that it is no consequence of our decision that the mere fact that for the time being an applicant is penniless is in every case a sufficient ground for refusing an order for costs. Each case depends upon its own circumstances and lies within the discretion of the Tribunal."

We agree that matters of costs fall four square within the discretion of the tribunal. This tribunal after a hearing, extending as we have said over some five days, came to the conclusion that Mr Jain's claim was frivolous and vexatious. They no doubt took into account that part way through the hearing he decided to dispense with the services of his Solicitors and Counsel and conducted the remainder of the hearing himself.

It is not for us to express any views of what we ourselves would have done because we were not there, we did not hear the witnesses and we did not hear the argument, but we are satisfied that the decision as to costs which the Tribunal made was within the ambit of its discretion and one with which we cannot interfere.

The second, third and fourth heads of argument advanced by Mr Jain, related as we have indicated, to allegations of victimisation; racial discrimination and constructive dismissal. We have considered those submissions with some anxiety bearing in mind, as we do, that our only power to interfere with an industrial tribunal's decision, is if that tribunal erred in law either by misdirecting itself in law, or by coming to a conclusion which was perverse in the sense that no reasonable tribunal could have reached it. We have come to the conclusion that the points which Mr Jain makes in the second, third and fourth of his heads of claim relate to matters of fact rather than law, and we are unable to say that the Tribunal was perverse in reaching the conclusions which it did.

The fifth head of claim concerns allegations of bias by the Industrial Tribunal. Again we have given this argument anxious consideration. We have also taken into account a letter from the Chairman, dated 25th August 1992, written in response to a request by the Registrar. The allegations of bias, in the main, relate to what Mr Jain regarded as an unreasonably kindly approach to the Respondents' witnesses and an unreasonably hostile reception to the evidence which he gave. We can see nothing in that ground. It may be, as was the fact, that the Tribunal viewed more favourably the evidence given by the Respondents' witnesses, which in the main it accepted, whereas it viewed less favourably, the evidence given by Mr Jain, which in the main it rejected. But that is not bias in any true sense of the word and accordingly we are not able to help Mr Jain on that ground.

In the result, having gone through all the matters which Mr Jain raises, we have come to the unanimous conclusion that notwithstanding his carefully prepared written submission, and the argument which he had advanced in support of it, he has raised no matter which would entitle us to interfere with the decision of the Industrial Tribunal, and accordingly, this appeal must be dismissed.