England v South London Housing Association & Ors [1997] UKEAT 1055_96_3004

EAT

England v South London Housing Association & Ors

[1997] UKEAT 1055_96_3004 · 1997-04-30

MR JUSTICE LINDSAY : We have before us four appeals or appeals in four cases. In each case the applicant before the Industrial Tribunal and the appellant before us is Mr C P England. There are three separate respondents. They were respondents below and are respondents here. They are the South London Family Housing Association, Broomleigh Housing Association and Wandle Housing Association. The reason why there are only three respondents but four appeals is because two of the appeals concern the Broomleigh Housing Association.

There was hearing of the London (South) Industrial Tribunal on 1st August 1996 under the chairmanship of Mr D Booth, when the decisions now appealed against were reached.

It is desirable to give numbers to the particular cases so as not to become confused between them. The South London Housing Association case is 12398/96; the first Broomleigh one is 12405/96; the Wandle case is 12410/96; and the second Broomleigh case is 12411/96.

The cases were heard together and, indeed, were heard with another two cases which have not led to any appeal.

Mr England is a white male and is highly qualified in the area of housing schemes and is experienced as a housing officer. He has addressed us at length in person this morning with moderation and courtesy and skill but we have not found it necessary to call upon the respondents. The respondents appear before us by Mr Swift of Counsel and at one stage Mr Swift indicated that the respondents would not seek to resist an application for time to be given to Mr England to consider some recent papers, but, for all that, Mr England did not avail himself of that opportunity and was able to proceed as he did.

Dealing at first with some of the statutes and rules that are in play in this case, it is necessary to mention those. First is the Race Relations Act 1976 s.68:

"(1) An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

But that stern period is alleviated to some extent by sub-section (6):

"(6) A court or tribunal may nevertheless consider any such complaint or application which is out of time if , in all the circumstances of the case, it considers that it is just and equitable to do so."

I think that is the only statute that needs to be borne in mind in detail, but there are a number of rules that need to be in mind. The first is Rule 6 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 in Sch. 1:

"6.-(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates.

(2) A tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties given them an opportunity to submit representations in writing and to advance oral argument before the tribunal."

Then Rule 7 applies in some cases before us:

"(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take in the proceedings relating to that matter.

(5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit.

(6) An order made under this rule, and the tribunal's reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman. ..."

I think I need to mention Rule 13. It is in the nature of rules that no body of rules ever is able to provide in specific detail for every single contingency that later comes to occur, and so one is hardly surprised to find a rule such as Rule 13(1):

"13.-(1) Subject to the provisions of these rules, a tribunal may regulate its own procedure."

There is also then in 13(2)(e) a provision for the striking out of cases where the application is properly to be regarded as scandalous, frivolous or vexatious; and 13(3) describes how that can come about.

The last of the rules I need to refer to, Rule 18, is headed "Combined proceedings"; it says:

"18.-(1) Where, in relation to two or more originating applications pending before the industrial tribunals, it appears to an industrial tribunal, on the application of a party made by notice to the Secretary or of its own motion, that - (a) a common question of law or fact arises in some or all the originating applications, or (b) the relief claimed in some or all of those originating applications is in respect of or arises out of the same set of facts, or (c) for any other reason it is desirable to make an order under this rule,

the tribunal may order that some (as specified in the order) or all of the originating applications in respect of which it so appears to the tribunal shall be considered together, and may give such consequential directions as may be necessary."

Those are some of the rules that we need to have in mind.

There are also some incontestable, as it seems to us, propositions which we need to have in mind. Neither side has expressly taken us to authorities, thought no doubt Mr Swift would have done had he been given the opportunity, because the respondents have produced a bundle of authorities, and it would be appropriate if I briefly mentioned some passages from those authorities to indicate principles which we regard as appropriate to be had in mind. It will not be necessary to read the decisions themselves; in most cases, it will suffice merely to note passages from the headnotes.

Thus in Hutchison v Westward Television Limited

[1977] ICR 279

we bear in mind from heading (2) of " Held " that:

"... on an appeal from a tribunal's decision, the onus is on the appellant to show that the industrial tribunal had exercised that [ a ] discretion incorrectly in that they had taken into account facts which they ought not to have done, or that they had not taken into account relevant factors or that their decision was so unreasonable that no reasonable tribunal could have reached it; ..."

At page 282E of the judgment Phillips J. said, talking of discretion and, in particular, the discretion there identified:

"... Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open on appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."

That was a case which, as page 283D indicated:

"... What we are really here concerned with is whether or not in all the circumstances of the case the industrial tribunal considered it just and equitable to extend the time. They did not. That was a decision for the industrial tribunal and not for us. ..."

So much for Hutchison .

At Tab.3 of the bundle which we were handed and which has also been made available to Mr England there is the case of the Retarded Children's Aid Society v Day

[1978] ICR 437

, where at p.438 under the heading of " Per curiam " between C-D it says:

"The Employment Appeal Tribunal's function is to correct errors of law and the fact that its members would decide a case differently does not mean that they can overrule an industrial tribunal who have not misdirected themselves."

At Tab.6 in the bundle of authorities, there is the case of Ashmore v British Coal Corporation

[1990] QB 338

where, again referring only to the headnote under the passages marked " Held ", it there held:

"... that the categories of conduct rendering a claim frivolous, vexatious or an abuse of the process were not closed but depended on all the relevant circumstances of the particular case, public policy and the interests of justice being very material considerations; ...

Per curiam . A claim is not only to be struck out as being an abuse of the process if it is a sham, not honest or not bona fide. It is dangerous to try and define fully the circumstances which can be regarded as an abuse of process."

At Tab. 7 in the bundle there is the case of Adams and Rayner v West Sussex County Council

[1990] IRLR 215

, where the Employment Appeal Tribunal under Wood J. held:

"The EAT has no general authority to review an industrial tribunal's exercise of discretion on interlocutory matters. The same principle applies to interlocutory appeals as applies to appeals from final orders. The decision to this effect in Medallion Holidays Ltd v Birch would be preferred to the conflicting decision in British Library v Payyza .

The issues to be examined when considering an interlocutory order of an industrial tribunal or of a chairman sitting alone are(a) Is the order made one within the powers given to the Tribunal?

(b) Has the discretion been exercised within guiding legal principles, eg as to confidential documents in discovery issues?

We also have before us the transcript of a decision of Judge Peter Clark in the Employment Appeal Tribunal in the matter of Roberts v United Friendly Insurance PLC [Unreported -

EAT/436/95

] which is a commentary upon the Employment Appeal Tribunal Practice Direction of 20th March 1996 in relation to how one should pursue complaints against the conduct of an Industrial Tribunal, and I do not think I need to refer any further to that.

Of the four appeals before us, there were originally different solicitors for each of the respective Housing Associations concerned. We have before us affidavit evidence from three solicitors who were present at the hearing. We also have the Chairman's Notes of Evidence, and we have the Chairman's comments on the Notices of Appeal. Plainly it is proper for us to have such matter in mind.

Looking, then, at the particular appeals, although Mr England has a Notice of Appeal giving separate reasons in each separate case, one sees that to some extent they overlap and I will refer to his Notices of Appeal later. But, just taking the cases separately for a moment, and going back to 12398/96, the South London Family Housing Association ["South London"] case, the position there was that Mr England makes complaint as to racial discrimination. He had been dismissed from his job with South London on 12th June 1992. He launched unfair dismissal proceedings on 22nd February 1996. Those unfair dismissal proceedings were themselves dismissed because he had not put in the necessary two years qualifying period. He also, as I mentioned, brought racial discrimination proceedings, and those were launched on 26th February 1996. It was only the racial discrimination issue that was before this particular Industrial Tribunal. It was ruled that his complaint was out of time. As, indeed, it very substantially was. One has to bear in mind that the question of the giving or withholding of leave to proceed out of time under s.68 is very much a matter for discretion of the Industrial Tribunal doing their best on the facts as they are presented to them. So there Mr England lost because he was out of time. It was ruled that his case could not proceed for that reason.

The second case, 12405/96, is the first of the Broomleigh cases. In that case he had applied to be the Housing Officer for Broomleigh. He was shortlisted. He was interviewed on 12th October 1995. He was told that he was unsuccessful on 19th October 1995. The post was filled by a white female and he was told that that was so on 24th October 1995. That was what the Industrial Tribunal concluded on the evidence presented to them. He had, so far as the Industrial Tribunal held, full information on which to make his complaint of racial discrimination and sexual discrimination at hand on 24th October 1995 at the latest. He made no application in respect of racial discrimination and sexual discrimination until 26th February 1996. In other words, a month or so beyond the three month period stipulated for, and it was on that ground that the Industrial Tribunal struck out his case. It was not permitted to go forward because it was out of time. Before I come to his grounds as specified in the various Notices of Appeal, I should mention one ground that he does raise here. He says that in relation to this case, evidence was heard from a Mrs Pat Taylor. It was the case that she was cross-examined at length at the hearing by Mr England, but he does complain that oral evidence should not have been received at all. That does not seem, in our view, to be a complaint of any substance. Under the time provisions the matter was considered, in effect, under Rule 6 under the heading "Entitlement to bring or contest proceedings". There is nothing under Rule 6 that precludes the admissibility of oral evidence on oath, and Rule 13, giving the tribunal the ability to regulate its own procedure, would plainly permit in a proper case the admissibility of oral evidence on oath. I emphasise that Mrs Taylor was cross-examined and at length by Mr England. There is a complaint by Mr England that he was, as he puts it, "ambushed" in relation to this case. But there was no application, as it seems, made for an adjournment at the time, and when I put to him that he had cross-examined Mrs Taylor he said "Well, I played the game". Well, so he did, but he lost. That of itself is no reason for granting a replay. I will come back to other grounds in relation to that appeal later.

The third appeal, 12410/96, is the Wandle case. In that case Mr England's complaint was for racial discrimination and sexual discrimination. The office of Housing Officer for Wandle was advertised to the public in the month of October 1995. Mr England applied but was not shortlisted. Two British Europeans were shortlisted, and ultimately a white male was appointed. In these circumstances the tribunal took the view that the application for racial and sexual discrimination was frivolous, and they struck out the complaint. One of Mr England's complaints here is that the tribunal just misunderstood his claim. It was not that he was complaining that he was not appointed or not only that he was complaining he was not appointed, but that he was not shortlisted either. However, it is impossible to conclude that a complaint as to shortlisting was not in mind of the tribunal because what they say in their paragraph 13 is:

"... Mr England was not short-listed because he did not reach the job description required but those short-listed did include a white male who was appointed to the job."

They plainly had in mind that shortlisting was relevant to their considerations. True it is that their conclusion could have been more clearly expressed, but it is not possible for us to say that they misdirected themselves in concluding that the case was frivolous given the approach as the matter was explained to them at the time. That is the third of the four appeals.

The fourth is 12411/96, the other Broomleigh case. This, in a way, has more than one limb. The claims there were for racial discrimination and sexual discrimination. Part of the claim, and it was struck out, was a claim in relation to Mr England's application to be Temporary Income Development Officer. His application for that job required him to apply to a firm of consultants who were acting as agents for the prospective employer. The closing date for applications, as held by the Industrial Tribunal, was 8th December 1995. The actual date of the receipt of Mr England's applications, again as found by the Industrial Tribunal, was 11th December 1995, the 8th being a Friday and the 11th being the Monday. Before the Industrial Tribunal there was a letter from the agents, Austin Knight UK Limited, whom Mr England described as "reputable", to Broomleigh on the subject of applications, and what the letter says, (it is letter of 28th June 1996) is:

"With regards to Item 2, Mr England's application form was received three days after the closing date and, along with others received late his application was not assessed and put forward for consideration."

The position was, therefore, that, a deadline having been set by the agents acting for the employer, that deadline was not complied with and hence Mr England's application was not considered. It is therefore with no surprise that one finds that the Industrial Tribunal treated his application for racial and sexual discrimination in relation to that job application as frivolous and that it was on that ground struck out. Again, Mr England says that he was ambushed, but again there had been no application for an adjournment.

I mentioned that the Broomleigh second case had two elements, and another concerned his application for the job of Team Clerk. On this aspect the tribunal came to a different conclusion which I need to read at a little length. It will be borne I mind there is the rule that I read out earlier in relation to circumstances in which a deposit ahead of the hearing can be required as a condition of a case going forward. What the tribunal found at their paragraph 10 was that, speaking of Mr England:

"10. He also complained that he had not been short-listed for a post as Team Clerk . The facts are disclosed from the bundles produced by the Respondent showed that any details relating to the name of the person, his race, nationality and marital status were on a separate page from the rest of the application. Upon receipt of the applications the page concerning personal details was removed and replaced on the rest of the papers by a number and it was only that number [that] was seen by those who were short-listed. If therefore there was any decision to be taken on short-listing it could not be taken by anybody with knowledge of the Applicant's race, nationality or gender and in those circumstances it was not possible to argue there could have been any basis for a claim of discrimination.

11. Mr England argued that this could have to be proved by evidence and was not part of the consideration for a preliminary hearing review or an application to strike out. It was possible he said that the Respondent's staff could have broken the rules and that because he had not received replies to his race relations questionnaire he could not have in his possession the information which he could call either in support of his claim or which might lead him it withdraw it. Until he had that information his case should be maintained.

12. We examined the evidence carefully and have grave doubts whether Mr England could have any reasonable prospects of success in this case. Nevertheless, he had not received all the information he required from the Respondents and it was not appropriate to strike the matter out as being frivolous. Nevertheless, the conditions in Rule 7 apply to the case and using what knowledge we have of the Applicant's means we order that he pay a £50.00 deposit before the case could proceed to a full hearing."

£50.00 being , I note, a third of what it might have been, a third of the maximum, and one of the points taken here by Mr England is that, in truth, the Industrial Tribunal had no knowledge of the applicant's means. However, it is not his case that he could not comply with an order for the provision of £50.00, and accordingly there seems nothing practical in that point.

So far I have dealt with a number of the points raised by Mr England in respect of the particular cases, but it is now convenient to look at his Notice of Appeal and deal with a number of the further points not so far referred to.

I am looking firstly at the South London case. He first of all says there that:

"i. the Tribunal allowed the respondent to disadvantage the appellant by handing him their papers only five minutes before the hearing."

Well, even if that is true, (and one is bound to notice that in the evidence of the solicitors put before us there is some reason possibly to doubt that in the sense that one at least of the solicitors says that he was there 45 minutes before the hearing but simply could not find Mr England), but even supposing that it was the case that the papers were available only five minutes before the hearing and that that was the fault of the respondents, then, even so, there was no adjournment sought on that ground. In other words, Mr England chose, as he put it, then to play the game, and therefore can hardly complain that he had not had time to prepare.

The second ground is that:

"ii. the Tribunal did not consider the appellant's application for orders for further and better particulars and for discovery."

The Chairman indicates that the question of discovery was indeed investigated. The Chairman tells us that Mr England was asked in what manner discovery would aid him, and, in response to his answer, the Industrial Tribunal felt that discovery was not proper to be ordered. It is far from automatic in Industrial Tribunals cases and it is to be borne in mind, especially in cases of racial and sexual discrimination, that it can be oppressive in that in can be time consuming and be expensive to seek out and prepare material for discovery. We see nothing that amounts to an error of law on this subject.

Then thirdly Mr England says:

"iii. the Tribunal allowed six cases to be run together."

Well, yes that is that case. They were listed together. There was no order made for consolidation or for the future running together of cases until the end of the hearing that we are considering. Some measure of flexibility has to be allowed to an Industrial Tribunal and we do not see that there was any error of law arising in the common sense approach, as it seems to us, that the six cases, four of which are now on appeal, should be considered together. It enabled the respondents, although having different solicitors and being different bodies, to appear with only one Counsel, and the economical progress of the case plainly pointed to there being a powerful reason for the cases being heard together. If Mr England had been able to show some real prejudice suffered by reason of their being heard together, that would have been one thing; but merely to assert prejudice seems to us to be insufficient. Mr England has plainly demonstrated his ability to argue more than one case with conviction and skill and we do not see him to have been put to any material disadvantage by the six cases being taken together.

Mr England says:

"iv the Tribunal considered preliminary matters before ordering discovery and further and better particulars."

Well, yes that is the case. It would be right for the tribunal to consider preliminary matters, namely whether the cases were to proceed at all, before giving details as to how they should proceed if they were to proceed. It is not at all unreasonable to find out whether a case is going to go forward at all before making orders for particulars or for discovery.

Next, the complaint is:

"v. the Tribunal accepted statements by the respondents solicitors as statements of fact."

This is denied by the Chairman. It is also denied in the affidavits of the solicitors concerned. Of course, in the ordinary way information is given in the course of argument and no doubt there was reference to the correspondence that was put before the Industrial Tribunal. Indeed, we know that there was a reference to the correspondence embodied in their reasoning. But no evidence properly-so-called was given by the solicitors; the only evidence, properly-so-called, was given by Mrs Pat Taylor and that was cross-examined at some length by Mr England. We do not see that there was here any improper bland acceptance by the tribunal simply on the basis that what was being accepted was said by the respondents' solicitors.

Next, it is said:

"vi. the appellant was not given the opportunity to address the Tribunal following the case for the respondent."

That is denied by the Chairman and denied also by the solicitors who have deposed in this matter; and even Mr England I do not take to say that he was positively told to stop speaking. We cannot find on the facts presented to us that that case is made out.

Next it is said:

"vii. the Tribunal did not consider why the respondent refused to reply to the statutory questionnaires put to them by the appellant."

This perhaps involves the reference to another section of the Race Relations Act 1976 ; it is s.65 under the heading "Help for aggrieved persons in obtaining information etc.". It sets out the questionnaire procedure and it provides:

(2) ... (a) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period [ to a questionnaire, then the tribunal can ] draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."

On this we have the benefit of the Chairman's letter and his answer is:

"(vii) ... We did consider the point but, even drawing a favourable inference for the Applicant from that would not have altered the decision."

In other words the Industrial Tribunal had in mind the question of s.65. They had in mind the possibility of drawing inferences, but took the view that even if an inference could be drawn in Mr England's favour, it would not have availed him. That seems to us to be a reaction which was open to the Chairman and the Industrial Tribunal to take. We cannot see in that in itself any misdirection in relation to the law.

Then Mr England says that:

"viii. the decision was perverse and contrary to the evidence."

It is a familiar and very heavy burden that an appellant has to bear when he makes such an allegation. Perversity is specifically denied by the Chairman, for what that is worth, but in any event we do not find the heavy burden that an appellant undertakes when he seeks to make such a case is here made out.

Finally, amongst his points on the South London case is that:

"ix. the Tribunal did not allow the appellant to address them on the late submission of the IT.1s or allow him to plead his case on this point."

That is denied by the Chairman. But, in any event, the formal details of IT1s and IT3s are very much a matter of properly to be left to the Industrial Tribunal itself, and we do not find any error in their account on that score.

I will not deal separately with the Notice of Appeal in 12405/96 because I think that the points there have already been covered.

Turning to 12410/96, the Wandle case, there is a separate ground which I have already dealt with, ground vi., Mr England complains that:

"vi. the tribunal mis-directed itself in law and misunderstood what the case was about, which was shortlisting. The Application to the Industrial Tribunal said "I applied for the post of housing officer and was not shortlisted"."

But I have already cited from the passage of the Industrial Tribunal showing that they understood that shortlisting was relevant and was in their minds, and there is nothing there that Mr England can complain about.

Turning to the form of appeal in 12411/96, the second of the Broomleigh cases. At iii. Mr England complains:

"iii. the Tribunal considered the case when no IT.3 had been submitted and no reason was given as to why the IT.3 was or might be submitted late and the IT.3 was not signed. The two posts of Team Clerk were not referred to on the IT.3."

Well, there does seem to have been an IT3 in this case, and we have it page 50. Page 50 is headed "NOTICE OF APPEARANCE"; it is put in by Broomleigh, and at the head it bears the two numbers "12411/1996 & 12405/1996", so it purported to deal with both. The fact that our copy is not signed is not of itself significant, and the principal matter before the Industrial Tribunal was not so much the strength of the IT3, that is to say the respondent's' response, but the nature of the IT1, in other words the claim made by Mr England. Even if there had been no IT3 the strength of the IT1 would still have been as weak as the Industrial Tribunal found it to be. It seems to us that the detailed paperwork is very much a matter for the Industrial Tribunal itself, and we do not see any point of law that arises in relation to the Industrial Tribunal's consideration of that issue.

Ground x. in that 12411/96 case, Mr England says:

"x. the Tribunal allowed written statements to be tendered in evidence and this stopped the appellant from cross-examination on the evidence."

That is denied in the evidence that is before us, taking, for example, that of Paul John White of Argles & Court, who were solicitors to Broomleigh. He says in paragraph 9 of his affidavit:

"I can confirm that no witness statements were submitted to the Industrial Tribunal."

There was none, and such evidence as was given, that is to say that of Mrs Pat Taylor, was given by way of oral evidence, She was cross-examined at length in the way that I have already mentioned. So there was no stopping of the appellant from cross-examination on the evidence.

Rule 7 is relied upon in ground xii. in the Broomleigh case; it says:

"xii. Rule 7 was misinterpreted and misapplied."

We do not find that to be the case.

I think I have dealt, I hope, with all, or at any rate the more substantial of Mr England's many complaints. It is to be borne in mind, as indicated in the authorities which we cited at the outset, that it is no good seeking to convince us that that were we approaching the matter afresh we would have decided differently, even if that was the case. What Mr England has had to do, and has failed to be able to do, is to demonstrate errors of law in the decisions of the Industrial Tribunal in the four cases before us. We find no such error and, accordingly, dismiss the appeals.

[An application for costs on behalf of the respondents made by Mr Swift.]

MR JUSTICE LINDSAY : We now have before us an application by all three of the respondents, the South London, Broomleigh and Wandle Housing Associations respectively, that there should be an award of costs in their favour against Mr England. The application is made under Rule 34 of the Employment Appeal Tribunal Rules 1993 :

"34.-(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may [ our emphasis ] order the party to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."

Mr Swift on behalf of the respondents draws our attention to ET Marler Ltd v Robertson {1974] ICR 72 , and in particular to the passage at page 76D, where Sir Hugh Griffiths, as he then was, said this:

"... If the employee know that there is no substance in his claim and it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to pursue it. It an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure. In such cases the tribunal may and doubtless usually will award costs against the employee. ..."

Well, that was, in fact, discussing not the costs before the Employment Appeal Tribunal, but, for all that, as a general principle the wisdom of that citation cannot be doubted.

Here, it is not said by Mr Swift that the employee, Mr England knew at any material time that there was no substance in his claim and that it was bound to fail. On the contrary, we would expect that Mr England has pursued his claim, although it has failed, in the expectation of success and without his seeing that it was bound to fail.

Nor is it said that his claim was out of spite to harass his employers or for some improper motive. So the case, so far as that particular analysis is concerned, has to fall, if the respondents are to succeed on costs, within the expression "if the claim is on the face of it so manifestly misconceived that it can have no prospect of success". But, against that, as Miss Holroyd has pointed out, there is the powerful factor that there was here a preliminary hearing at the Employment Appeal Tribunal and the matter was allowed to go forward. That seems to us a powerful consideration such that it cannot be described that the appeal was "on the face of it", to use Sir Hugh Griffith's words, "so manifestly misconceived".

But beyond that, Mr Swift sensibly and inevitably accepts that even if it appears to the appeal tribunal that a proceeding has been unnecessary or vexatious, the word " may " still imports a discretion and that an order for costs does not follow as night follows day even in such a case. He accepts, too, that we are entitled to have in mind that Mr England is unemployed and plainly in receipt of some form of state aid, (precisely what is not clear) and, as he himself says, "has no money". That is a factor that we are entitled to take into account.

Accordingly we make no order for costs in the respondents' favour, but we do wish fire a shot, so to speak, across Mr England's bow. We are told that there are other cases of a not dissimilar nature being pursued by Mr England. He now knows of the existence of Rule 34 as to costs before the Employment Appeal Tribunal. He now has a much wider knowledge of the likely approach of an Employment Appeal Tribunal to appeals. He does run a grave risk, even if he is penniless and proves himself to be so, that he might incur an order for costs against him in other cases. Obviously, whether or not there is to be an order for costs in other cases is a matter exclusively for those who hear those other cases, but it will be within the proper range of those seeking orders for costs in later cases to refer to the application made by the respondents in this case, and to our response to it. In other words, Mr England has escaped an order for costs once here before us but it does not follow that he will necessarily escape an order for costs in other cases.