MR O F AYOVUARE v WALTER LLEWELLYN & SONS LTD [2003] UKEAT 0948_02_1701

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0948_02_1701Case No Appeal No. EAT/0948/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR O F AYOVUAREAPPELLANTWALTER LLEWELLYN & SONS LTDRESPONDENT
Before
Mr Justice Rimer Mr A E R Manners Ms P TatlowDate 17 January 2003
[1]APPEARANCES For the Appellant MR DECLAN O'DEMPSEY (of Counsel) THE HONOURABLE MR JUSTICE RIMER This is the preliminary hearing of an appeal by brought by Mr Omorotu Ayovuare. His notice of appeal is dated 15 August 2002 and is against a costs order made against him by the Employment Tribunal sitting at Stratford, the Chairman being Mr J Cole. The hearing was on 26 July 2002, with the Tribunal's extended reasons being promulgated on 14 August. The Tribunal exercised its jurisdiction under regulation 14 in Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001 to make the costs order and the order it made was that Mr Ayovuare was to pay the sum of £2,500 to the Respondent to the application, Walter Llewellyn & Sons Ltd ("Llewellyn"). The power to order a sum so assessed was conferred on the Tribunal by regulation 14(3)(a).[2]The start of the story is that on 9 July 2001 Mr Ayovuare issued an application making a complaint to the Employment Tribunal that he had been the victim of racial discrimination by Llewellyn, a firm of building contractors, contrary to section 4(1)(c) of the Race Relations Act 1976 . Mr Ayovuare is a quantity surveyor and he had applied and failed to obtain a job as a senior quantity surveyor with Llewellyn. By their form IT3, Llewellyn denied the allegation and explained that Mr Ayovuare had failed in his application for the job for the fundamental reason that he lacked the experience crucial for major multi-million pound projects in the private sector. They set out the experience required for the job and set out why Mr Ayovuare's experience fell short of what was needed.[3]The hearing of Mr Ayovuare's complaint took place on 8 November 2001 before the Employment Tribunal, chaired by Mr Cole, who was sitting with Mrs Cushing and Mr Hughes. By its extended reasons, promulgated on 22 November 2001, the Tribunal explained why it found unanimously that the claim failed and should be dismissed.[4]Following that, Llewellyn applied for an order for costs against Mr Ayovuare. That was the application which was dealt with on 26 July 2002. Mr Ayovuare represented himself, as he had at the prior hearing, and Mr Hunt, the chief executive of Llewellyn, represented the company. The Tribunal on that occasion consisted just of Mr Cole as chairman, sitting with Mr Hughes. In paragraph 4 of the extended reasons, the Tribunal explained that Mrs Cushing was absent but that the matter was being dealt with by the other two members "with the consent of the parties and pursuant to Regulation 9(3) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001."[5]In its extended reasons, the Tribunal then referred to regulation 14 of the first schedule to the 2001 Regulations, which sets out the circumstances in which the Tribunal may exercise a discretion to make an order for costs against a party to proceedings before it, and although it is unnecessary to read much from regulation 14, we will at least read the opening words:
"Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make …. " an order for costs. The Tribunal explained the facts by reference to which they concluded, in paragraph 19 of their reasons, that Mr Ayovuare had acted unreasonably in bringing and prosecuting a claim against Llewellyn. The Tribunal decided that it should make an order for costs and referred to the then recent decision (decided in March 2002) of the Court of Appeal in Kovacs -v- Queen Mary & Westfield College [2002] IRLR 414 , which decided that the means of a potentially paying party to pay any costs so ordered was not a factor which an Employment Tribunal had to have regard to in considering whether to make any, and if so what, order for costs against a party. The Tribunal then assessed the costs at £2,500. We comment that the Tribunal stated that the Kovacs decision was perhaps not quite as unqualified as we have just described it, but that it: "confirmed that it is inappropriate for us to, at the present time, take into account the means or personal circumstances of the paying party, save in the most exceptional circumstances."
We do not ourselves read the Kovacs decision as adding the "exceptional circumstances" qualification to which the Tribunal referred, but as the Tribunal anyway held that there was nothing exceptional about the instant case, the gloss that they had apparently derived from the decision had no relevant impact on their own decision.[6]Mr Ayovuare's notice of appeal can be dealt with briefly because it is expressed in the most terse of terms. The grounds it advances as to why the decision was wrong was that:
"The decision was out of date, erred in law, perverse, unreasonable, flaws and bias"
No further particulars of those allegations are given and the failure to do so renders the notice of appeal a virtually worthless document. For the purposes of this hearing, Mr Ayovuare prepared a skeleton argument by which he sought to add some flesh to the bare bones of his notice of appeal. At the hearing he has, however, been represented by Mr O'Dempsey, who advanced a limited argument in support of the appeal and in support of the proposition that we should direct a full hearing. Mr O'Dempsey specifically did not associate himself with the skeleton argument prepared by Mr Ayovuare and left it to stand for itself, and so we will deal with that skeleton argument now and then revert to the points that Mr O'Dempsey did advance.[7]The first point in the skeleton argument is that the Tribunal "cannot bring any proof" that Mr Ayovuare acted unreasonably in the bringing and prosecution of the application. It is not of course the function of the Tribunal to "bring proof" on any point before it. But this apart, the short answer to that is that the explanation given by the Tribunal in their extended reasons as to why they were satisfied that Mr Ayovuare had acted so unreasonably speak for themselves. They represent and reflect findings of fact by the Tribunal, being facts that the Tribunal was perfectly entitled to find and are such as to show that the costs order it made against Mr Ayovuare was a proper and, on the face of it - subject to the point which Mr O'Dempsey has addressed our attention to - prima facie an unimpeachable exercise of their jurisdiction.[8]The second point that Mr Ayovuare makes is that the Tribunal was wrong to refer to, and apply the approach to the exercise of the Tribunal's costs jurisdiction by reference to, the Kovacs decision. His point is that that decision was only made by the Court of Appeal after the Tribunal had dealt, in November 2001, with his substantive application and so it was wrong of the Tribunal to have had regard to a decision on the applicable law only made later. All that needs to be said about that is that it is, with respect to Mr Ayovuare, nonsense. The law does not stand still and, in particular, its development is not frozen for the purposes of a particular case at the moment the case is started. The Tribunal's duty in July 2002 was to exercise their jurisdiction to award costs in accordance with the law as it then was, and part of that law was the decision in Kovacs . If they had ignored that decision and taken the view that they could and should have had regard to Mr Ayovuare's means before making an order for costs against him, they would have misdirected themselves.[9]The third point that Mr Ayovuare makes is that, as he suggests appears from paragraph 18 of the Tribunal's extended reasons, he was not allowed to present his case and was bullied by the chairman, which breached his human rights. What the Tribunal in fact said in paragraph 18 was as follows:
"We allowed Mr Ayovuare the opportunity to make his own representations. Sadly we needed to limit what he said. He attempted to reopen the background to this case. He said that he had only lost his claim on a "technicality"
. We reminded him that was no part of the finding of this Tribunal. He told us again of his qualifications and said that if he was ordered to pay costs, this would jeopardise his human rights. He said that any order for costs would be a deterrent to him bringing other claims and that his interview by the Respondent was not conducted in good faith. He said that is his case today and he reminded us that he is impecunious and unemployed." That shows that Mr Ayovuare was not prepared to accept the decision of the Tribunal at the substantive hearing, although we are told today that Mr Ayovuare has sought or is seeking, out of time, now to appeal against that decision. It shows that he was seeking to re-open matters which had been at that stage finally decided against him and that he was therefore advancing arguments which were not directly relevant to the relatively short question of whether the Tribunal should make any and what order for costs against him.[10]In those circumstances and as paragraph 18 shows, the Tribunal had to exercise a measure of control over Mr Ayovuare's representations. The Tribunal was fully entitled to do so and in doing so it in no way impaired Mr Ayovuare's human rights. All tribunals and courts have to control the extent to which litigants before them are entitled to occupy the floor, a discipline which most frequently has to be exercised in the case of litigants who are representing themselves and who, because of their inevitable shortcomings as advocates, often devote excessive time to matters of complete irrelevance which simply the waste the time of the tribunal and of the other party, and, in particular, waste the other party's costs. If it were otherwise, proceedings would become unnecessarily protracted and costly and disproportionate to the issues involved. It is apparent from paragraph 18 that the Tribunal regarded Mr Ayovuare as wanting to make representations that were materially wide of the relevant mark and it was properly entitled to exercise a degree of control over the way in which he conducted his case.[11]The fourth point that Mr Ayovuare makes is that the Tribunal failed to take into account his means. That is correct, but the Tribunal was obliged to ignore those means in the light of the decision in the Kovacs case.[12]The fifth point Mr Ayovuare makes is that he says he did not consent to a panel merely of two sitting on the costs application in July 2002. Of course, the contrary is stated in the decision, which he now challenges, but in any event, no point to that effect - which goes to the jurisdiction of the Tribunal - was raised by Mr Ayovuare in his notice of appeal. The Tribunal, as we have said, assert precisely the contrary in their findings and, indeed, go out of their way to demonstrate in them that they were satisfied that they had jurisdiction, and what they say about the matter effectively amounts to a finding of fact that Mr Ayovuare did consent to a two man tribunal. Since Mr Ayovuare did not raise the question of jurisdiction in his notice of appeal, we are not disposed to allow him to raise that point now. Mr Ayovuare also makes, general and unparticularised, allegations of bias, but provides no details of them, and those generalised allegations are really quite worthless and provide no proper justification on the basis on which he should be allowed to take his appeal to a full hearing.[13]That, therefore, disposes of Mr Ayovuare's contribution to the argument and we come now to Mr O'Dempsey's submissions. Mr O'Dempsey has helpfully taken us through the Tribunal's reasoning and the submission which he advances to us can, we think, be summarised as a proposition that, correctly analysed, the Tribunal took account of a factor it should not have taken account of in reaching its decision that Mr Ayovuare had brought and conducted the proceedings unreasonably so as to justify the award of costs which it made.[14]The matters which, as appear from the decision, caused the Tribunal to make the decision it did are set out clearly in their reasons. They first refer, in paragraph 9, to a letter which Llewellyn had written to Mr Ayovuare on 11 July 2001, before the original application was commenced, which was a letter which was expressing some disappointment that Mr Ayovuare should have regarded Llewellyn as having discriminated against him and inviting him towards the end of the letter to provide details as to why he had this perception and adding that this would enable Llewellyn to review its procedures and take appropriate action if required. The Tribunal records that Mr Ayovuare accepted that he received that letter, but did not respond to it in any manner but simply commenced his application.[15]The Tribunal then went on to make findings in paragraph 15 to the effect that they were entirely satisfied that he could not have failed to appreciate that he had insufficient experience for the job for which he was applying and the Tribunal adds:
"Yet that did not deter him from bringing his Application to us"
Effectively, they were saying that the bringing of the application was misconceived and, moreover, was known to be misconceived, which, added to the failure to respond to Llewellyn's letter, together justified a conclusion that the bringing of the claim was an unreasonable one. In paragraph 16, they referred back to their previous decision where they recorded that they had found Mr Ayovuare to have been untruthful with regard to certain evidence he gave. They were therefore not just saying that they had not accepted his evidence at the earlier hearing, but that he had deliberately chosen to mislead the Tribunal. That, coupled with the matters to which we have just referred, on the face of it, undoubtedly justified a conclusion that he had acted unreasonably in bringing and conducting these proceedings.[16]The main point that Mr O'Dempsey relies upon derives from paragraph 19 of the Tribunal's reasons which is one headed "Our conclusions" and we propose to read the whole of that paragraph so that the point can be identified. " As to the merits, we are entirely satisfied that Mr Ayovuare has acted unreasonably in bringing and in prosecuting his claim. As we have observed, we found him to be unreliable by his evidence and prone to exaggeration and unrealistic statements. Whilst he is a very intelligent man as is clear from his evidence before us, he, as we observed previously, does not have the essential qualifications for the work with the Respondent for which he applied. He chose to ignore the invitation from Mr Hunt by his letter of 11 July, he brought his claim and prosecuted it in the way we have described and which we can only regard as an attempt to secure compensation or some monetary payment from the Respondent. We recall that in the course of his evidence previously he told us that one or more of the claims he has brought were settled prior to trial because the Respondent did not wish the trouble or expense of representing itself at a full hearing." Then, perhaps, we should, for completeness, also read paragraphs 21 and 22, which read as follows:
"21 We are quite satisfied he acted unreasonably by their [that is the proceedings] inception and that when he did so he was well aware he was unsuitable and unqualified for the quantity surveying post on the contracting side of industry for which he had applied. 22 We have taken into account his untruthfulness concerning his background. Were we persuaded that he did not understand the time and trouble to which he was putting the Respondent and were we persuaded that he had any real belief in the merits of his claim, then we may have taken another view."
[17]So the thrust of all that is that he was unreasonable in going straight to the Tribunal before responding to the letter from Llewellyn. He brought a claim which, as the Tribunal found, he could not possibly believe had any merit; he conducted the claim, to some extent, untruthfully, in the manner in which he gave his evidence; and, collectively, therefore, he brought the claim in the hope of obtaining a monetary payment from Llewellyn to which he was not entitled.[18]All those considerations plainly justified the Tribunal's conclusion that he brought this claim unreasonably. Mr O'Dempsey's point, however, is that the last sentence in paragraph 19 reading: We recall that in the course of his evidence previously he told us that one or more of the claims he has brought were settled prior to trial because the Respondent did not wish the trouble or expense of representing itself at a full hearing." is a sentence which reflects a taking into account by the Tribunal of a factor which they should not have taken into account at all, and Mr O'Dempsey submits that that taints the whole exercise of their discretion.[19]We have considered that point, but are not satisfied that there is any substance in it. We have, probably at undue length, identified the real heart of the reasons why the Tribunal came to the conclusion that the proceedings were brought and prosecuted unreasonably, and we do not regard that sentence as in fact providing a further factor they were also taking into account. It is, effectively, little more than a recitation of history, reflecting matters which Mr Ayovuare had told the Tribunal about at the prior hearing, but we do not regard it as representing a separate factor to which they were having regard in deciding whether or not the bringing of his claim or its conduct was unreasonable.[20]In our view, the proposition that it is a sentence reflecting a factor which tainted the whole exercise of discretion is to attach to the sentence a weight it simply will not bear. The decision as a whole makes the Tribunal's reasons abundantly clear and, in our view, their reasoning is unimpeachable. We, accordingly, propose to refuse to permit any aspect of Mr Ayovuare's appeal to proceed to a full hearing and we dismiss his appeal. [Discussion][21]Well, if you are not going to expand on it, and I am not surprised you are not going to, then the point, if there is a point at all, is a very short one, and it will come as no surprise to you, Mr O'Dempsey, to hear that we do not give permission ….. and we do not give permission because we take the view that the point does not raise any question of principle which is deserving of consideration by the Court of Appeal. Thank you very much, Mr O'Dempsey.