MRS BRESLIN v SECONDS AHEAD LLP [2005] UKEAT 0876_04_1708

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0876_04_1708Case No Appeal No. UKEAT/0876/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS BRESLINAPPELLANTSECONDS AHEAD LLPRESPONDENT
Before
Mr Justice Rimer Dr K MohantyDate 17 August 2005
[1]APPEARANCES For the Appellant MR ANTHONY WILLIAMS (Representative) For the Respondent Mr Stephen Jackson (Solicitor) Messrs Harding Evans Solicitors Queens Chambers 2 North Street Newport Gwent NP20 1TE Summary Sex Discrimination: Pregnancy Discrimination Practice & Procedure: Bias, Misconduct and Procedural Irregularity Was the bringing and conduct of the appeal misconceived and unreasonable such as to merit the making of an order for costs against the appellant? THE HONOURABLE MR JUSTICE RIMER We heard this appeal on 8 April 2005 and handed down our reserved judgment on 10 May 2005. For the reasons given, we dismissed Mrs Breslin's appeal. On 26 May 2005, Mr Jackson (of Messrs Harding Evans, the respondent's solicitors) wrote to the Registrar of this tribunal asking for an award of costs against Mrs Breslin. The application was made under rule 34(4) of the Employment Appeal Tribunal Rules 1993, as amended. It was said that the bringing and conduct of the appeal were misconceived and unreasonable. The Registrar referred the application to us and we now rule upon it. We will not repeat the history of this matter, which appears from our judgment which we will take as read.[2]We do not propose to make any order for costs against Mrs Breslin. We explain first that Mr Jackson's letter of 26 May ends by saying that it was copied to Mr Anthony Williams, Mrs Breslin's husband who represented her at the appeal. In subsequent, increasingly intemperate, correspondence with this tribunal, Mr Williams denied receiving anything from Mr Jackson on the topic of the application for costs, although he advanced his own representations against the making any costs order in letters of 4 and 15 June 2005. The latter concludes with Mr Williams's statement that, if costs are awarded, "I will immediately have to declare myself bankrupt and the Respondent will receive nothing anyway." That statement appears to ignore the fact that the application for costs is not against Mr Williams, but against Mrs Breslin, the appellant. In the ordinary course, we would not have dealt with this application without first being satisfied that Mr Williams had received a copy of Mr Jackson's letter of 26 May and had had an opportunity to make representations upon it. Having, however, concluded that the respondent anyway fails to make out its case for costs, we considered it unnecessary to put Mr Williams to the trouble of making such representations.[3]Our jurisdiction to make costs orders is provided by rule 34A of the Employment Appeal Tribunal Rules 1993, as amended. That reads, so far as material:
"(1) Where it appears to the Appeal Tribunal that any proceedings brought by the paying party were unnecessary, improper, vexatious or misconceived or that there has been unreasonable delay or other unreasonable conduct in the bringing or conduct of proceedings by the paying party, the Appeal Tribunal may make a costs order against the paying party."
[4]Mrs Breslin's appeal challenged the decision of the employment tribunal on three grounds. First, she alleged bias against the tribunal. Second, she challenged the rejection of her sex discrimination claim. Third, she challenged the rejection of her constructive unfair dismissal claim.[5]The grounds of the present application open with an endorsement by Mr Jackson of an observation said to have been made by me near the commencement of the hearing, one allegedly to the effect that, if the bias complaint were to fail, then so also must the challenges to the employment tribunal's decisions on the sex discrimination and constructive unfair dismissal claims.[6]I do not accept that I said anything to that effect: I have no recollection of doing so and I certainly at no stage intended to convey any such message. I do recall making an observation to the effect that if the bias challenge were to succeed, then the appeal as a whole would succeed and it would be unnecessary to consider separately the challenges to the tribunal's decisions on the sex discrimination and constructive dismissal claims. That is because, once a tribunal has been found to be biased, it is usually unnecessary also to consider the merits of its decisions on the substantive issues: they will be fatally tainted with the bias so found. But I do not believe that I either said or implied the reverse, namely that if the bias challenge failed , so also would the challenges to the decisions on sex discrimination and constructive unfair dismissal. The proposition is a non sequitur, as our judgment shows. Having rejected the ground of appeal based on alleged bias, we proceeded to consider each of the further grounds of challenge to the tribunal's decision on its merits.[7]The next point made by Mr Jackson is that "the central basis" of the bias allegation was the employment tribunal's failure to draw Mrs Breslin's attention to the alleged significance of the non-notification issue. In paragraph 24, we described the point about the question of notification or otherwise as a "distracting irrelevance". We do not agree with Mr Jackson that this was the central basis of the bias allegation, although we do agree that it represented a material element of it. Mr Jackson says we rejected it as being "not only unfounded but … offensive." We did reject it but it was not this point that we described as "unfounded and offensive". That description applied to a different point made by Mr Williams, one we identified in paragraph 24(ii) of our judgment and which was to the effect that the respondent had given perjured evidence that there had been no notification and that the employment tribunal had shown a lack of even-handedness by accepting that evidence and making the findings they had in paragraph 8 of their extended reasons. Mr Jackson referred to our rejection of this point in paragraph 25 of our judgment; and it is correct that we were critical of Mr Williams for advancing this particular assertion.[8]Mr Jackson then drew our attention to other aspects of allegedly unreasonable conduct on the part of the appellant in pursuing the bias allegations. He referred to two particular allegations which, in paragraph 28, we described as "close to incredible", although we stopped short of finding that they were in fact incredible; and to the abandonment of an assertion that Mr Jackson had had a private exchange with the employment tribunal after the end of the hearing.[9]Mr Jackson submits that Mrs Breslin's conduct of the appeal through her husband, Mr Williams, has "at all times been wholly unreasonable and variously absurd, irrational and offensive." He produced copies of items of correspondence preceding the hearing of the appeal, which he says bears the same stamp of unreasonableness. It includes letters of 8 and 22 February and 15 March 2005 from Mr Williams to Mr Jackson, the first written two days before the preliminary hearing of the appeal before this tribunal at which Mrs Breslin was permitted to pursue the bias allegation and to adduce further documentary evidence in support of it. Mr Jackson does not include any reply he may have sent to these letters apart from a brief one to that of 15 March, which (contrary to Mr Williams's express request in his letter of 22 February) he appears to have written to Mr Williams's father rather than to Mr Williams. Mr Williams's letters are written in forthright terms, with the letter of 22 February including allegations of perjury against two of the respondent's witnesses and allegations of professional misconduct against Mr Jackson.[10]As we have said, we do not propose to make any order for costs against Mrs Breslin. The bias allegation was merely one of three grounds of appeal. Mrs Breslin was permitted at the preliminary hearing to pursue all three grounds to a full hearing. The grounds challenging the employment tribunal's decision on sex discrimination and constructive unfair dismissal were properly raised even though in the event we found against Mrs Breslin on both. Whilst we were critical of certain aspects of her bias case, we ultimately rejected this ground of appeal for the reasons explained in paragraph 33 of our reserved judgment: namely, that in the absence of oral evidence from the witnesses we were left simply with conflicting paper accounts as to the conduct of the hearing before the employment tribunal. Because no application was made for cross-examination on the paper evidence, we were not provided with the evidence with which to make a proper assessment of Mrs Breslin's complaints, or therefore to form a view on the merits of the bias complaints.[11]We decline in those circumstances to find that the making and pursuit of the bias allegations was improper, vexatious or misconceived. Nor was it improper, vexatious or misconceived for Mrs Breslin to pursue either of her other two grounds of appeal. Nor are we prepared to find, on the basis of the material Mr Jackson put before us, that Mrs Breslin conducted the appeal as a whole in an improper or vexatious way. We recognise that, with regard to certain aspects of the bias argument, she relied at the hearing upon points about which we were critical and also upon one which was abandoned. But even if these points are to be regarded as having been made improperly (and we see some force in the submission that they were), we are anyway not satisfied that, in the context of the respondent's costs of the appeal as a whole, the proportion of costs referable to them was sufficiently material to merit an exercise by us of our discretion to award costs.[12]We refuse the respondent's application.