MS M MCCULLUM v LONDON BOROUGH OF NEWHAM [2001] UKEAT 0496_00_3110

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0496_00_3110

Case No Appeal No. PA/0496/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS M MCCULLUMAPPELLANT

LONDON BOROUGH OF NEWHAMRESPONDENT

Before

Mr Justice Lindsay

Date 31 October 2001

[1]APPEARANCES For the Appellant MR NIRAN DE SILVA (of Counsel) Messrs Ashok Patel & Co Solicitors 257 Balham High Road London SW17 7BD For the Respondent MR DAMIAN MCCARTHY (of Counsel) Legal Services Division London Borough of Newham Barking Road East Ham London E6 2RP THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) This is the appeal of Ms Mavis McCullum against the Registrar's refusal to extend time for a Notice of Appeal to be presented by her. The Notice of Appeal is in the matter McCullum v The London Borough of Newham . Today Mr De Silva appears for the Appellant, Ms McCullum, and Mr McCarthy for the London Borough.

[2]For a fuller understanding of the foreground one needs to have some explanation, I think, of the background; that is that on 26 October 1998 Ms McCullum, as she then understood to be the position, was dismissed from her employment by Newham. It was later found out that the dismissal was, in terms, suspended only, because the employer at the time had written:

"I can confirm that I found it substantiated that you are not sufficiently capable of performing your duties due to sustained sickness absence and that you be dismissed from the Council's service, your last day of service being Monday 26 th October 1998. This dismissal will be suspended until advice is sought from the Occupational Health Department with regards to the report received from your consultant Psychiatrist."

Awareness of that suspension lay in the future; on 26 October 1998 Ms McCullum thought she had been dismissed.

[3]On 26 January 1999 Ms McCullum lodged an IT1 for unfair dismissal. It identified P.C.D. York & Co as her solicitors. It asserted that she had been dismissed on 26 October 1998. The consequence, if that was the correct date of her dismissal, would be that the IT1 was one day late. That appeared to be the case on the face of the IT1. On 15 February 1999 Newham put in an IT3 and took the point that the complaint was out of time. A hearing was then directed for 16 March 1999 on the time bar issue. Later (as will become apparent) the Employment Tribunal noted this: "3 Notice of that direction [that is to say the direction for the hearing on 16 March] was sent to the parties by letter dated 24 February 1999 and the notice of hearing was sent on 26 February 1999. Those were sent to the solicitors then on record as acting for Ms McCullum. 4 When the matter came on to be heard on 16 March 1999, there was no attendance by Ms McCullum nor was she represented. In the absence of any evidence from the Applicant, the Tribunal concluded that it did not have jurisdiction. That decision was promulgated on 19 March 1999. In the reasons for the decision, it was observed that the Originating Application had been provided without any particulars and the view was expressed that it was invalid because it did not comply with Rule 1 of the Employment Tribunal Rules of Procedure 1993. That view took no account of the decision of the Employment Appeal Tribunal in Burns International Security Services (UK) Ltd v Butt

[1983] ICR 547

and it was not an accurate statement of law. On 16 March 1999 there had been a one day hearing at Stratford and, as we have just noted, no one then attended for the Applicant. On 19 March the Summary Reasons were sent to the parties. It was held that the IT1 was one day out of time. In the absence of the Applicant the Employment Tribunal had felt that it had no alternative other than to refuse to extend time; the only details that it had suggested that the IT1 was indeed one day late and there was no one to explain why that was so or that the dates given were wrong.

[4]Throughout this time, or for a greater part of it, Ms McCullum was instructing solicitors, but she fell out with them and on 19 May 1999 the Employment Tribunal received a letter from her saying she was no longer instructing P.C.D. York as her solicitors. On the same day, 19 May, the Chairman drew attention, in a letter to Ms McCullum, of the possibility of the earlier decision being reviewed. Later the Tribunal described what had happened as follows:

"By letter dated 19 May, a letter received by Ms McCullum on 20 May, the Regional Secretary sent to Ms McCullum a copy of the decision of 16 March and a document entitled "

Notes on Tribunal Decisions". The letter concluded:

"You can seek a review if you set out reasons why neither yourself nor your representative were at the hearing."

Paragraph 1 of the notes on Tribunal decisions is set out below:

"Please read these notes carefully. There are time limits for seeking a review of a decision or appealing against it; these limits are described in paragraphs 14 and 19 below."

Paragraph 14 indicated that the time limit for seeking a review was 14 days and, in paragraph 11, it was pointed out that an Employment Tribunal could, in exceptional circumstances, consider an extension of time." That letter of 19 May was received by Ms McCullum on 20 May.

[5]Nothing further was heard until 20 August 1999 when new solicitors come on to the scene and requested that a review should be made of the decision of 19 March 1999. On 30 September 1999 for the first time particulars of claim in the IT1 were given, now seeking to add, or adding, claims for racial discrimination and disability discrimination that had not been there before. On 18 November 1999 there was an application for a review; it was actually then considered by an Employment Tribunal consisting of three persons and there were counsel on both sides on that occasion; indeed, of the two counsel there, Mr McCarthy, who then appeared for Newham, is of course appearing also for Newham today. On 10 December 1999 the decision on that application for a review was sent to the parties. The decision was unanimous; it was the decision of the Chairman under the chairmanship of Mr J N Leonard at Stratford, and it was:

"The unanimous decision of the Tribunal is that the application of Ms McCullum for a review of the decision sent to the parties on 19 March 1999 is refused."

[6]The Tribunal made some points in Ms McCullum's favour. They noted, as we have already cited, the passage that explained that no one had turned up on 16 March at the earlier decision. The Employment Tribunal divided delay that had occurred into three periods, three segments so to speak. The first was from 19 March 1999 to 18 May 1999, and, as to that, they referred to the letter that we have already quoted, the letter of 19 May received by Ms McCullum on 20 May. They said:

"We accept Ms McCullum's evidence that, throughout the first period she was in complete ignorance of the fact that a hearing had taken place on the jurisdiction issue and that a conclusion adverse to her had been reached. The reason for that ignorance was that her solicitors had kept that information from her. There is no arguable basis upon which it could be concluded that the solicitors were themselves in ignorance."

They also said:

"We consider it to be probable that had Ms McCullum's case been presented at the hearing on 16 March 1999, the Tribunal would have concluded that it had jurisdiction to consider her complaint of unfair dismissal. That is because the dismissal decision contained in the letter of 26 October 1998 was expressed to be conditional. The dismissal was not to take effect but was suspended pending consideration of medical retirement. We think it probable that we would have concluded that the dismissal did not take effect on 26 October and that the Originating Application was presented in time. We consider that as a factor to which we should attach some weight."

So, that first period down to 18 May 1999 is a period of delay which the Employment Tribunal was not willing to regard as culpable on Ms McCullum's part.

[7]The second period that they dealt with was from 20 May 1999 to 30 June 1999. Ms McCullum during this period, having dismissed P.C.D. York & Co, was seeking advice from her union. The Tribunal says:

"We consider that it was reasonable to take advice from the union and we do not consider that it represented unreasonable conduct to have waited a month for a reply."

So, again, no material culpability on Ms McCullum's part.

[8]The third period is described as being from 30 June 1999 to 20 August 1999. The Tribunal, notwithstanding that they described the period as beginning on 30 June, say this:

"By 20 May 1999, Ms McCullum knew what had gone wrong and she knew what was required to remedy the situation. There was a further period of delay of some three months."

A little later they say:

"The delay from 20 May 1999 is simply too long and for which there exists no adequate excuse to allow it to be said that this review should be permitted to proceed."

Accordingly, the review was refused. As we have noted, that decision was sent to the parties on 10 December 1999. Thus the 42 period began on 10 December (the 42 day period during which an appeal needs to be lodged at the Employment Appeal Tribunal) and it expired on 20 January 2000.

[9]On 19 April 2000 (possibly 18 April if it was faxed) a Notice of Appeal was received from Ms McCullum at the Employment Appeal Tribunal, coupled with a request for an extension of time. The Notice of Appeal is only directed against the refusal of the review, in other words, against the decision promulgated on 10 December 1999. On 4 May 2000 Newham indicated that it would object to any extension of time, and Newham, having indicated that it intended to oppose, said inter alia :

"The application is substantially time barred and will cause severe prejudice to the Respondent. If this case is re-opened and it is remitted to an ET for determination, the Respondents will find it virtually impossible to deal with allegations relating back to 1998. Key witnesses have long left the Council's employ and memories have faded."

[10]On 12 July 2000 Ms McCullum's present solicitors enter the fray. They say:

"The Appellant's dismissal was suspended on 26 th October 1998 and was then apparently backdated to this date by letter of 30 th November 1998. The grounds upon which the Respondent (apparently genuinely) claims that it would find it "virtually impossible" to deal with allegations 20 months old was so briefly stated that they cannot be either sensibly considered or countermanded. The Employment Tribunals (whether by way of adjourned first hearing or remission from the EAT) and the civil courts can and do regularly resolve factual disputes of much greater antiquity than those contained in this present case."

[11]On that footing the matter went forward to the Registrar here at the Employment Appeal Tribunal and on 13 July 2000 the Registrar refused an extension of time. The last part of the order made by Ms Selio said:

"AND UPON DUE CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS there has been shown no exceptional reasons why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993. IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused."

There is a period of 5 days allowed for appeal against such orders as that made by the Registrar. Ms McCullum's solicitors received the Order on 14 July. There is no explanation given for why more than 5 days was taken but it was not until 31 July that Ms McCullum appealed the Registrar's decision.

[12]The matter came before me sitting in Chambers on 20 February 2001 and only shortly before that a medical certificate had been produced by Ms McCullum to, I think, in the first instance, me, and then next to Mr McCarthy, representing Newham; it came, so to speak, out of the blue. There were considerable reasons to query the certificate as it was then produced. The date on it was completed as:

"I examined you on the following dates ….. 12/12/00…… and advised that you should refrain from work from …. "

The certificate had plainly been overwritten in the sense that the 'from' was followed by '11.2.99' in heavier hand than the rest of the certificate and that needed some explanation. It looked as if it had been overwritten and changed, and, of course, Newham had had no opportunity to look into it because it was produced at the last minute. The Order that I made on that day, 20 February 2001, included this:

"AND UPON the application of the Appellant to adduce fresh evidence in the form of a Medical Certificate IT IS ORDERED that the Appeal be adjourned generally for the following explanations to be given by way of affidavit(s): 1. The Doctor is to indicate whether it is his certificate and in what form it left him 2. If the Doctor's evidence suggests that it did not say as it appears now to say an explanation is required of what alterations have been made, when and by whom and for what purpose 3. Ms McCullum is to explain what, if any, role she has had in relation to the certificate 4. Ms McCullum's instructing solicitors to explain when they first saw the certificate and what steps were taken in relation to it."

Amongst other provisions liberty was given for the Appellant to substantiate her case further by affidavit to be served by 20 March 2001. That is sufficient of the background. I have also had, of course, oral arguments and 2 good comprehensive skeletons from both sides.

[13]Turning more to the foreground, there is good prima facie reason to believe that the Employment Tribunal's decision or assumption that the IT1 was one day late was wrong in law. The letter of 26 October 1998 was expressed as being conditional in its terms and the dismissal itself was, it would seem, inevitably later, possibly as late as 30 November 1998. Thus the Tribunal of 10 December 1999 seemed well founded when it cited, as we earlier said, that it would probably have concluded that it had had jurisdiction to consider Ms McCullum's complaint of unfair dismissal.

[14]Accordingly, it is not difficult to make a case that a review was desirable in the interests of justice; but a willingness to review and the propriety of a review in the interests of justice can of course be displaced by delay, if the delay is unexplained, or insufficiently explained, or if it has prejudiced the other side, here Newham. The particular delay that was held against Ms McCullum by the Employment Tribunal was between 20 May 1999 and 20 August 1999. As to that the Tribunal had said, as we have cited, that it was simply too long and that there was no adequate excuse for it, but they did say that they had found Ms McCullum to be a truthful witness. They said:

"Ms McCullum has given evidence in support of her application and that evidence has not been challenged. We consider that Ms McCullum has given her evidence carefully and accurately and we have no hesitation in accepting the truth of what she says."

The Appellant since then has criticised that decision to some extent by saying in a passage that appears in her present Notice of Appeal that she had given evidence at the Tribunal that during the period 30 June to 20 August the Appellant sought the advice of her children. She further sets out matters which she said that she had given in evidence.

[15]The Employment Tribunal did not mention that. We do not know whether it was that such evidence was not in fact been given or whether that part of her evidence was not believed or was not sufficiently explained. That does not appear. Nor is it known whether, given an opportunity, Newham could explain in more detail the prejudice it might suffer were Ms McCullum's case to go forward. Would Newham be able to show that it would suffer a prejudice that would not have been suffered had the case gone forward in the ordinary way? There are a number of doubts about the earlier history that will never come to be resolved, or, at least will not be at this stage.

[16]One can see that there is a case for re opening the refusal to review on such grounds as I have touched upon but the underlying merits of the matter sought to be appealed play a relatively small part in consideration of whether or not an extension of time should be granted. It would be all too easy to get into a situation in which one virtually had to hear the appeal in order to judge whether the appeal should be heard. Although I bear in mind that this is a case where there is some prospect of success, if the underlying appeal were to go forward, I must bear in mind that that is only a relatively small part of the consideration in front of me and that most of all what is needed is an explanation of the delay between 10 December 1999, when the decision was promulgated, and 19 April 2000 (possibly 18 April) when the Notice of Appeal was received.

[17]Some medical evidence has been put in since the first hearing before me and before today. Dr A K Khatri has for some years been Ms McCullum's General Practitioner. He gives a list of the times she attended upon him over a period and at his paragraph 5 he says:

"I am informed by the Appellant's legal advisers that the court is most interested in the period December 1999 to April 2000. In relation to her appointments between those two dates, I set out the primary complaints dealt with below: [one notices that these are the 'primary' complaints] 15/12/99: coughing 22/12/99, 13/1/00, 25/1/00, 27/1/00, 9/2/00, 29/3/00: skin irritation (dry skin/rash)"

He continues:

"Both of these conditions were in my judgment brought on by the Appellant's depressed and anxious condition. I should say that although the skin irritation was the problem at that time most in need of medical treatment (in relation to which the Appellant attended the skin clinic and hospital at this time) the Appellant exhibited a number of related conditions. She also suffered at this time from headaches, insomnia, stomach acidity, tiredness and aching in the body. The condition taken as a whole had a considerable mental impact upon the Appellant who suffered from an inability to make decisions, forgetfulness and clouded judgment."

He then dealt with the medical certificate about which doubts had been quite properly raised. He produced a copy of the medical certificate. He says that he filled it out for the Appellant during her appointment at the surgery on 12 December 2000. He says:

"I confirm that all the handwriting on the document is my own. In particular, I confirm that the correction of the dates during which the Appellant should refrain from work was also done by me and that those dates are intended to be read as 1 st December 1999 to 30 th April 2000. These dates were inserted by me on the request of the Appellant. Having knowledge of the Appellant's medical history and access to her medical records, I decided that I was prepared to make the certificate in the terms suggested; I do not here repeat the grounds upon which I base my conclusion that the Appellant was suffering from anxiety and depression and that this affected her to the degree required. I failed to date the certificate itself. This was an oversight and I regret any inconvenience that this has caused"

It is notable that the Doctor, on an appointment on 12 December 2000, was prepared to make a certificate that covered the period that had begun more than a year earlier, namely, the period beginning 1 December 1999 to 30 April 2000. It is notable also that the dates had been requested by the Appellant herself. Those are, of course, highly material dates. The very fact that the Appellant was able to propose those dates suggests that she was well able to determine what was material and what was not as at 12 December 2000.

[18]Mr De Silva's argument today has been that, having regard to the medical evidence, there is a sufficient, full and honest explanation of the delay between 10 December 1999 and 19 April 2000, the most material period over which delay has to be examined. Mr De Silva concedes that he cannot say that throughout every minute of every day during that period Ms McCullum was unable to give instructions or understand advice in relation to the preparation or lodging of a Notice of Appeal but he does say that, particularly in relation to the Doctor's mention of an inability to make decisions, forgetfulness and clouded judgment, that here one has a sufficient explanation. He also draws attention to the fact that a distinction between this case and many others is that here there has been no hearing on the merits. Where there has been a hearing on the merits it is not unfair, perhaps, to take a very strict line on time limits for appeals and such an argument appears in Abdelghafar as a distinction from the Costello case referred to in Abdelghafar . Mr De Silva is entitled to say that here there has been no hearing on the merits.

[19]Against that Mr McCarthy raises a number of arguments on the medical evidence that has been produced. They largely turn on what Ms McCullum herself has said in her Notice of Appeal. Her Notice of Appeal at paragraph 6 begins:

"The grounds upon which the Appellant seeks an extension of time are as follows: -"

Miss McCullum sets out a number of things that happened in the material period from December 1999 to April 2000 which, says Mr McCarthy, are inconsistent with a woman who was unable sufficiently to attend to matters to lodge a Notice of Appeal or give instructions that one should be prepared for her and then lodged.

(a) it says:

"The Appellant received the decision of the Employment Tribunal through her then solicitor – Messrs Webster Dixon. The Appellant reviewed the decision dated 10 th December 1999 and felt that the Tribunal had incorrectly stated that the further period of delay between 30 th June – 20 th August was the Appellant's fault."

He draws attention to the fact that she was able herself to review the decision and to come to a conclusion - as indicated by the words 'and felt' - that it was incorrect. Paragraph 6(a) sets out a number of further dealings with Mr Webster, of that firm of solicitors.

[20]Paragraph 6(b) describes Mr Webster advising Ms McCullum in or around January 2000 that there might be grounds of appeal but that he would need to see counsel. At the end of that paragraph it recites that Mr Webster advised the Appellant that:

"…he could seek redress against P.C.D. York & Co for professional negligence and subsequently wrote a letter before action on the 20 th January 2000."

Mr McCarthy says that it is unthinkable that instructions would not have been taken before the writing of a letter before action and that it is therefore inherent in that that Ms McCullum was able to give instructions of that nature.

[21]Then at paragraph 6(d) the Notice of Appeal sets out that throughout late January and February 2000 the Appellant continuously attempted to contact Mr Webster for further advice in relation to her possible claims and that he advised her as is there set out. In paragraph 6(d) also it says: "The Applicant instructed Messrs Webster Dixon to withdraw the IT1." (That is a different IT1, but again it shows an ability to give instructions to solicitors.)

[22]Continuing in the same theme, paragraph 6(e) says:

"The Appellant had instructed Messrs Webster Dixon to make representations to her insurance company – Eagle Star - that she had a potential claim for negligence and/or breach of contract against P.C.D. York & Co."

No date is given for that but on the assumption that the grounds are set out chronologically it would seem to be shortly after February 2000 or thereabouts and therefore falling within the material period needing to be considered and showing her giving instructions to solicitors. Paragraph 6(f) shows that during March 2000 she left continuous 'phone messages for Mr Webster which were not returned, but she is plainly able to turn her mind to contact with her solicitors.

[23]The drift of Mr McCarthy's argument is that here we have a person who is plainly able to consider matters, to instruct solicitors and to act upon advice that solicitors gave. None of this, he says, is consistent with an inability to give instructions or to receive advice. He draws attention to the fact that although we have the Doctor's brief evidence we have no medical notes, or extracts from notes, or even summaries of extracts from notes, from the Doctor. It is a striking feature that nothing more than the rather bland assertions that I have already cited come from the Doctor notwithstanding that special opportunity was given to give evidence in order to come back today with as fully informed a case as possible.

[24]Mr McCarthy draws attention to the fact that time after time Ms McCullum missed time limits: she was late with her IT1 (that was what had seemed to be the case); on her own case she was dismissed on 26 October 1998 and on her own reckoning (it may be that that reckoning was wrong but on her own reckoning) she was a day out of time and so was late with that. She was late with an application for a review, she was late with her appeal to the Employment Appeal Tribunal and she was even late with her appeal against the Registrar's Order. He reminds me of the case in the Court of Appeal of Aziz where it was argued that the Employment Appeal Tribunal was tougher in relation to a strict approach to time than was the Court of Appeal with cases of applications to appeal to the Court of Appeal. However, in that case the tougher line taken by the Employment Appeal Tribunal was upheld and was left beyond criticism, at any rate short of the House of Lords. Mr McCarthy says that the explanation given for delay has not been honest and has not been a full explanation.

[25]I do not need to say that it was not an honest explanation but it is remarkable that the Doctor, although mentioning an inability to make decisions, forgetfulness and clouded judgment, gives no example of an inability to make decisions and, indeed, the Notice of Appeal, as I have cited, shows Ms McCullum making decisions, moreover decisions in relation to legal matters, in the crucial period. He mentions forgetfulness but gives no example of what sort of thing was being forgotten, or when it was being forgotten, or particular pressures that might have led to it. In relation to clouded judgment, again, there are no examples given; there are no dates given, there are no references to medical notes.

[26]Mr De Silva in an ingenious explanation, deals with the considerable number of steps taken by Ms McCullum in the crucial period and which are set out in the Notice of Appeal paragraph 6, parts of which I have cited, by saying that the clouded judgment from which Ms McCullum suffered led her to do all those steps but led her also to fail to do the most material step, which was the lodging of a Notice of Appeal in time in relation to the decision we are concerned about. It would though, as is seems to me, be quite remarkable if Ms McCullum were physically and mentally able to make all the required judgments that are inherent in the steps described in paragraph 6(a) in the Notice of Appeal and yet be unable to draw up a Notice of Appeal, or to appreciate that one had to be drawn up, or to give instructions for the preparation of one and its lodging.

[27]Overall, I cannot accept that here the delay is adequately explained by reference to 'medical condition'. No medical notes were produced, no crucial examples were given of the kind that I have described and ultimately I have to conclude that this is a case in which there has been no full explanation of the delay or at any rate no explanation that can be accepted. A case where the exceptional relief which is represented by an extension of time has not been made out and accordingly the appeal is refused. Sir, I would just like to seek permission to appeal to the Court of Appeal on this. Would you like to give me some reason? Sir, essentially this is a ……………………………..?? [inaudible] more unusual case given that the merits of the claim have not been determined and therefore in those circumstances there are special features of this claim …………………………………..?? [inaudible] No, I refuse leave. Application for Costs by London Borough of Newham Sir, sorry, I would just make one application, and that is that this case was bound to fail from the very beginning and I now seek costs for today's application. To be very brief, there are only two facts that I would like to mention to you very quickly, and those are the ones I have already outlined. Firstly, the facts as mentioned in paragraph 6 of the Notice of Appeal are destructive of the Appellant's case, they show quite clearly that the argument put forward to you today of her inability to give instruction and take advice on the case is just inconsistent with paragraph 6. The second is that medical notes have not been produced or a full explanation by the Doctor, so even before we got here today, I say this case was doomed to fail because no proper explanation or no valid or no full explanation has been provided by the Appellant to show why she has been unable to produce a Notice of Appeal at the relevant time. Sir, as I say, no medical notes were produced, no proper explanation given by the Doctor and accordingly this case, as I say, was doomed to fail for those two reasons. I say Sir, that that is clear and facts are already before you on the Appellant's evidence - we have not produced any evidence – on the Appellant's evidence this case could never have succeeded from the very beginning and that is clear from the evidence that has been produced on the second occasion, the second occasion and the lack of medical notes, the lack of a proper explanation given by the Doctor, and I go fully and wholly to say the lack of honesty by the Appellant in this case as well. Sir, may I first say that this is the first notice we have had of an application for costs ………………………….[inaudible] To the application, I might say this, it has already been recognised that there were inconsistencies between what was stated at paragraph 6 and what was stated in the medical evidence. My submission is that there can't be doubt at this stage that the Applicant does suffer from a medical condition of a mental nature, the Respondent knows it, they dismissed her for it, and gave her early retirement on the basis of it. Even if ……………………[inaudible] your finding Sir, the fact is that matters of stress, anxiety, depression, do affect people's judgment, I recognise in a way here that can give rise to the success of the appeal but it clearly was something that was arguable in this case and actually what one has over this period is who suffers from a condition and is yet to take …………………[inaudible]. Sir, what we have had is evidence from the Applicant and evidence from her physician as well and in my submission Sir, it can't be said at this stage that that evidence was dishonest evidence in some way. I recognise that full particulars were not given but the fact remains there was a genuine view held by the Doctor, and held by the Doctor over the relevant period and therefor in those circumstances what we ask you to do, and which you did, is to determine that that inconsistency between what was said in the appeal notice and what was in the evidence, and that the Tribunal as a Court to do that and the whole …………………………[inaudible] bound to fail. Mr Justice Lindsay Mr McCarthy applies for costs. He seeks to invoke Rule 34 of the Employment Appeal Tribunal Rules which says:

"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 order the party at fault 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."

The proceedings were plainly not unnecessary in the sense that they were the only way in which Ms McCullum could have sought to take matters further. It can not be said that they are improper or vexatious, as it seems to me. I bear in mind, too, the argument that I mentioned, that there was here something to be said in her favour on the underlying merits of the substantive appeal. That was a factor in her favour, and also another factor in her favour was that there had been no true hearing on the merits. I do not feel able to 'shoehorn' her case into any of the descriptions that are given in Rule 34 and accordingly I do not think I have jurisdiction to order costs, but, even if I had, in my discretion I would not make an order for costs.