MR P R THORPE v EATON ELECTRICAL LIMITED [2004] UKEAT 0497_04_0612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0497_04_0612Case No Appeal No. UKEAT/0497/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P R THORPEAPPELLANTEATON ELECTRICAL LIMITEDRESPONDENT
Before
Mr Justice BurtonDate 6 December 2004
[1]APPEARANCES For the Appellant MR RICHARD THORPE (Appellant in Person) For the Respondent MISS JANE McCAFFERTY (of Counsel) Instructed by: EER Legal Services Broadway House Tothill Street London SW1H 9NQ SUMMARY Unfair Dismissal No basis in law to challenge Employment Tribunal's finding that the Respondent did not repudiate the contract and was only offering variation, without denying the Appellant's bonus entitlement. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the appeal by Mr Thorpe, the Applicant, against the unanimous Decision of the Employment Tribunal at Stratford, dismissing his claim for unfair dismissal by the Respondent, Eaton Electrical Ltd, the written Reasons being sent to the parties on 6 May 2004. Mr Thorpe has appealed before us, and although he originally had Counsel assigned to him with the benefit of public funding, he has now, that Counsel having withdrawn, continued with the appeal on his own and has done so both with ability and courtesy.[2]Mr Thorpe was represented below by different Counsel, and the Tribunal record the basis of the case that he put forward that his resignation by letter dated 5 November 2003 amounted to a constructive dismissal. He recognises that in order to succeed in a case for constructive dismissal he must show what is usually and loosely called a fundamental breach of contract by the Respondent. The Tribunal found that there was no such fundamental breach, nor indeed any breach at all, and he challenges that finding. He recognises also that in order for him to be able to succeed on appeal to this Appeal Tribunal he must establish an error of law by the Employment Tribunal. He suggests no basis for attack on the Tribunal by reference to any failure to comply with any statutory requirement. or any failure to interpret, or construe statutory provisions correctly or to apply a wrong approach in law. His appeal is and must be based on perversity. Perversity is very difficult to establish at the best of times, and certainly so since the recent reiteration by the Court of Appeal of the narrow ambit of perversity in Yeboah v Crofton [2002] IRLR 634 . Effectively the Appellant has to show an overwhelming case that no reasonable tribunal could have reached the decision that it did, and, in practical terms, what this means, particularly where as here we have (by Order of the Employment Appeal Tribunal sought by the Appellant) Chairman's notes of evidence in limited form relating to the relevant evidence, the case must be that there was no evidence upon which the Tribunal could reach the Decision it did.[3]The Tribunal records that the case for the Applicant altered somewhat in its presentation before the Tribunal in a material respect. At paragraph 4 the Tribunal records as follows:
"The crux of the Applicant's case (as set out in his application) was that he was contractually entitled to a review of the structure of his bonus after he had been in the job for 3 months and a salary review after 6 months. His case was that he had never had a "bonus structure" review, or salary review, and the failure to conduct these reviews was a fundamental breach which entitled him to terminate the contract without notice by reason of his employer's conduct"
The Tribunal continues:
"The obvious difficulty in this case was that he was engaged in March 2002, and if he was right about the contract terms, the bonus review was due in about June 2002, and the salary review in about September 2002. If those reviews had not taken place in accordance with the contract, and the Applicant had remained in post until November 2003 the following year when he gave notice to leave, how could he show that he had resigned in response to the breach and not delayed too long in doing so?"
[4]The Tribunal records, in paragraph 5, the main case that was put before the Tribunal, which hung on a conversation which he had with Mr Ken Guy, his manager, on 29 October 2003. The Tribunal refers to that case in this way in paragraph 5:
"In order to cure this deficiency (or at least, weakness) in his case, and for the first time, in his witness statement served at or shortly before the Tribunal hearing, the Applicant advanced a new case."
In fact the new case was recorded in a separate document which was served on the Respondent in March 2004, recording the content, on the Applicant's case, of the conversation of 29 October 2003, to which we will return. The Tribunal continued as follows:
"At the end of a very long witness statement the Applicant explained that he had resigned because his manager Ken Guy had told him that a new salary package was offered only on the basis that he did not have a bonus scheme. The allegation was that Mr Guy had bluntly denied the Applicant's contractual right to a bonus. If correct this allegation was a basis for justifying the resignation in terms of the Respondent's repudiatory breach of contract. The Applicant gave notice to leave very shortly after the alleged conversation with Mr Guy."
[5]We turn to a brief history, in so far as material, of the contractual position. The Tribunal referred to the Applicant's contract of employment, which was dated 28 February 2002. It records, in paragraph 2, the following:
"Your salary will be at a rate of £21,000 pa + £5,000 pa London Weighting Allowance + bonus (see attached bonus plan)… This salary will be reviewed based upon performance after completion of 6 months."
[6]The bonus plan, which was attached to the contract of employment, was headed up "BONUS SCHEME FOR QUOTATIONS ENGINEER, SOUTH EAST REGION", which is what the Applicant was and was appointed as. No year is recorded in the document. It gives an outline of the scheme, beginning:
"The bonus scheme will operate over the period 1 st January to 31 st December. The Bonus scheme is an annual scheme with payment being made on a quarterly basis."
Provided in the outline of the scheme are the following words:
"The General Manager reserves the right to modify or discontinue this plan at any time. This bonus scheme will be reviewed in 3 months to ensure it is running effectively."
[7]Provision was made as to how the bonus was arrived at, namely being based on sales, as adjusted for additions, cancellations or credit; and it was loosely described in the document, under the heading "General Conditions" as being "on the basis of sales received versus budget". The payment structure provided that if regional target was achieved as to 100%, a bonus would be payable of 2% of salary, and if higher than 100% was achieved, a sliding scale of bonus, up to 40 % bonus if the regional target was achieved by 115%. It follows that if target was not achieved then no bonus would be payable.[8]All businesses, in our experience, have a target and it seems, not surprisingly, that this company was no exception. But the Applicant was not himself part of the sales team and would therefore not have been personally responsible for the achievement of that target or otherwise. It was simply that his bonus depended upon it.[9]The Tribunal makes findings in relation to the original case put forward by the Applicant, to which we have referred, as to an allegedly repudiatory failure by the Respondent to review. In paragraph 14 it refers to a meeting in September 2002, which it concludes, in paragraph 15, was a salary review; and included in paragraph 15 is a finding by the Tribunal that the relevant manager, Mr Guest, decided neither to increase the Applicant's salary, nor to change the bonus structure. The Tribunal continues at paragraph16:
"There is less certainty that there was a bonus review at this meeting although… we have found as a fact that Mr Guest decided not to alter the scheme that applied to Mr Thorpe."
In the Tribunal's judgment, in paragraph 17:
"…the bonus scheme applicable to Mr Thorpe may not have been reviewed at this meeting."
The Tribunal continued:
"18. however, it is clear (and we find as a fact) that the conclusion of the meeting was passed on to Mr Thorpe by Sally Derrington. The manuscript note records that she was to action the salary review and Mr Guest explained (and Mr Hayes and Ms Derrington confirmed) that the decision not to increase the salary was to be communicated to Mr Thorpe…. 19. Thus, by the end of September 2002 there had been a salary review in accordance with the contract which had not resulted in any increase, and whether or not the consideration of the bonus scheme amounted to a "review" it was abundantly clear to the Applicant by the end of September 2002 that the bonus scheme applicable to him had not been altered within 3 months of his joining the Respondent. The Applicant received no bonus for the year 2002 because the existing bonus scheme did not result in payment of any bonus."
[10]The Tribunal's conclusion at paragraph 20 is accordingly as follows:
"Thus, there is no basis (in our [judgment] ) for the Applicant's original case to have resigned in November 2003 in the light of the Respondent's contractual failures to review his salary and the structure of his bonus scheme. The delay between knowledge of breach (ie no salary and or no bonus scheme review if the meeting of September 2002 was not a review) and his decision to leave the company was far too long to support a complaint of constructive dismissal."
There is no appeal against that finding.[11]The Tribunal then turns to address what it calls the revised case, arising out of the telephone conversation of 29 October 2003. So far as that is concerned, the Applicant's evidence, contained in his Witness Statement, was as follows:
"Ken stated that he was offering me a Salary Increase of £3,500 per annum. [This was, it is common ground, a substantial increase, approximating to some 12.5%] I was keen however to know what he had done about the bonus scheme. He said there was no bonus scheme at all attached to this offer; neither was he willing to entertain the idea of backdating the salary review as the review was initially scheduled to take place September 2002. In his words, "either you accept this, or you and I are going our separate ways, boy." "
And then in bold in his statement the Applicant said as follows:
"Therefore my acceptance of the salary rise was conditional to the withdrawal of my right to a bonus scheme, AND any right to a claim for backdated money, either resulting from the lateness of the salary review or the bonus scheme review which although scheduled for June 2002 had still never been completed. It's impossible for me to described to you after all the hard work; and all I'd gone through the disappointment I felt as a result of this conversation. It was not just the terms of the offer he was making, nut the tone of the conversation. Once again in Ken['s] words, "either you accept this, or you and I are going our separate ways, boy.""
[12]The document to which we referred earlier, sent in March 2004 slightly prior, as we understand, to the Witness Statement, was purportedly a verbatim note of the best recollection that the Applicant had of that conversation; and the note includes the following:
" The following is a brief excerpt from the conversation, and although not perhaps 'word perfect', [t] he Applicant would swear in a court of Law that it is a highly accurate account of what was said:- Quote from Ken Guy "
What!! I'm sorry Peter I'm not interested in anything else. I've managed to get you a pay rise!" Quote from The Applicant "Yes, but with all respect it should have been looked at in September 2002!" Quote from Ken Guy "I'm not interested in backdating the pay" Quote from The Applicant "Well, have you had any more thoughts on the bonus scheme structure?" Quote from Ken Guy "No. There's no bonus scheme attached to this offer, and I'm not interested in backdating the pay. You either accept this or you and I are going to go our separate ways, boy!""[13]The letter that had just been sent to the Applicant prior to that conversation, dated 21 October 2003, which was for his acceptance (because there is a note in the bottom part of the letter "I acknowledge and accept the offer noted above") but which was, in the event, never signed by him, read as follows, from the Human Resources Manager:
"Dear Peter I am pleased to confirm in writing the details of your salary increase. Effective date: 01 November 2003 Revised Salary: £30,000 Please note that all other Terms and Conditions remain the same. As formal acceptance of this change, would you please sign at the foot of this letter and return it to… Human Resources Department…."
[14]The evidence that was put in Mr Guy's Witness Statement in relation to this conversation of 29 October was as follows, commenting on the note to which we have referred:
"I do not recall the exact words used. I thought I was giving Peter good news as 12.8% was an exceptional award. I am not aware of any 'loss' Peter has endured as, as explained, a 'review' does not mean a pay rise. I would have confirmed that there would be no backdating to pay and that there would be (at this stage), no offer of involvement in the 2004 bonus structure. To the best of my knowledge I have never used the word 'boy' in the fashion described. I would not say 'either accept or go our separate ways' as has been alleged."
[15]The Chairman's notes of evidence, to which we referred, confirm that the Applicant was cross-examined by Mr Forest, appearing for the Respondent; he represented the Respondent below, today they have been represented by Miss McCafferty. The cross-examination included a cross-examination of the Applicant to the intent:
"Q. There is no reference to Ken Guy's ultimatum in your resignation or the originating application"
We shall refer later to the resignation letter. The answer was "No". And then the next question:
"Q. The letter at PA/52 [which is a reference to the letter of 21 October 2003, which we have just read] does not say "no entitlement to bonus", it says "
Please note all terms and conditions remain the same. A. I thought it was important that the reviews hadn't taken place. It was all so delayed. Then Ken Guy came in and said I didn't have a bonus scheme………… Q. …You've made up Mr Guy's ultimatum. A. No I have not." And there was further, similar cross-examination.[16]When Mr Guy gave evidence, according the Chairman's note, he denied giving the ultimatum in chief, and he was then cross-examined by Miss Hirst on the Applicant's behalf. The Chairman's notes are as follows:
"The bonus scheme was intact. We had a telephone conversation. I didn't use the words attributed to me. I think he heard or recorded as heard the words he wanted to hear…[I] never said what would you take to get rid of the bonus plan. [I was] not authorised to remove the bonus by cutting a deal."
And then he referred to e-mail correspondence which occurred subsequent to the resignation, to which we will return, when he said:
"I was referring to the future bonus – the one the Applicant said he knew about before me. The Applicant was entitled to bonuses – the 2004 [scheme] was a new regime…."
[17]Those were the rival accounts of the telephone conversation on 29 October 2003, and we shall set out in a moment the finding that the Tribunal made in that regard. But we should conclude the review of the evidence by quoting from the relevant contemporaneous documents.[18]The Applicant resigned by letter dated 5 November 2003, and the relevant part of his letter reads as follows:
"It is with some regret and disappointment that I hereby give notice for termination of my employment with Eaton MEM. After constant reminders, my salary review has just been completed some fourteen months late (originally scheduled for September 2002), and the review of the related bonus scheme originally scheduled for June 2002 has not only never materialised but, as I was recently told, is unlikely to be considered at all; as too the company car, mobile telephone and expense account; these ancillary items, although they were not put in writing, I was reliably assured would be seriously considered, as they are arguably necessary tools for the job."
He then dealt with the fact that his performance had been more than satisfactory, and to "the company's seemingly indifferent attitude to addressing [various] issues", and he concluded:
"The recent offer that was made of an increase to my basic salary, whilst appreciated, is simply too little, too late which, considering the success of the present South East sales/estimating arrangement, is a real pity, and from a personal perspective I was hoping that my resignation was not going to be necessary."
[19]Miss McCafferty, before us today, emphasises the absence from that letter of any suggestion that there had been a "blunt denial", as the Tribunal described it, of any contractual entitlement to bonus in the conversation of 29 October 2003. This is not simply, she submits, the omission by an unrepresented litigant from a letter of resignation of the best way of putting his case, but is an important factual matter, namely that at a time very shortly after the telephone conversation, he did not record what he now says to have been the important nub of it, namely the alleged ultimatum.[20]It is apparent that there was subsequent communication between the parties, which it is to be very much regretted did not lead to resolution, not least because, as the Tribunal itself records in paragraph 24 of its Decision, the Applicant was plainly a valuable employee whom the Respondent did not want to lose.[21]In an e-mail, dated 22 December 2003, the Applicant wrote:
"With regards to our telecom this afternoon, thanks for the opportunity to discuss my present situation/resignation. I believe we are 95% in agreement with most issues."
And then he referred to various problems, such as the backdated pay, and various allowances; and he continued:
"It was appreciated also that you will 'look into' the other issue that I have made (regarding bonus), although I realise that no promises can be made at this time."
[22]The response by Mr Guy, on behalf of the Respondent, in an e-mail dated 22 December 2003, ie three quarters of an hour later, was:
" Thank you for your e-mail, but so as not to be mis-quoted the back-pay will not be revisted. The bonus was never formally confirmed and at present is not included in the re-statement of your employment, if you still wish to proceed."
[23]The response by the Applicant to that is, not surprisingly, on 23 December, the following morning:
"…I was sure you said you would speak to HR after Christmas to see about my request to have the pay rise back dated. It seems I should get my hearing checked. As for the bonus scheme, well you are wholly incorrect. It was a formal part of my initial agreement (as Sally Derington and Leo Hayes would confirm if asked), and the company has a legal obligation to acknowledge and honour this agreement."
And he recorded that he found the whole situation intimidating and petty.[24]The response to that e-mail, within an hour and a half, from Mr Guy was:
"In response to your e-mail I have established the following:- You will now be included in the South East Region bonus scheme for 2004, details of which will be circulated in January 2004." to which the response by the Applicant was: "
This I presume means that my present bonus scheme would be replaced in favour of the South East Region bonus scheme for 2004. I would of course be interested to see the outline for that scheme, but on the face of it, and bearing in mind that we're all working to the same objectives, this sounds OK to me." And he then dealt with his anticipated entitlement in respect of the 2003 bonus scheme.[25]The final e-mail is dated 23 December 2003, and was sent by the Applicant to the Chief Executive, Ms Kennedy, saying:
"I would like to make an official complaint and would ask for the opportunity to sit and discuss… the following contractual issues; Regarding salary review – 14 months late (originally scheduled for Sept. 2002). disputed bonus scheme and overdue bonus scheme review (originally scheduled for June 2002). These issues are in connection with my recent letter of resignation…"
[26]It seems, although no evidence was recorded by the Tribunal or is known to us, that the two parties did not manage to reach a meeting of minds. The resignation stood, and consequently, by virtue of the terms of the bonus scheme, to which we have referred, the Applicant was no longer entitled to participate in the 2003 bonus scheme, which specifically included, as per the document attached to his contract of employment, the term:
"Participants who resign, or are dismissed, during the course of a bonus year will be ineligible for bonus payment."
A letter of 6 February 2004, which was perhaps infelicitously phrased, was thus sent by the Respondent indicating that he had no entitlement to 2003 bonus. We do not know how much his entitlement would have been but for his resignation; but, as we have indicated, the Tribunal understood and recorded that, at least so far as the operation of that scheme in 2002 is concerned, he received nothing. We have no idea what he would have received under the 2003 bonus scheme, but it would plainly have not have been as much as the Applicant would have liked, properly to reflect what he considered was his contribution to the success of the Respondent, if he was not going to be included in whatever the new 2004 scheme was going to consist of.[27]The Tribunal's conclusion as to what occurred on 29 October, and as to whether there was what the Tribunal characterised the Applicant as saying, namely a "blunt denial" of his contractual right to a bonus, is contained in paragraphs 21 and 22 of the Decision, which follow on immediately after its rejection, unappealed, of his argument on his delay case in relation to the review; and it reads as follows:
"21. As to the revised case documented in the Applicant's witness statement, we prefer the evidence of Mr Ken Guy and Ms Derrington on this issue, for the following reasons. [It does not appear, in fact, that Ms Derrington had any relevant evidence to give on this topic]. A further salary review in the early autumn of 2003 achieved an inflation busting increase of over 12% for Mr Thorpe. Mr Ken Guy the new commercial manager had fought hard to get the sort of salary which he hoped would keep the Applicant at the company. On 21 October 2003 the Human Resources Manager wrote to Mr Thorpe to inform him that his revised salary (effective 1 November 2003) would be £30,000 a year and "
Please note that all other Terms and Conditions remain the same". ie, there was to be no change to the bonus scheme. 22. In a telephone conversation at or about the same time the Applicant contended that Mr Guy had told him that his new salary was on the basis that he did not have a bonus scheme. There was no reason why Mr Guy should have said that in contradiction of the facts as understood by him, recorded in the written contract, and summarised in the notice of increase of salary sent by Human Resources to Mr Thorpe. We reject the contention that the Applicant resigned because the Respondent threatened to take away his right to a bonus. 23. In conclusion the Applicant has not shown that he resigned as a result of a breach of contract by the Respondent. Accordingly the claim fails."[28]The Respondent seeks to justify the finding by the Tribunal by setting out "additional reasons" (as they are described in the Respondent's answer), the material part of which is as follows:
"4. Paragraph 24 of Mr Guy's witness statement [which we have quoted above] is his response to the Appellant's allegation that he had said "
There's no bonus scheme attached to this offer"…. Mr Guy's evidence, read in conjunction with this letter, was that when offering a proposed variation to the Appellant's contract to increase his remuneration, he offered an exceptional 12.8% salary increase but that "at this stage" there was "no offer of involvement in the 2004 bonus structure". All the evidence before the Tribunal was that Mr Guy was not denying that the Applicant had an existing contractual entitlement to a bonus in his current terms and conditions but rather that the terms of the offer that Mr Guy was putting to him would not at that stage include a bonus for the following year, 2004."[29]The reference to a proposed variation, Miss McCafferty has explained to us, is not to any suggestion made by the Respondent at the Tribunal or before us that there was a variation by reference to salary plus or minus bonus, but was simply the proposed variation, as indeed there is set out, in relation to the remuneration increase, which was indeed still, at the stage of the telephone conversation, only a proposal, because it had been set out as an offer in the letter of 21 October 2003, to which we have referred.[30]The Applicant, reacting, not surprisingly, to that paragraph of the Respondent's answer, had sought to put in before this Appeal Tribunal documents which were not in evidence below, but which, in the event, Miss McCafferty did not object to having admitted before us, showing that in fact in the November payslip that sum of increased salary was indeed paid; and he put that forward in an attempt to bolster his case that there was, on his case, a proposed variation of increased salary, but no bonus entitlement. Particularly when the matter is explained, as Miss McCafferty has done, by reference to what she meant by "proposed variation", any materiality to the fresh evidence disappears, because it is clear that on either basis what the Respondent in fact did was to pay the increased salary, pursuant to the proposed salary increase. Whether that salary increase was, on the face of the conversation of 29 October 2003, accompanied by an ultimatum that it would not be accompanied by any continuing entitlement to bonus, and that if the Applicant did not like it he could go his own separate way, was a matter which the Tribunal had to resolve.[31]The Tribunal resolved it in the way that we have indicated. It seems clear to us that the Tribunal could, perhaps, have been more fulsome in its giving of Reasons. We sympathise with the Applicant's suggestion that it was, as far as he is concerned, not enough that the Tribunal should simply refer to the letter of 21 October 2003, sent shortly before, because, on his case, what occurred on 29 October 2003 was an overtaking of that letter, which may have said, as it did, "Please note that all other Terms and Conditions remain the same", but on his case that was not what Mr Guy was saying in the conversation on 29 October.[32]He also has sought, in his helpful submissions before us, to emphasise that, so far as he was concerned, the 2002 bonus scheme, at any rate, resulted in no sum being paid to him, and that, so far as he was concerned, if it had simply been a matter of continuing to be entitled to the old scheme, that would not have satisfied him.[33]The problem, so far as that is concerned, is twofold:(i) It is quite plain that the Tribunal well understood that that was the result of remaining with the old scheme, because it has so recorded in paragraph 19 of the Decision.(ii) A refusal by the Respondent to do anything other than continue with the old scheme, profitless as it might be for him, would not be sufficient for him to succeed in the way that his case was put before the Tribunal. At best it would be part and parcel of his complaint that the Respondent had repudiatorily failed adequately to deal with the question of a review; a case that was rejected by the Tribunal and has no been appealed before us, and, in any event, which might have been met (although the point was not specifically argued on this basis, as Miss McCafferty has submitted to us) by reference to the managerial discretion to withdraw the bonus scheme, at any rate non-capriciously, at any time.[34]So it is not enough for the Applicant to put before us a case that, in some way, the Respondent's behaviour would be repudiatory if there was a refusal to improve his present bonus entitlement; what he needed to do before the Tribunal was to establish his case, which he made by reference to the note of his intended evidence (to which we have referred), that there was an ultimatum by Mr Guy that he was to have an increased salary and no bonus scheme. That is what the Tribunal referred to as the revised case, and that is what it rejects in paragraphs 21 and 22.[35]We are entirely clear that the Tribunal cannot be characterised as "perverse" in having reached that Decision. Apart from the point that was specifically mentioned by the Tribunal, namely the letter of 21 October 2003, which is plainly inconsistent with what Mr Guy is said to have said on 29 October, there was other evidence which was before the Tribunal, and which it plainly must have had in mind and could have mentioned in terms in paragraphs 21 and 22, but which it had already mentioned earlier in its Decision:(i) The letter of resignation made no reference whatever to this "blunt denial"; it is, if anything, inconsistent with such suggestion.(ii) The evidence of Mt Guy, which the Tribunal, in paragraph 21, said that it preferred, was clear, at any rate in his oral evidence before it, that what he was saying was that, although it was unclear as to whether he would be included in a new 2004 bonus structure, and indeed implicitly that there would be no bespoke 2004 bonus structure particularly geared towards him, he was not saying that the Applicant would cease to have any continuing bonus entitlement by reference to the plan based on achievement of budget, attached to his contract of employment.(iii) The exchange of e-mails is entirely inconsistent with there having been a "blunt denial" of any continuing contractual entitlement to a bonus. We do not need to repeat the contents of those e-mails; they speak for themselves.[36]In those circumstances there was plainly ample evidence before the Tribunal on which it could reject the case made by the Applicant that in the conversation on 29 October there was either an ultimatum, such as he alleged, by Mr Guy, or indeed any statement, that he no longer had any contractual entitlement to bonus, as opposed to an acceptance of the Respondent's case, that what was being said was that, at that stage, he was not being planned to be included in the new bonus scheme for 2004, without saying that he would have no continuing entitlement under the existing scheme, profitless as that might in fact have been to him.[37]This case therefore has no element of perversity that can be relied upon so far as the Tribunal's Decision is concerned, and the appeal must be dismissed. Costs[38]We have thought very carefully about this application and we have concluded that we shall not grant costs to the Respondent.[39]We do think that it is important for litigants to appreciate that, however late they come to the conclusion, or are advised, that their case has no realistic prospect of success, they should still abandon it and not regard it as a free opportunity to come to court simply because the case is listed; because that leads to expense, both inconvenience for the courts, who can deal with other peoples' cases, and, in particular in this case, expense for the Respondent; and we also feel that Mr Thorpe should not feel that he has, in fact, any prospect of, for example, taking the matter further to the Court of Appeal, if he had that in mind. We think that this is a case which ought to end here, and he ought to put all this behind him.[40]But that said, we think that there are two matters which weigh with us in having just decided that this is not a case which had no realistic prospect of success. The first is that, in fact, we did call on the Respondent, albeit only briefly, and the best test in our judgment as to whether case really has no realistic prospect of success is whether a case is so poor that it does not even get the other side up on their feet. But secondly, and more significant, there was at least a question mark raised in the Applicant's mind, and to an extent in our mind, by the use of the words "proposed variation" in paragraph 4 of the Respondent's answer, which led him to believe that he might have some chance if he only showed that it was not a proposed variation but an actual imposed variation which occurred, by reference to the payslips, which he has now produced. That is what caused us, ourselves, to ask for Miss McCafferty's help. That slight ambiguity, which might have caused him to feel that he had some prospect of success, has now completely been resolved, and there is no further doubt about this case at all; but the existence of that potential doubt was what, in our minds, just allowed him to come to court this morning and argue the matter. It does not mean that there is any lingering doubt in this case, because there is not.