Ayobiojo v London & Quadrant Housing Trust [1995] UKEAT 483_95_1310

EAT
Ayobiojo v London & Quadrant Housing Trust
[1995] UKEAT 483_95_1310 · 1995-10-13
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Ayobiojo in proceedings he has brought against the London & Quadrant Housing Trust. Before dealing with the substantive point raised on the appeal, we have heard argument on a preliminary application made by Mr Ayobiojo that the Respondent Trust should be debarred from participating in the appeal because they failed to comply with a direction as to the time within which they should serve a Respondent's answer and that they should not be granted an extension of time in relation to that answer.The background to the appeal is that these are proceedings for racial discrimination. The discrimination claim arises out of Mr Ayobiojo's non-selection for a shortlist and/or non- appointment to the post of Office Service Manager with the Trust in November/December 1993. The proceedings were started in February 1994, in what seemed to be a simple and straightforward complaint made in two sentences in the Originating Application. The response to the complaint in the IT3 was served in March 1994. After a number of interlocutory applications, which it is not necessary to consider on this part of the case, the hearing started at the Industrial Tribunal held at London (South) on 20 March 1995. During the course of the proceedings Mr Ayobiojo made an application that the Tribunal panel, chaired by Mr Milton, should be disqualified and the proceedings recommenced before a fresh panel. The Tribunal refused that application, but adjourned the proceedings to enable the Applicant to make an urgent application to this Tribunal. The extended reasons for that decision were notified to the parties on 5 April 1995. It is not necessary on this application for us to examine those reasons.A Notice of Appeal was served in time on 16 May 1995. A letter was sent by the Employment Appeal Tribunal's Registrar to the Trust's solicitors, Mrs Gillian Howard of Mischon de Reya on 18 May 1995. The letter enclosed a sealed copy of the Notice of Appeal and said:"You are a Respondent to the appeal and if you wish to oppose it you should complete a copy of the enclosed Form 4 and return it so as to reach this Office by not later than 1 June 1995. Your Answer will then be served on the Appellant."...The letter goes on to explain that, if the Respondent is not opposing the appeal, there is no need to complete the form but the Tribunal should be informed of that decision. That standard form letter to Respondents is sent out under Rule 6 of The Employment Appeal Tribunal Rules 1993 which provides:
"(1) The Registrar shall, as soon as practicable, notify every respondent of the date appointed by the Appeal Tribunal by which any answer under this rule must be delivered."
(2) A respondent who wishes to resist an appeal shall, within the time appointed under paragraph (1) of this rule, deliver to the Appeal Tribunal an answer in writing in, or substantially in, accordance with Form 3 in the Schedule to these Rules, setting out the grounds on which he relies,..."...The Respondent Trust did not return the Respondent's answer form so as to reach the E.A.T. office by 1 June. A Respondent's answer was served on 7 June. That is out of time. The answer said that the appeal would be resisted on the grounds relied on by the Industrial Tribunal. Reference was also made to a Skeleton Argument which would be relied on. That was provided to the Tribunal and to the Appellant.In correspondence between the parties, the position arrived at was that it was necessary for the Respondents to apply for an extension. Mr Ayobiojo was given an opportunity to state the grounds on which he opposed the extension. That is set out in detail in his document heading `Appellant's comments on Respondent's request for extension of time' dated 20 June 1995. Time was given to the Respondent Trust's advisors to make submissions on the various points made by Mr Ayobiojo in opposition to the extension. No detailed written submissions were made. In the meantime, a letter was sent out by the E.A.T., again in a standard form, notifying the parties of the hearing date of the appeal. That was sent out on 31 May and the enclosed notice said:
"TAKE NOTICE that this Appeal will be in the List for hearing before the Employment Appeal Tribunal... not before 11.30 a.m. on Tuesday 25th July 1995."
On 25 July 1995, three matters were listed, all involving Mr Ayobiojo. The first two matters concerned a dispute between him and the London Borough of Lewisham. One of those matters concerned an application by him for an extension of time for appealing the decision of an Industrial Tribunal. He was unsuccessful in that application. The reason for mentioning that will become apparent in a moment when we deal with the submissions made by Mr Ayobiojo on this application. There was not time on that day to deal with the present appeal in the dispute with London & Quadrant Housing Trust. This is the adjourned hearing of that appeal.At the start of business this morning, Mr Ayobiojo made it clear that, although, as indicated in correspondence, he was no longer pursuing an application for production of the Chairman's Notes of Evidence which had been refused in correspondence, he wished to proceed with an application under Rule 26 of The Employment Appeal Tribunal Rules . The application was that the Respondent should be debarred from taking any further part in this appeal. Rule 26 provides:
"If a respondent to any proceedings fails to deliver an answer,... (within the time appointed) or if any party fails to comply with an order or direction of the Appeal Tribunal, the Tribunal may order that he be debarred from taking any further part in the proceedings, or may make such other order as it thinks just."
The arguments advanced in support of barring the Respondent Trust from taking part in this appeal are these: first, that to refuse to do that would be detrimental treatment for Mr Ayobiojo, because it would be different treatment of him in relation to his appeal in the case involving the London Borough of Lewisham, than given to the Respondent Trust. The position, it was argued, is that there are time limits. He was refused an extension of time for putting in an appeal in his dispute with Lewisham Borough Council. On the reasoning used by this Tribunal to refuse him an extension, the right thing would be to refuse the Respondent Trust an extension in relation to their answer. It was also argued that it was incumbent on the Respondent Trust to show a good reason for not complying with the requirement that they should send in their answer by 1 June. They had not shown a good reason. The reason put forward was that documents relating to the appeal had been lost. That was a reason which had been used for documents in the Industrial Tribunal not being available; and this, it was submitted, was part of a pattern of behaviour on the part of the Respondents in dealing with this claim. There was no good reason for granting an extension, as no good reason was put forward explaining non-compliance.As to the issue of prejudice caused by non-compliance, Mr Ayobiojo pointed out that prejudice was not a matter that was considered in relation to his application for extension. If prejudice was relevant to this application, he had suffered it, because of continuing anxiety in relation to the matter in hand. Mr Ayobiojo accepts that this Tribunal has power to grant an extension. Rule 37 provides:"(1) The time prescribed by these Rules.... for doing any act may be extended (whether it has already expired or not)...."...He appreciated a point made by Ms Corby during the course of argument that there is a difference between applying for an extension of time for appealing and applying for an extension of time for responding to an appeal served in time. He nevertheless submitted that the Respondent should be debarred for the reasons helpfully summarised also by Mr Ayobiojo in his comments of 20 June 1995. Paragraph 9f says:
"Appellant puts forth that by their past conduct, the Respondent can not be believed as to why they have, yet again, lost another set of important documents and that their action amounts to wasting of both the Tribunal's and the Appeal Tribunal's time. That they have been vexatious and frivolous in their conduct and for that reason, the Appellant pleads, their response should be struck out according to section 26 EAT Rules."
Paragraph 10 of the comments concludes:
"With due respect to the Appeal Tribunal, if a reason such as documents going astray were to be accepted for extension of time under the narrated circumstances, then, time constraint as required by law will no longer have a meaning - especially without a compelling mitigating cause."
Mrs Goldman for the Trust opposed the application to debar her clients from taking part in the appeal. She submitted that we should grant an extension. As a preliminary observation she pointed out that, even if the application were successful in this Tribunal, that would not prevent her clients from taking part in the Industrial Tribunal. That is accepted as a correct analysis of the situation. She submitted that the date in the letter of 18 May, that is 1 June, notifying the time by which an answer should be sent, was not mandatory. She did not pursue that argument. It is not a good point. It is clear from the wording of the Rules, and the wording of the letter, that a requirement is imposed on the Respondent to put in an answer by the date specified. It is important that parties should keep to the date specified, because the E.A.T. is anxious to get on with the hearing of the appeal. If a party intends to put in an answer they should do it within the time stated. She submitted that, in the exercise of our discretion, we should grant an extension, because a satisfactory excuse had been put forward for the delay; that excuse was that documents sent by "document exchange" by her solicitors to her, in relation to the service of the Notice of Appeal, had not been received by her. She knew nothing about the matter and therefore was not able to draft a Respondent's answer until the letter notifying the hearing for 25 July had been received: that was the letter of 31 May. As soon as that was received and its contents communicated to her, a Respondent's answer was drafted and a Skeleton Argument was also prepared and served on the Tribunal and on Mr Ayobiojo earlier than would normally be the case.Mrs Goldman dealt in some detail with Mr Ayobiojo's reference to the loss of documents in the proceedings before the Industrial Tribunal and gave explanations. We do not examine those at the moment, because, in our view, that aspect of the case is not relevant to the issue we have to decide on the lateness of the Respondent's answer. In response to these arguments, Mr Ayobiojo said that there was time wasting by the Respondents in this case and that we should take that conduct into account in deciding how we exercise our discretion. Mrs Goldman made the point that the delay by her clients in submitting the answer had inflicted no prejudice on Mr Ayobiojo. The date fixed for the hearing by the Tribunal at 25 July, did not have to be moved as a result of that. The only reason why the matter has stood over from 25 July to today is unrelated to the lateness of the Respondent's answer. As already explained, it had to go over to today because there was no time left on 25 July to deal with this matter.We have weighed up all the arguments on each side, as we are required to do when we consider the exercise of a discretion. We have reached the conclusion that the Respondents should be granted an extension of time. We accordingly extend that time for the service of the answer to the 7 June 1995. They should be allowed to take part in this appeal. The reasons for the decision are first that the reason given for the delay is a satisfactory one. Secondly, we are satisfied by the explanations given that, as soon as the Respondent's advisor [Mrs Goldman], became aware of the hearing date and the need to put in a Respondent's answer, that was dealt with expeditiously. Thirdly, and most importantly, we are unable to see that Mr Ayobiojo has suffered any prejudice as a result of the delay in putting in the Respondent's answer. In our view, in the exercise of this discretion, prejudice is a relevant matter; an application for extension of time for putting in an answer is a different kind of application than one which is sought to extend the time for instituting an appeal. The differences are apparent alone from the wording of the respective rules in the Employment Appeal Tribunal Rules.As there has been no prejudice we are of the view that justice requires that an extension should be granted, so that this Tribunal can hear arguments on both sides. Justice normally requires that both sides should be entitled to put forward their arguments. In general a party should only be prevented from doing so, if there has been some injustice suffered by the other side as a result of the default on the part of the Respondent. For all those reasons we propose to grant the extension of time and refuse to debar the Respondents from taking part in the appeal.We will adjourn until 2.00 p.m. We grant an extension of time for the serving of the Respondent's answer and we refuse the application to debar the Respondents from the appeal. An application has been made by Mrs Goldman on behalf of the Trust for an order for costs under Rule 34. The Tribunal may order costs where:
"... any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings..."
Mrs Goldman's submission was that the application this morning, in relation to debarring her clients from participating in the appeal, had not only been unsuccessful; it had been a waste of time and had resulted in the Trust incurring costs which she was in a position to itemise. We have not found it necessary to ask for the information on costs or to ask Mr Ayobiojo for his submissions, because we have reached the conclusion that this is not a case falling within Rule 34. The reason for our conclusion is this. The Respondents were out of time in submitting their answer. It was necessary for them to ask for an extension. Mr Ayobiojo objected to the grant of the extension. The fact that he has failed is not proof that there has been unreasonable conduct on his part. If the Trust had submitted their answer in time, then it would not have been necessary for them to make an application for an extension and it would not have been open to Mr Ayobiojo to ask for the debarring order. In those circumstances we refuse to make an order for costs.As explained in the judgment given on the preliminary application this is an appeal from the Industrial Tribunal held at London (South) on 20 and 21 March 1995. For reasons given this morning, we have extended the time for the Respondents to submit their answer and we have allowed them to participate in the appeal. The appeal is of an unusual nature. In the experience of all of us it has taken an unusual course. We will deal with the various points which have arisen as briefly as possible, as there is no decision as yet on the merits and substance of the issue between the parties, i.e. whether the Respondent Trust discriminated against the Applicant on racial grounds, in relation to his non-selection for a short list and/or non-appointment to the post of Office Services Manager with the Respondent Trust in November and December 1993. We do not wish to say anything in this decision which will inhibit the Industrial Tribunal in making its decision on that complaint.The decision appealed against is an interlocutory one. As appears from the extended reasons notified to the parties on 5 April 1995, the decision of the Tribunal appealed against was made on the Applicant's application that the Tribunal panel should be disqualified and the proceedings recommenced with a fresh Tribunal. The Tribunal refused that application, but adjourned the proceedings to enable the Applicant to make an urgent application to the E.A.T. We emphasise that this appeal is only concerned with the limited question whether there is an error of law in the refusal to disqualify the Tribunal panel. We are not concerned on this appeal with the correctness or incorrectness of any decision made in relation to, for example, the production or non-production of documents, such as application forms of other candidates for the post in question. Those are matters to be investigated and resolved by the Industrial Tribunal.Before we examine the arguments on each side in relation to the order under appeal, we should comment on several matters which arose in the course of the clearing of the appeal. The first matter related to directions on the allocation of time for arguing the appeal. As explained in the earlier judgment, this appeal was adjourned from 25 July because it was not reached in view of the time taken on that day by two other appeals involving the Applicant. It is apparent from the judgment we gave this morning that the whole of this morning was taken up with an application normally disposed of in less than 15 minutes; namely, an application in relation to an extension of time and barring a person from participation in proceedings on the grounds of default in complying with time limits. The position at 2.00 p.m. was that we were anxious, as made clear to the parties this morning, that this case should not be adjourned again. We therefore directed on our return from the adjournment that the time available this afternoon should be allocated as to one hour to the Applicant and a half hour to the Respondent to advance their arguments on the points of law in the appeal. We made it clear that the Applicant would be entitled to respond to the Respondent's half hour submissions. We made it clear that the purpose of imposing these limits was to finish the hearing of the appeal. We thought that it was possible to do so because we had indicated at the beginning of today's hearing that we had read the papers, including two detailed Skeleton Arguments and knew what the issues were and what the outline arguments were.When these time allocations were announced, the Applicant requested a reference to what powers we had to take such a course. We directed him to Rule 25:
"The Appeal Tribunal may either of its own motion or at any stage of the proceedings, give any party directions as to any steps to be taken by him in relation to the proceedings."
In our view, that empowers us to place reasonable time limits on the presentation of oral argument on an appeal in which written arguments have already been submitted in Skeleton form. The second event was that, shortly into the hour allocated to him, the Applicant launched a motion that we should disqualify ourselves from continuing to hear the appeal; and he gave details of the grounds upon which he objected to us continuing to hear the case. He first of all submitted, by reference to some remarks made by me at the outset of the hearing in relation to the preliminary application, that I had indicated that our minds were already made up; and that was an unjudicial approach. He criticised the Tribunal for allowing the Respondent's Counsel, Mrs Goldman, to go into detail on the question of documents which had not been produced by them in the Industrial Tribunal hearing. He criticised the Tribunal, again as a result of my intervention when I informed him, before we retired to make our decision on the preliminary application, that we had heard enough argument to make our decision on the preliminary application. He advanced arguments to show how, in his view, we had acted unfairly by treating differently the Respondent's application for an extension of time in relation to their answer, and his application for an extension of time for instituting an appeal, determined by this Tribunal adversely to the Applicant in the Lewisham case on 25 July. He pointed out that we had taken lack of prejudice to him into account in deciding to grant an extension of time to the Respondent Trust; that we had refused to take lack of prejudice to the Respondent into account in refusing to grant him an extension of time in the Lewisham case. He made a similar criticism in relation to the comments in the judgment on the preliminary application as to the quick response of the Respondents to discovery that they were out of time. He said that he had not had the benefit of that argument in his favour on his application for an extension of time.He made general criticisms about the way in which the hearing was being conducted. One important specific criticism was in relation to our refusal to grant a renewed request by him, based on what he claimed was new evidence, for production of the Chairman's Notes. We pointed out to him, in refusing that request, that he had already stated his position in relation to Chairman's Notes in a letter to the Tribunal written after he had been refused an earlier request and was contemplating an appeal to the Court of Appeal. The Applicant emphasised in his submissions, in support of the renewed request, that without the Chairman's Notes it was not possible for him to argue his appeal properly. We pointed to his letter of 20 June 1995 to the Tribunal in which he informed the Tribunal as follows:
"With regard the issue of the Chairman's Note of Evidence, I have decided to await the outcome of the main case of appeal before the Appeal Tribunal due to cost and other domestic reasons."
It was in the light of that indication that we refused his request.That was the basis of the application. A disagreement then arose between the Tribunal and the Applicant as to the manner in which we should deal with this application. In his submission he was entitled to have a decision on that application before he decided whether or not to proceed with the appeal. We indicated to him, that in our view, he should proceed with the appeal. We would give our decision on the appeal at the end of argument on both sides. After we had withdrawn to consider how we should deal with the appeal, we returned and repeated a question to the Applicant, whether he wished to argue the appeal? He said "Well, he might, it depended on the result of the motion". We re-stated our position. The upshot of these altercations was that we issued a direction to him under Rule 25, that he should take the step, in relation to these proceedings, of arguing the appeal. He complied with that direction. If we may say so, we think it was helpful to us and to him to comply with that direction. The Applicant then took us in detail in the rest of the time allotted to him, plus an extra 15 minutes to explain the basis on which he wishes to challenge the Industrial Tribunal's refusal to disqualify itself from continuing to hear the case.As to the particular complaints against this Tribunal we have considered these and we decline to disqualify ourselves from hearing the appeal. Although it may not seem so to the Applicant, we retain an open mind in relation to every appeal until we have heard all the arguments. That does not mean that we have an empty mind. The well-established procedure of this Tribunal is that all members read all the papers before an oral hearing: if parties have complied with the practice of the Tribunal, they have submitted Skeleton Arguments. We have also read those, so that we know what the outline arguments are on each side. When we come into the Tribunal we are informed as to what the case is about. We then indicate to the parties those points on which we think oral argument is most likely to be helpful to a decision. We wish to emphasise two things - first, that we do not make up our minds until we have heard all the argument. There is nothing unjudicial or improper in a Tribunal forming provisional views about a case, as long as those views are open to argument and persuasion. Preliminary or provisional views may be demonstrated to be wrong. That is the purpose of oral argument. The second point we would emphasise is that it is the Tribunal which determines the course of the proceedings and is in ultimate control of them, not the parties. The parties have a right to a fair hearing of their case on paper and orally. The ultimate control of the procedure before the Tribunal is with the Tribunal.When we told the Appellant we had heard enough to decide the appeal, that is our right. There is no right to any party to the unlimited time of the Tribunal to put before the Tribunal everything that they consider to be relevant. This Tribunal decides what is relevant and what is helpful to the resolution of the appeal. As to the criticisms made of the way we dealt with the preliminary application in relation to the Lewisham case, the answer to those points is in the judgment given on the preliminary application. It relates directly to the intervention made by Ms Corby in the hearing this morning, pointing out to the Applicant that an application to this Tribunal for an extension of time for instituting an appeal is not governed by the same considerations as are relevant to an application by a Respondent to an appeal already instituted to extend time for serving an answer in accordance with the Registrar's directions. We have already answered the point relating to the request for the production of Chairman's Notes.For those reasons, this Tribunal continued to hear the appeal. This appeal is being dealt with fully and fairly. We attempt to deal with every appeal in that way. Special care is taken in cases when the complaint is of discrimination on grounds of race or sex. Those cases are regarded as giving rise to special problems. That leaves finally the question of how we deal with the appeal.We have heard arguments on both sides. We propose to deal with this part of the case briefly. In our view, the Tribunal did not adopt the correct procedure in dealing with the problem facing them when Mr Ayobiojo made his objection to the Tribunal continuing to hear the case. We conclude, however, that there was no error of law in them refusing to disqualify themselves. The arguments set out by Mrs Goldman in her Skeleton Argument are accepted in relation to the disqualification decision. Mr Ayobiojo has not shown that, in the reasons given in support of their decision, there was any legal error by the Tribunal in refusing to disqualify themselves. In our view, the error in the Tribunal's decision which is not the subject of an appeal, but is deserving of comment, is in failing to continue with the hearing to a conclusion on the merits and substance of the complaint. The Tribunal, in their extended reasons at paragraph 13, explained that they announced their ruling on the Applicant's motion to them to disqualify themselves and said this:
"... we felt ourselves in an invidious position since whatever decision we reached would be unsatisfactory to one party or the other. If we refused the application the applicant would view our refusal as further confirmation of the alleged biased approach of which he complained. On the other hand by allowing the application as we did it was obvious that there would be further delay and probably expense for the respondents. We gave no further reasons in Tribunal."
In paragraph 14 they said:
"In these written reasons it seems to us inappropriate to give detailed reasons since the proceedings are on-going. We point out that the Chairman attempted to explain to the applicant the main reasons for the questions asked by the Chairman which were complained of by the applicant and to place those questions within the context of the evidence which the applicant had been giving at the time. Since the applicant did not appear to accept the explanations given by the Chairman but went on to assert that the questioning indicated bias and/or a close mind and/or personal animosity the Tribunal felt compelled to allow the applicant to ventilate his complaints and arguments before the Employment Appeal Tribunal."
We do not agree with that approach. In our view, the unfortunate consequence of that approach is that the proceedings instituted in February 1994 have still not, as at 13 October 1995, concluded with a decision on the substance. A possible result of the course adopted is that there may now be two appeals to this Tribunal, instead of one. The certain result of their decision to adjourn the matter has been to add to the delay and increase the cost of resolving this dispute. Further time will be spent in resuming this appeal, since it will be necessary for the Tribunal, to whom we propose to remit this matter, to refresh their minds about the evidence in their notes. In our view, the correct procedure to follow is that laid down in this Tribunal in Peter Simper & Co Ltd v Cooke [1986] IRLR19 paragraph 21. The correct procedure would have been to continue with the hearing of the case until its conclusion, notwithstanding the wish of the Applicant to ventilate his complaints before the E.A.T. The Applicant would not have been prejudiced by such a course. If, at the end of the case, he won, he would have nothing to appeal about. If he lost, he would be entitled to raise it as a ground of appeal, provided it was supported by sufficiently detailed evidence of bias or procedural irregularity as a ground of complaint.In our view, the decision in the case of Peter Simper should be reiterated to remind Industrial Tribunals of the undesirability of adjourning proceedings in order to allow parties to bring an interlocutory appeal questioning a ruling made in the case. In that case the E.A.T. said in paragraph 21 of the report:
".... Save in extraordinary circumstances, it cannot be right for a litigant, unhappy with what he believes to be the indications from the Tribunal as to how the case is progressing, to apply, in the middle of the case, for a re-hearing before another Tribunal. It is, in our view, undesirable that the Tribunal accused of giving the opinion of bias should be asked itself to adjudicate on that matter. The dissatisfied litigant should ordinarily await the decision and then, if he thinks it appropriate, he should make his dissatisfaction with the conduct of the case by the Tribunal a ground of appeal."
We all agree with that statement of the proper procedure to be followed by an Industrial Tribunal in a case such as this. We would add that that will also normally be the correct procedure in dealing with any other interlocutory matter on which a Tribunal is asked to rule. There may be exceptional cases where it is impossible for the Tribunal to continue with the hearing, without a decision from this Tribunal on the correctness of the ruling. This is not an exceptional case. For those reasons we dismiss the appeal. In consequence of dismissing the appeal, we remit this matter to the same Industrial Tribunal for them to conclude the hearing already started. We express the hope that it will be possible for that hearing to be resumed as soon as possible.There is an application for costs made by Mrs Goldman on behalf of the Trust. It is undoubtedly her duty to ask for an order, in order to protect her clients' interests. No doubt the costs incurred in relation to these proceedings are substantial. If there is some prospect of recovery, it is her duty to seek to do that. However, for the reasons explained in the judgment this morning, by reference to Rule 34, the power of this Tribunal to order costs against a party is limited. This is not like an ordinary court where costs commonly follow the result of the case. We can only award costs if we consider the proceedings unnecessary, improper or vexatious, or there has been unreasonable delay, or other unreasonable conduct in bringing or conducting the proceedings.It is true this appeal has failed because there is no error of law in the Tribunal decision, but we feel unable to say that it was improper or vexatious or unreasonable for this appeal to be brought, when the Tribunal said in its own decision that they would adjourn the hearing because they felt compelled to allow the Applicant to ventilate his complaints and arguments before this Tribunal. As appears from the passage quoted from the Peter Simper case, that was not the correct course for the Tribunal to follow. The Tribunal should have not adjourned the proceedings. Despite the application made by the Applicant, they should have continued with the proceedings, heard all the evidence, considered all the documents and reached a decision. We are not able to say that it was unreasonable for the Applicant to pursue the appeal in the light of the course adopted by the Tribunal itself. We therefore do not make an order for costs against Mr Ayobiojo.We refuse leave to appeal. If you wish to pursue this matter you may apply to the Court of Appeal for leave. You have to have leave either of this Tribunal or of the Court of Appeal. If you wish to go on with this appeal, rather than go back to the Industrial Tribunal to complete the hearing, you must apply to the Court of Appeal. They decide whether to give you leave or not. They may only give you leave if they consider that there is a question of law to be argued and you have indicated what points you will be putting to them. We have remitted the matter to the Industrial Tribunal. If you want the Industrial Tribunal to adjourn the hearing until the result of your appeal, you must make the application to them. We are not running the case in the Industrial Tribunal. It is a matter for the Industrial Tribunal. We have remitted it to them. You may apply to them, if you wish, to stay the proceedings before them, pending the outcome of your application to the Court of Appeal.