MR M KHAN v KIRKLEES METROPOLITAN COUNCIL [2007] UKEAT 0383_06_1903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0383_06_1903Case No Appeal No. UKEAT/0383/06/DA UKEAT/0578/06/DA UKEAT/0579/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M KHANAPPELLANTKIRKLEES METROPOLITAN COUNCILRESPONDENT
Before
His Honour Judge Ansell Dr B V FitzgeraldDate 19 March 2007
[1]APPEARANCES For the Appellant MR E BROWN (of Counsel) appearing under Bar Pro Bono Instructed by: Bury Metro Racial Equality Council Oddfellows House 94 Manchester Road Bury BL9 0TH For the Respondents MR M GARGAN (of Counsel) Instructed by: Kirklees Metropolitan Council Legal Service PO Box 1274 Huddersfield West Yorkshire HD1 2WZ SUMMARY Practice and Procedure – Striking out/dismissal; Bias, misconduct and procedural irregularity Striking out after 50 days of hearing spread over three years. The Appellant deliberately refused to attend hearings, requesting a fresh Tribunal hear his case. Tribunal correct to strike out claim. Appellant had conducted a lengthy campaign to force the Tribunal Chairman to recuse himself, culminating in naming him in Tribunal proceedings against a school of which the Tribunal Chairman was Chairman of Governors. No apparent bias, and the Tribunal were correct to continue. No bias even though Appellant had named Tribunal Chairman in tribunal proceedings. Order for costs was not a nullity because Tribunal mistakenly awarded costs under the 2004 Rules instead of 2001 Rules. The relevant provision contained the same wording. HIS HONOUR JUDGE ANSELL This has been the hearing of three conjoined appeals against a strike-out order of 6 April 2006 (Appeal 0569), a Costs Order of 22 December 2005 (Appeal No. 0096) relating to an assessed sum of £3,000 in respect of wasted costs incurred by the Respondents in preparing for and attending the hearings 7 and 14 December 2005, and a final Costs order of 31 July 2006 (Appeal No. 1145/06) ordering the Appellant to pay 80% of the Respondents' costs of the proceedings, estimated to be a net sum of around £100,000.[2]We will deal with the strike-out appeal first, although the background history of the litigation is clearly relevant to the two other appeals. By way of introduction, we note that the Appellant filed his IT1 on 19 October 2001 and his claim was struck out after 49 hearing days on 2 April 2006, some four-and-a-half years later. How did matters reach that appalling state of affairs?[3]The claim related to alleged race and disability discrimination in relation to a series of acts said to have occurred during the Appellant's time as a teacher at Newsome High School, Huddersfield, under the authority of the Respondent Local Authority, Kirklees Metropolitan Council, between September 1993 and September 2001, culminating in a speech by another member of staff, Mr Bowman at the Appellant's farewell, which was said to be insulting in relation to both the Appellant's disability and religion. Other Respondents were the head teacher, Mr Gerald Hull, Ms Janice Whelan, an education officer, and Mr Geoffrey Berry, a personnel officer.[4]The Appellant had a disability (ulcerative colitis) which the Respondents recognised would be likely to be aggravated by stress. At a preliminary hearing on 5 November 2002, the Appellant was held to be a disabled person for the purposes of the Disability Discrimination Act 1995 and the matter was listed for a full hearing for five consecutive days commencing on 14 July 2003.[5]At the outset of the hearing, the Tribunal accepted that, by reason of his medical condition, the Appellant would need frequent breaks in the proceedings and it quickly became clear that there was no likelihood of the hearing being concluded in the five day period originally allocated. It was also agreed that the case would be relisted in blocks of no more than three or four consecutive days without a break because of the Appellant's assertion that the level of stress associated with his medical condition would be excessive if the matter were listed for longer consecutive periods.[6]The Tribunal also accepted that the Appellant's wife, Mrs Plumb, acted as his assistant and supporter. Until this appeal hearing, the Appellant had represented himself throughout. During 2003 and early 2004, the Tribunal were prepared to adjourn the proceedings so that Mrs Plumb could attend and assist her husband although the Tribunal never accepted that she played any role as a carer. The matter was then relisted in various blocks of days until August 2004 and the Tribunal had been occupied for a total of 38 days up to the final sitting in that month. The Tribunal recorded that the hearing was dogged by an unusual number of misfortunes, which explained the extraordinary period over which it had been listed. Various listed hearings had to be postponed for reasons connected with illness or other medical problems on the part of the Chairman, a lay member, the Claimant and the Claimant's wife.[7]The manner in which the hearing dates were split up to assist the Appellant had led to inevitable delay and the Tribunal also recorded that the Appellant was significantly late on 24 of the 46 days on which he attended the hearing, thereby resulting in 11 hours of hearing time being lost. The Appellant requested an average of six short breaks each day, ostensibly to use the toilet, and the Tribunal found that, even making allowance for the fact that he was representing himself in a case of some complexity, he had conducted his case in a manner which had greatly prolonged the hearing. The Tribunal recorded that Mr Khan had cross-examined witnesses at inordinate length and refused to accept any guidance or direction from the Chairman, asserting that it was for him, not the Chairman, to determine the relevance of evidence and that any attempt by the Chairman to guide or direct him in the presentation of his case demonstrated bias on the part of the Chairman or the Tribunal in favour of the Respondents. In the course of the hearing it is recorded that he raised some 80 objections to the manner in which the Tribunal was conducting the case together with more than 120 repetitious written objections or complaints as the hearing proceeded.[8]In one of the costs decisions, the Tribunal said this about the Appellant:
"Mr Khan is by some distance the most obdurate, recalcitrant and openly contemptuous party that any of us have ever had to deal with. His stubborn refusal to accept any guidance or direction from the Tribunal and his repeated complaints and accusations of bias against the Tribunal were the cause of a substantial waste of Tribunal time from more or less the outset of the hearing and every effort of the Chairman to bring some objectivity and proportionality to the Claimant's presentation of his case, was rebuffed by the Claimant, usually with an accusation of bias or some other complaint in relation to the conduct of the Chairman of his lay colleagues, which then occupied even more time within the hearing."
[9]On 27 August 2004 the Claimant had envisaged that he might have to conduct the next hearing dates without the assistance of his wife and although he was concerned about it, he said that he would "give it a go." In any event that hearing had to be postponed.[10]On 15 July 2004 the Tribunal had listed eight additional days in September, October and November of that year, but all those dates had to be postponed by reason of the illness of either the Claimant or the Chairman, and in any event it did not prove possible to reconvene the Tribunal and the parties until 3 August 2005. The Tribunal then completed a further eight hearing days between that date and 31 August 2005. At the hearing on 5 August 2005, it was agreed that yet a further six days of hearing time would be required to complete the hearing in addition to the five further days already listed later in the month of August. Much of August was taken up with strike-out applications made by both parties, both of which were unsuccessful, to which we shall make reference below.[11]At this time, the Tribunal was very concerned that two years had elapsed since the hearing had begun and in their decision they noted that because of the unusual nature of the case and the length of hearing they had concluded unanimously that a fair trial of the issues was still possible provided that the evidence was brought to a conclusion as soon as reasonably possible. The Tribunal was therefore anxious that the remaining days should be listed at the earliest possible opportunity.[12]Thereafter, there was a detailed discussion as to when the additional days could be relisted in which the Appellant was principally concerned to avoid any professional inconvenience to his wife, who was a teacher, and the Tribunal sought to list the matter on days which were convenient to the parties so far as possible but which did not permit undue delay. The outcome was that the Appellant's wife stated that the most convenient day of the week for her to attend hearings in the coming academic year was Thursday. The blocks of days involving Tuesday, Wednesday and Thursday would be more convenient to her than either Mondays or Fridays. The Claimant's wife also indicated that her availability might depend upon the willingness of her employers to allow her time to attend the hearing, but it was finally agreed that in addition to the days in August which had previously been listed, the case would be listed for a further six days in September. The Tribunal also agreed to a request from the Appellant and his wife that the letter confirming the relisted dates should include an additional paragraph drafted by the Chairman to confirm that these dates were expected to be sufficient to conclude the hearing. The intention was that this letter would, if necessary, be presented to the Appellant's wife's employers to demonstrate to them that the hearing was approaching its conclusion. The hearing then resumed as previously listed on 23, 24, 25, 30 and 31 August.[13]By letter dated 9 September 2005, an application was made on behalf of the Claimant to postpone the hearings listed on 13, 14 and 15 September and, since the letter was supported by a medical certificate dated 8 September which stated the Claimant was suffering from a viral complaint and would be unfit for a period of two weeks, the postponement was granted.[14]By letter dated 23 September 2005, the Claimant forwarded a further medical certificate dated 22 September, which stated that he would be unfit for a further period of two weeks by reason of colitis, and a further postponement was therefore granted in respect of the hearings listed on 27, 28 and 29 September.[15]By letter dated 26 September 20005, the parties were required by the Tribunal to provide a list of available dates for hearing two blocks of three days in the period from Monday 10 October 2005 to Friday 18 November 2005. In response, Counsel for the Respondents indicated availability for 3 and 4 November, and 7 and 8 November, and also for the weeks beginning 28 November and 5 December. In his reply of 2 October, the Appellant ignored the dates required by the Tribunal and stated that he and his wife (whom he described as his carer) were available for the Tribunal between 24-28 October (half-term) and between 21 December and 4 January and 13 and 17 February 2006. These dates appear to represent the academic half-terms in October and February and the Christmas holiday period which coincided with a period when the Tribunal would be closed. The Claimant said that any other dates could cause great difficulty to his wife's employers in obtaining a replacement teacher for her specialist classical civilisation level 3 teaching, but he did not state that his wife had been prohibited from attending on any future or specific dates.[16]In reply of 18 October, the Tribunal indicated that the Chairman had taken note of the matters raised by the Appellant and would take them into account when fixing dates, although emphasising that the Tribunal was still anxious that the hearing should be completed without further delay. The Tribunal indicated they were prepared to sit in three blocks of two days to assist the parties, and they wished to list before the end of the year, although it was possible to sit on 4 and 5 January if this was the only alternative to earlier dates. They pointed out it was not possible to sit between 21 December 2005 and 3 January 2006 because of the closing of the Tribunal. The parties were requested to supply a list of available dates based on three blocks of two days in the period from 7 November to 16 December within seven days of the letter, failing which, the matter would be relisted on dated convenient to the Tribunal without further notice.[17]In his reply of 25 October, the Appellant said this:
"I formally object to the bias of the Tribunal. I object to the Tribunal's letter dated 18 October 2005 on the grounds that it is biased against me because of my disability. The Tribunal is deliberately attempting to strike out my complaint of race and disability discrimination by engineering me into a situation where I cannot attend the Tribunal because of my disability because of my disability, race and religion."
Later in the letter the Appellant said that he was available for the Tribunal between 24-28 October, 21 December 2005 – 4 January 2006, 13-17 February 2006, and 10-21 April 2006. He added:
"Other dates will cause great difficulty to me because of my disability."
[18]In its response of 15 November 2005, the Tribunal said this:
"The parties must recognise that personal convenience is not the only consideration in this matter. The Tribunal hearing is a judicial process which must be accorded priority over other personal and business commitments and this is especially so in the present case in which there is a pressing need to bring the matter to an early conclusion."
Later in the letter, the Tribunal said this:
"In submitting the dates set out in his letter dated 25 October 2005, Mr Khan has simply ignored the requirements of the Tribunal's letter dated 18 October 2005. He has been given every opportunity to submit available dates in accordance with the framework required by the Tribunal, but has declined to do so. The matter will now be listed in a matter which takes account of the commitments of Mr Khan and Mrs Plumb (insofar as these can be ascertained from the correspondence and discussion on listing which took place at the hearing on 5 August of this year, but is otherwise determined by the need to conclude the proceedings expeditiously."
The letter went on to note that Mrs Plumb had previously indicated that the most convenient date for her was a Thursday and it therefore set out three blocks of two days, namely Wednesday 7 and Thursday 8 December 2005, Wednesday 14 and Thursday 15 December 2005, Wednesday 4 and Thursday 5 January 2006. On 16 November the Respondents applied to postpone the hearings of 14 and 15 December, because of Counsel's non-availability, but that application was refused.[19]On 25 November, the Appellant wrote to the Tribunal. He asserted:
"The Tribunal has not taken into account my disability and my carer's childcare arrangements in making a decision to force me to the Tribunal on dates they know I cannot attend."
Later in the letter he said this:
"My wife's commitments have changed in order to meet the increased recruitment of classics students this academic year. She was expecting to teach one English lesson on a Thursday (and therefore believed cover arrangements would be simplified as she would have a team of English colleagues within the college to draw on, lesson swaps could be arranged and so on). She now teaches a fully classics timetable, which renders any day problematic as specialist cover for this subject is hard to come by. There are no other classicists at the college and her external link (who covered her maternity leave) has commitments at a local independent school. As a Chair of Governors, the Tribunal Chairman, Mr Beaumont, is fully aware that a teacher's timetable is not the same from one year to the next."
That letter was acknowledged by the Tribunal on 29 November 2005 in the following terms:
"The Chairman directs me to inform you that he has no further comment to make on the matters raised in your letter."
[20]The Appellant failed to attend the hearing fixed for 7 December, or to send any message to the Tribunal to explain his absence. By letter of 7 December the Appellant was informed that the hearing would resume as previously listed on 14 December and "you will be required to give a full explanation for your failure to attend the hearing today and the Tribunal will then consider on what basis the matter should proceed." He was also informed that on that occasion the Tribunal would consider:
"(a) whether your claim should struck out on the ground that your unexplained absence today is evidence that you are conducting the proceedings in a manner which is unreasonable and (b) the issue of any order for costs in respect of the wasted costs incurred by the Respondents in attending the hearing today."
[21]In his response of 12 December 2005 in a lengthy letter, the Claimant stated:
"I find this whole situation stressful and distressing. I set out clearly for the Employment Tribunal Chairman Mr J Beaumont the dates I was able to attend the Tribunal and gave full reasons to the Tribunal (date 25.10.2005 and 25.11.2005) of the effect of my disability and my need for my carer to be with me so that I would not be at a substantial disadvantage at any hearing for reasons related to my disability."
The Appellant did not give any specific reason why he was not able to attend the hearings on 7 and 14 December, nor did he expressly request a postponement of the latter hearing, although he maintained that, as previously, the Chairman and the Tribunal were acting in a bullying and discriminatory manner and they were biased against him.[22]The Tribunal immediately responded by letter and email on 13 December 2005 saying that the formal hearing on 14 December would proceed and he was expected to attend and to deal with the matters set out previously by the Tribunal in their letter of 7 December. The letter continued:
"The Chairman has considered what you say in your letter but can see no reason why you cannot attend the hearing, at least to the extent of being able to deal with the matters referred to in this paragraph."
The letter continued:
"You must understand that if you fail to attend the hearing and no further explanation is forthcoming, the Tribunal may deal with the matter set out in our letter to you dated 7 December 2005 in your absence."
[23]On 14 December the Claimant again failed to attend the Tribunal. No further message or correspondence was received from him to explain his absence. Counsel at that time applied for the claim to be struck out. The Tribunal considered that it was in the interests of justice for the Appellant to be given one further opportunity to attend and explain himself and his claim might be allowed to proceed to a conclusion on the merits if possible. The Tribunal therefore postponed the next days hearing fixed for 15 December, and by letter dated 15 December 2005 the Claimant was informed that the Tribunal had decided not to strike out his claim on 14 December but that the Respondent's application to strike out would be further considered at the next hearing fixed on 4 January, which was a date which he had previously supplied to the Tribunal as one which was convenient to himself and his wife.[24]The Tribunal indicated that additional hearing dates would be listed as far as possible in January and February and in any event before the end of March and that he should not assume that the dates which he previously supplied would be adopted, but that when he attended the hearing on 4 January he should have a list of available dates to cover the period 9 January to 31 March. The Tribunal continued:
"Although the Tribunal readily accepts that your wife assists you in the presentation of your case, it is noted that she has been able to attend hearings at an earlier stage in the proceedings on some 29 days which appear to fall within academic terms. The dates in September of this year were expressly fixed within the current academic year on the basis that these were the days of the week most convenient to your wife. Moreover, since it is clear to the Tribunal that you were able to drive and conduct your own case (as you have been doing throughout the hearing) there appear to be no good reason why another person cannot attend as your assistant in place of your wife if she feels unable to attend on those listed dates. So far as possible the Tribunal will endeavour to list the remaining hearing dates subject to the matters set out above to meet the convenience of the parties. However, it must be clearly understood that at this stage the priority is to complete the hearing of your claim as soon as possible even if this causes some inconvenience to either or both parties. If you fail to attend the hearing on 4 January 2006 without good cause, your claim will be struck out on that date on the ground that you are conducting the proceedings in a manner that is unreasonable and/or failing to pursue your claim actively."
The letter then informed him of the order for Costs in the fixed sum of £3,000 made in respect of the wasted costs of 7 and 14 December hearings.[25]In a letter of 30 December 2005 the Appellant responded in detail to the earlier correspondence and in view of the importance of that letter we set it out completely:
"Friday 30 th December 2005 For the URGENT attention of Mr Doyle (Regional Chairman), Copy for Mr Beaumont (Tribunal Chairman) Copy for the Attorney General, Copy for His Honour Judge Meeran President, Employment Tribunals (England and Wales). Employment Tribunals, Alexandra House, 14-22 The Parsonage, Manchester M3 2JA. Your Reference: 1807116/2001/HK Dear Sir, HRA 2000, Articles 3,5,6,8, and 14; DDA 1995, S55, S64, S53(6), S57; RRA1976, S2, S30, S33, S47(10); Code of Practice: Disability Discrimination (1996); Code of Practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment (1983); Case law on the burden of proof, IGEN & Others v Wong (2005) 1. The tribunal is fully aware that the named respondents have no defence to my complaints of discrimination and victimization before the tribunal. The respondents have failed to produce any documentary evidence in response to my complaints. Had the respondents followed their own policy requirements in all aspects of my complaint then all that documentation had to be in existence. The respondents own internal investigation found that the public speech mocking my race, disability and religion was unacceptable on those grounds. The respondents have no defence to my complaint and the tribunal knows this fact. 2. I have had to endure continuing discrimination on the grounds of my disability, race and religion throughout the judicial process. The theft of my mail is dismissed by the tribunal as an error of judgement. Without my knowledge or my consent, on the instructions of the respondents barrister, the tribunal contacts my carer's employer. The tribunal lay members laughs along with the respondents defence that the public speech mocking me, my race, disability and religion made in my absence, all of which forms a fundamental point of my complaint, "cheered up" the white members of staff in my absence. These and all the other incidents of bias are detailed in my formal objections to the tribunal. 3. 1 have had to endure the "..ill judged .."insults from the tribunal chairman when he himself accused me in the course of the hearing of "..inciting racial hatred.." and the Tribunal chairman claims it is "rubbish or me to state race and disability discrimination is serious abuse. The atmosphere in the tribunal room is hostile and intimidating and has made my disability much, much worse. The chairman has not removed my right to object to such biased abuse, this in itself will make my disability much worse and he knows it. The whole judicial process has been a further discriminatory process for me and I feel victimized by the whole judicial process. 4. The tribunal chairman failed to declare his conflict of interest when he made the decision not only to remove my disability adjustments and prevent me attending the tribunal hearings because of my disability, but to then award costs against me because I did not attend the hearing that I had informed him I could not attend because he had himself removed the reasonable disability adjustments that prevented me attending. (Mr Justice Eve: Law v Chartered Institute of Patent Agents (1919) 'A person who has a judicial duty to perform is disqualified from performing it if he has a bias which renders him otherwise than impartial or if he so conducts himself in relation to the matters to be investigated as to create in the mind of a reasonable man suspicion that he may have such a bias. ' 5. The tribunal chairman has made his position untenable as the chairman of any further hearings into my complaints of discrimination and victimization before the tribunal. The chairman, the named respondents in (case number 2405142/2005), has stated in his defence against my complaint of discrimination, he denies that I am disabled within the meaning of the DDA, and claims I have provided him with no evidence in relation to the nature of my disability . This is not true as the chairman has all the evidence of my disability and its effects to me (including evidence dated 5/11/2002,14/4/2003) and knows that I am disabled in law and in fact. 6. These factual inconsistencies combined with the chairman's failure to declare his conflict of interest in relation to me and my disability debar this chairman from any further participation in any hearings into my complaints against the respondents of race and disability discrimination, and victimisation for making that complaint. 7. The failure of the chairman to declare, in this case (1807116/01) of race and disability discrimination and victimization, his conflict of interest, as a named respondent in a complaint by me of race and disability discrimination and victimization in case number 2405142/2005, is a fundamental error in law, and as a consequence renders null and void the formal tribunal "
Decision" of the 22/12/2005 to award costs against me. 8. This tribunal's use of the threat of costs and the striking—out of my complaint, in order to create evidence to justify the tribunal's decision to remove my reasonable disability adjustments, is itself an unlawful discriminatory abuse of the judicial process and a breach of Articles 3,5,6 and 14 of the HRA 2000. Such created evidence could then be cited by the chairman as evidence to support his own stated defence in my complaint of discrimination in case number 2405142/2005. 9. It is therefore unreasonable to require me to attend any further hearings of the case 1807116/01 until such time as that case can be heard by an independent tribunal. I will therefore not, for the reasons set out in this letter, be attending any of those hearings into case number 1807116/2001, on the dates agreed by the respondents and the tribunal, until a hearing by an independent tribunal is organized for me with my reasonable disability adjustments in place at Manchester employment tribunals."[26]The Tribunal responded by letter of 3 January 2006 informing him that the Tribunal would sit as listed on 4 January to consider the Respondent's application to strike out the claim and the Tribunal again noted that this date had been previously supplied as one that he was able to attend together with his wife. He was warned that if he failed to attend, the hearing would nevertheless proceed in his absence and it was likely that his claim would be struck out on the grounds that he was conducting the proceedings unreasonably in repeatedly failing to attend hearings of which he had been given proper notice and in respect of which he had been expressly required to attend the Tribunal "and made aware of the possible consequences of your failure to do so." The letter continued:
"If you do not attend the hearing on 4 January it is open to you to submit written representations as to why your claim should not now be struck out. If you do not attend, the Tribunal will in any event take full account of the letters which you have sent in connection with the listed dates in December and January. The hearing will proceed on the basis that you have been given every possible opportunity to attend and give a full explanation of your refusal to attend the earlier hearings in December and the hearing of 4 January. In conclusion the chairman has asked me to emphasise in the clearest possible terms the importance of attending the hearing of 4 January and the possible consequences of a failure to do so. If you attend the Tribunal will consider all you have to say and it is likely your case will be able to proceed to a conclusion on its merits. If you decline to attend you will face the consequences which are set out in the course of this and our previous letters."
[27]On 4 January the Appellant once again failed to attend the hearing and no message or representations were received from him as previous attempts to contact him on that morning on both his home and mobile telephones received no reply and the hearing therefore proceeded in his absence. After hearing further submissions from Counsel for the Respondents the Tribunal unanimously concluded it was left with no alternative other than to strike out the claim.[28]The Tribunal concluded that the Appellant had not established that either he or his wife were unable to attend the hearings listed as opposed to expressing a preference to attend only on dates of his own choosing and that he had not advanced any medical or other evidence to show that he was unable to attend any hearing without the assistance of his wife or to establish that no other person would be able to assist him in presenting the case. The Tribunal found that the Claimant had deliberately chosen not to attend the hearings on 7 and 14 December and 4 January in an attempt to force the Tribunal to abandon those dates. They also noted that he had been inconsistent in his stated objections to the hearing dates, having initially relied solely on the issue of his wife's employment and then having changed his ground to state that he could not attend because of his own disability, race and religion. They also noted that at no stage had he expressly stated that his wife had been prohibited by her employers from attending the hearing dates and came to the view that if that had been the case this would have been mentioned in correspondence.[29]The Tribunal noted the various hearings that he had failed to attend and the warnings that he had been given about the consequences. In particular, that he had been given a number of opportunities to attend a hearing to explain the situation. The Tribunal noted that in conclusion in his letter of 30 December, he had indicated that he was not prepared to attend any further hearings before the present Tribunal and they concluded:
"He therefore removed any doubt that he was acting unreasonably and engaging by this time in a calculated and wilful refusal to attend and complete the hearing of the case."
The Tribunal added:
"Even if the Claimant had been persuaded to attend the hearing on some date after 4 January and the remaining dates for hearing had been fixed at that time, the pattern of dates which the Claimant was prepared to accept would have meant that the hearing could not have been concluded before the last week of May at the earliest and more probably some date in late July or early August of this year."
They concluded that the extent of the further delay had increased the prejudice to the Respondents and rendered it so difficult for the Tribunal to make a proper assessment of oral evidence given up to two-and-a-half years ago that a fair trial was no longer possible. They noted that the delay subsequent to August 2005 had arisen solely by reason of the Appellant's conduct in refusing to attend the hearings in December and January and that the blame for a fair trial being rendered impossible "must therefore lie finally at his door".[30]The Tribunal considered whether it was possible to conclude the hearing in the absence of the Claimant, but concluded that:
"Having regard to the level of costs already incurred in these proceedings from public funds and to the time already taken by this hearing, it would not be in accordance with the overriding objective of the Tribunal to take this course and that the only result of doing so would to be incur yet further costs which the Respondents may not be able to recover from the Claimant."
The Tribunal repeated that they had formed the view that the Appellant had taken a deliberate decision to absent himself from the further hearing of the case and that in so doing it was conducting the proceedings in a manner which had become wholly unreasonable and had deliberately decided not to pursue his claim actively before the present Tribunal. They concluded that there was no appropriate proportional or practical remedy for the situation which had arisen, other than to bring the proceedings to an immediate conclusion by striking out the claim in its entirety on the grounds that the manner in which the Appellant was conducting the proceedings had become wholly unreasonable so that a fair trial was not possible and the Appellant by his conduct in choosing not to attend any further hearings had ceased to pursue his claim actively.[31]We would add that in an email and letter sent to the Tribunal by the Appellant both on 11 and 25 January 2006 he stated as follows:
"I am entitled to a fair hearing by an independent Tribunal. I set out to you clearly my reasons in my letter to you dated 3 January 2006 why the present Tribunal is not independent. I refer you again to those reasons and I await your reply detailing for me the date when you have organised a new Tribunal that is independent."
Jurisdiction[32]The first issue that we determine is raised in relation to jurisdiction under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The Tribunal, when dealing with both the strike-out application and the costs applications purported to exercise its jurisdiction under the 2004 rules, although when the claim was instituted in October 2001, the previous 2001 rules were in operation.[33]The transitional provisions are set out at Regulation 20 as follows: Transitional provisions 20.(1) These Regulations and Schedules 1 to 5 to them shall apply in relation to all proceedings to which they relate where those proceedings were commenced on or after 1 October 2004.(2) These Regulations and Schedules 1 and 2 to them (with the exception of rules 1 to 3 and 38 to 48 of Schedule 1) shall apply to proceedings: - (a) which were commenced prior to 1 October 2004; and (b) to which Schedule 1 to either the old (England & Wales) regulations or the old (Scotland) regulations applied; provided that a copy of the originating application was not sent to the respondent prior to 1 October 2004.(3) In relation to the proceedings described in paragraph (2), the following provisions of Schedule 1 to the old (England & Wales) regulations or the old (Scotland) regulations (as the case may be) shall continue to apply: - (a) rule 1 (originating application); (b) rule 2 (action upon receipt of originating application) with the exception of paragraphs (2),(4) and(5) of that rule; and (c) rule 14 (costs). (4) In relation to proceedings described in paragraph (2) but where a copy of the originating application was sent to the respondent prior to 1 October 2004, Schedules 1 and 2 to these Regulations shall apply with the exception of rules 1 to 9, 21 to 24, 33 and 38 to 48 of Schedule 1 and rules 2, 3 and 4 of Schedule 2. (5) In relation to proceedings described in paragraph (4), the following provisions of the old (England & Wales) regulations or the old (Scotland) regulations (as the case may be) shall continue to apply: - (a) in Schedule 1:- (i) rule 1 (originating application); (ii) rule 2 (action upon receipt of originating application) with the exception of paragraphs (2), (4) and (5) of that rule; (iii) rule 3 (appearance by respondent); (iv) rule 8 (national security); (v) rule 14 (costs); and (b) rule 1 of Schedule 2. Both parties agreed that these proceedings came within sub-rule (4); i.e. they commenced before 1 October 2004, they were subject to the 2001 Rules, and were sent to the Respondent before 1 October 2004. The effect is that the new rules, and in particular rule 18(7), applied to the strike-out but that the old costs rules still apply, namely rule 14 of the 2001 Rules rather than the new costs rules 38-41. The Tribunal were therefore in error in referring in the costs applications to exercising jurisdiction under the 2004 rules and we shall consider the effect of that mistake below.[34]Meanwhile, we consider the complaints in relation to the strike-out decision being made under regulation 18(7) which provides that the Tribunal may strike out a claim "on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous unreasonable or vexatious." Perversity[35]Mr Brown, on behalf of the Appellant, argued that the decision to strike out the claim after 49 sitting days by reason of his non-attendance was extraordinary and perverse. He conceded that in order to succeed on perversity he would have to make out an overwhelming case that the Tribunal reached a decision which no reasonable Tribunal on a proper appreciation of the evidence and the law could have reached, see Yeboah v Crofton [2002] IRLR 634 (CA) per Mummery LJ at para 93.[36]Mr Brown also reminded us that the appropriate tests in relation to a strike out application is set out in Bolch v Chapman [2004] IRLR 140 , namely, first whether the guilty had behaved scandalously, vexatiously or unreasonably, whether it was still possible for a fair trial to take place, the appropriate remedy and the consequences of that remedy. In his submissions he reminded us that the Appellant had invested an enormous amount of time and energy into these proceedings and that there was no evidence that he did not want to bring them to a conclusion. Further, much of the delay had been for reasons many of which were beyond the Appellant's control. Mr Brown argued that the Tribunal's decision taken around 3 August 2005 to expedite the hearing meant it reversed its previous practice to accommodate the convenience of the Appellant and his wife. He argued that it was perverse for the Tribunal to strike out the claim because of his non-attendance (described in his written submissions as two dates, but in fact three) some four years after the commencement of the proceedings and towards the end of the evidence. He argued that the Tribunal should have looked at the Appellant's actions in the light of his stress and the costs order of £3,000 made in respect of the aborted hearings on 7 and 14 December. He argued that a further delay into 2006 to accommodate the Appellant and his wife would not have been unreasonable in the context of the overall length of this case.[37]In oral submissions Mr Brown argued that, set against the history of the case, the Tribunal should have regarded the Appellant's non-attendance following his letter of 30 December 2005 as a momentary fit of pique rather than a long-term indication of unwillingness to co-operate in the court process. He argued that the Tribunal's comments about the history of the case were clearly biased against the Appellant, e.g. "ostensibly to use to the toilet." and also referred to the Tribunal's letter in December:
"Your claim will be struck out."
[38]He argued that the Tribunal completely ignored the necessity of the Appellant having his wife to assist him. He took us to a medical report early in the proceedings from the Appellant's consultant setting out that his illness "could affect his ability to prosecute the case on a day to day basis." He also argued that it was unrealistic for the Tribunal to suggest that somebody else could attend and be of assistance at such a late stage in the proceedings. Overall he argued that the Tribunal were in error in treating the events of December 2005 and January 2006 as the last straw. He also argued that fair trial was still possible and that in particular a further six month delay was not crucial in the light of the overall history of this case. He argued that the Tribunal's response should have been to relist the case on the dates requested by the appellant in February and April.[39]In reply, Mr Gargan, who had also appeared below on behalf of the Respondents, argued that the Tribunal were entitled to form the view in August that the hearing had to be concluded as quickly as possible, irrespective of who was at fault for the earlier delays. He reminded us that the Tribunal had offered to accommodate the Appellant and his wife by suggesting blocks of two days for hearings and that the Tribunal were entitled to be sceptical about the description of the Appellant's wife as a "carer" which he introduced into the correspondence at a very late stage, particularly bearing in mind the Appellant's ability to conduct the proceedings over the three years.[40]He reminded us that no evidence had been put forward during the latter part of 2005 from Mrs Plumb's school to suggest that she was not available on the dates in December. In any event, at the very worst, he argued, the Appellant could have attended the hearings in December if only to request an adjournment as he had done previously on 24 October 2003. No medical evidence was ever submitted to suggest that he was unfit to attend on those dates. He argued that in December the Tribunal had given the Appellant repeated warnings as to the consequence of his non-attending and that the only proper construction of his letter of 30 December was that the Appellant was no longer prepared to pursue his claim before the Tribunal as constituted because he believed that the members were biased against him and therefore not independent.[41]We will interpose at this time to set out the well-known matter of general practice, that a party who considers that there is a risk that the Tribunal is biased against it should not decline to participate in the proceedings, but rather appeal the decision on the issue of bias thereafter if it wishes to do so, see Turner v Harada [2001] EWCA Civ 599 , upholding the approach in Simber & Co v Cooke [1985] IRLR 19.[42]The final straw, Mr Gargan argued, was the Appellant's failure to attend on 4 January, being a date which he had previously indicated was convenient to both him and his wife. There was no evidence before the Tribunal that given time or a further opportunity the Appellant would appear before that Tribunal. In fact his behaviour and his letter showed a contrary view as evidenced by his letter after the strike-out hearing, namely the letter of 11 January. In its decision, the Tribunal had noted that the Appellant was apparently still able to work as a supply teacher, there being no suggestion that he was at that time currently unfit to work and their experience was clearly that of an Appellant who for the last few years had been driving the proceedings. Mr Gargan also argued throughout that the Appellant had been clear in his language; as he put it to us:
"He did what he said."
[43]Nothing put before us on behalf of the Appellant begins to satisfy the test of perversity. Since the commencement of proceedings, the Appellant had made numerous applications and used a series of devices to try and force the hand of the Tribunal to persuade them to excuse themselves and to order a re-trial. He had used every excuse to try and avoid hearing dates, such as his wife's employment difficulties, his own disability, race and religion and latterly introduced the concept of his wife's childcare arrangements without any independent corroboration of these contentions. There was no confirmation from the school and there was nothing to show why he was prevented from attending the hearing dates in December. He had been given three opportunities to attend, coupled with the severest warnings.[44]The Tribunal were entitled to come to the conclusion, as they did in para 8.8, that he was acting unreasonably "and engaging by this time in a calculated and wilful refusal to attend and complete the hearing of the case." They dealt properly in para 8.10 with the issue of fair trial and dealt with issues of proportionality in para 8.15. In our view the Tribunal's decision cannot be faulted on the grounds of perversity. Bias[45]Next Mr Brown attacked the Tribunal's decision on the grounds of bias. At the outset of the hearing in 2003 the Chairman of the Tribunal informed the parties that he was the Chairman of Governors of a state comprehensive in Cheshire known as Knutsford High School. The school involved in these proceedings was in West Yorkshire and the Chairman assured the Appellant that he had never met anyone in connection with that school or indeed Kirklees Council.[46]The Appellant objected to the Chairman on the grounds of apparent bias, arguing that as a Governor he might favour a school as against a teacher and suggested that some of the allegations in the case concerned the role of Governor. The Respondents argued that the role of the school Governor was not central to the proceedings and, having considered the matter with the Tribunal members, the Chairman did not excuse himself, forming the view that the role of Governor was not a major element in the Appellant's case. On numerous subsequent occasions, the Appellant raised his objections to the Chairman continuing to act in the case.[47]Later in 2003, the Appellant obtained a copy of a report on Knutsford High School by Ofsted from the year 2000. He maintained that the report contained important critical observations about the school and in relation in particular to their race and disability policies and that the Chairman, as a Governor, was in deliberate breach of the law and therefore unfit to deal with his case. It was pointed out to the Appellant that the matters referred to were in reality matters of a very minor nature and that the Tribunal Chairman was not Chairman of Governors of the school at the time of inspection. The Appellant persisted in raising and repeating these objections and the Tribunal considered the significance of the matters raised, but were satisfied again that they were not as to vitiate their decision, and that no reasonable person would have maintained this objection after the explanation which the Chairman had given to Mr Khan.[48]Early in 2005, the Chairman of the Tribunal discovered from the head teacher of Knutsford High School that a Freedom of Information Act request had been received from a member of the public in respect of copies of Governor's minutes and various policy documents, particularly in relation to race and disability issues. The Chairman, in his comments to us, said that he immediately recognised the name and address of Mr Khan as the enquirer and formed the view that his reason for making the request might be to embarrass the Chairman in his conduct of the proceedings and to provide material to rule him out as Chairman. At that stage the hearing had already proceeded for 38 days.[49]The Chairman said that he gave instructions that the head teacher should seek advice as to compliance with the request from the County Council Education department and that the matter was not to be referred to him in any circumstances at any time in the future. If any matter required the attention of a Governor, the Chairman instructed that it should be dealt with by the Vice-Chair of School Governors. The Chairman told us, and we accept, that he took no further part in the matter but that he understood that the request for information was wholly or substantially complied with.[50]As a result of the Chairman's illness during this hearing, much of the latter part of the proceedings was recorded and there are transcripts. Mr Hull, the head master, has sworn an affidavit in response to the Claimant's affidavit setting out his grounds of complaint, and on page 20 of that affidavit he refers to the hearing on 5 August 2005 when the Chairman, Mr Beaumont referred to the Freedom of Information Act application:
"30.2 The Respondents are not aware of the way in which KHS dealt with the Claimant's requests. However, when the matter was raised by Mr Khan at the hearing on August 2005 Mr Beaumont stated that he had tried to avoid having any dealings with the Claimant in relation to KHS. In particular Mr Beaumont stated: 'Well, that's an entirely different matter, Mr Khan. 1-I think so that everyone understands what's going on here, because I'm sure you don't Mr Gargon, Cr, Mr Khan has been pursuing various requests under the freedom of information act, directly with Knutsford High School, as he contends that the Head Master has not properly dealt with those requests. He has been informed that he needs to complain to the Chair of Governors if he wishes to raise a complaint, er, he may have done so, the school of course is now closed. I-I have no knowledge directly of that Mr Khan. If a complaint is dealt with by governors, it will not be dealt with by me, because of our relationship in these proceedings, it will be dealt with by a sub committee of other governors. That is completely separate from these proceedings and the only correspondence I would be concerned with in these proceedings is correspondence to this office connected with the case. I think that deals with that matter and closes it for the present time.' 30.3 It is submitted that Mr Beaumont's response was entirely appropriate and prevents there being any evidence of bias or any appearance of bias."
[51]As we have mentioned above, in August 2005 the Respondents attempted to strike out the claim. This application arose in part from the manner in which the Appellant had sought to publicise the case on the internet, describing both the Tribunal members and the Respondents in racist terms, and in particular alleging that the Tribunal panel were showing "repeated and racial Islamophobic allegiance with the Respondents. The internet criticism also made reference to the Chairman's role as then Governor of Knutsford High School. The Chairman dealt with these matters when giving his ruling that the strike-out application failed: [Mr Beaumont speaking] "There is no doubt at all in our mind that Mr Khan was responsible for the material of which the respondent complained or the vast bulk of it and that he must carry that responsibility. There is equally no doubt in our minds, that his argument that these documents and messages were prepared when under stress, is not an argument which has any substance because this is not a case of perhaps an outburst in the Tribunal, an ill-judged comment, its not even a case of an immediate response to a particular item of correspondence which has caused some sort of offence, it is considered, consistent abuse of persons connected with these proceedings including myself and my colleagues, the members of the Tribunal. I'll deal first with the position of the Tribunal, we are in no doubt that some of Mr Khan' comments, and I don't propose to rehearse them, but that some of his comments are in the clearest possible contempt of the Tribunal. We are accused of supporting or shielding racists, we are accused of deliberate and considered bias, we are accused of helping the respondent's to escape justice, and we are accused, in effect, of persecuting Mr Khan throughout this hearing. We are satisfied, and we have considered these matters despite what Mr Khan may believe about us, we are satisfied that all of those allegations are without foundation. … We considered specifically the contact which Mr Khan has fairly recently made with Knutsford High School, the School at which I am currently Chair of Governors, we are satisfied that there is a connection with the conduct of this case, because on any reasonable interpretation of what is going on, the intention in seeking information from that school, is to influence the outcome of the proceedings, either in terms of finding material which discredits myself as Chairman, or in showing some failure on the part of the school, which justifies Mr Khan's assertion that this is an inadequate or incompetent Chair of Governors and they are likely to support corrupt conduct at Newsome High School. Mr Khan says this is public information which I am entitled to receive under the Freedom of Information Act, at one level that is completely true, it is true, but the matter goes rather more deeply than that in our judgment. It is overstating the case to say, as Mr Gargon did, that it is analogous to stalking the Chairman, it is clearly inappropriate conduct however, when the case is proceeding and we're satisfied that again it is ingenious for Mr Khan to ask us to believe that these activities are not directed towards the conduct of this case. Nonetheless, having said all that, and taking all those matters into account, we are enjoined by authority, in the words of the authority, to have a broad back. We are expected.... … I was dealing with the issue of Mr Khan's conduct in relation to Knutsford High School and in relation to myself specifically and my colleagues on the Tribunal. I had stated the Tribunal is enjoined to have a broad back. The essence is, that we are satisfied that we are able to proceed notwithstanding the pressure to which I have been subjected and, to an extent, my colleagues, as members of the Tribunal have been subjected by Mr Khan, in his conduct in these respects. We would not, therefore strike out for reasons pertinent to ourselves."[52]In about October 2005, the Appellant sought to claim that his request under the Freedom of Information Act had not been complied with, and it came to the Chairman's knowledge that he had issued proceedings in the Manchester region of the Tribunals service, alleging race discrimination against the school, the County Council, the head teacher, the Chair of Governors and the Governors.[53]It appeared that neither the Tribunal nor ourselves were ever shown a copy of the ET1, although we have seen a copy of the ET3 filed at the beginning of November 2005. The Claimant alleged that his requests for information formed part of his enquiries in relation to whether he wished to apply for employment at the School, although as the ET3 pointed out, the only vacancies at the school which were advertised in January and February 2005 were for a temporary teacher for business studies, a temporary teacher for modern languages, a part-time clerical assistant and a co-ordinator for lower school performing arts, none of which posts were in the Claimant's field of expertise. The ET3 alleged that the claim was motivated more by these proceedings than a genuine claim for discrimination.[54]The Chairman, in his affidavit , said that his view was that the objective in initiating these proceedings was to force him to stand down as Chairman in the present case, and as soon as knew of the existence of the new proceedings he instructed the County Council legal department and the head teacher that he would take no part in the case and gave no instructions as to the response to be filed. He took no part in the proceedings, which were subsequently struck out at the end of January 2006 by a Chairman brought in from another region.[55]In his affidavit the Chairman said this:
"The Tribunal expressly considered the existence of Mr Khan's new claim when we reconvened and we announce we concluded that, since I had no taken no part whatever in those proceedings, and since that inception was clearly designed for the purpose of brining the present proceedings to an end after the Tribunal had already sat for 38 days, they did not give any good reason to abort the present hearing at such a late stage in the proceedings."
Although the strike-out decision makes no reference to the Tribunal considering the existence of the new proceedings, it is clear from the transcript of the hearing on 4 January, page 589, bundle E, that the Chairman, in a dialogue with Mr Gargan, raises the new proceedings and explained that he had not taken any part in them, arranging for his deputy to take over responsibility.[56]Mr Brown argued that this was a clear case of apparent bias. He took us to the recent EAT decision of Hamilton v GMB Northern Region (UKEAT/0184/06/DA) where the President, Elias J, at paragraph 29 helpfully set out the principles to be applied:
"29. (1) The concept of apparent bias is different. The rationale for this rule is not that a man must not be a judge in his own cause, but rather the related but distinct principle that justice must be seen to be done. The principle is designed to ensure that the public have confidence in the system of the administration of justice. As Lord Steyn said in Lawal v Northern Spirit Ltd [2003] ICR 836, para 14: 'public perception of the possibility of unconscious bias is the key.' (2) The basic test to be applied is this: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased. This was the test approved by the House of Lords in Porter v Magill [2002] 2 AC 357 following the analysis by the Court of Appeal in the case of Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 . (3) Accordingly, the court must first ascertain all the relevant circumstances which have a bearing on the allegation of bias; and then assess that information as would a fair-minded and informed observer. An appeal court is in as good a position as the original court to assume the vantage point of the fair-minded and informed observer and so must itself make the assessment: see the observations of Mummery LJ, with whose judgment Latham and Carnwath LJJ agreed in AWG Group Ltd v Morrison [2006] EWCA Civ 6 . Moreover, "the relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing ….": Flaherty v National Greyhound Racing Club Ltd . [2005] EWCA 1117 at para. 27 per Scott Baker LJ. (4) In determining the relevant circumstances, regard must be had to the judge's actual knowledge. There can be no real suspicion of bias in circumstances where the judge himself or herself does not appreciate the potential conflict of interest which is said objectively to give rise to the potential bias: see the observations of Lord Bingham in Locabail , para. 55. (5) Where there is a real possibility of bias but that is not appreciated until sometime into the course of the trial, the fact that it would be extremely inefficient in terms of time and cost to abort the trial at that stage is strictly irrelevant. As Mummery LJ put it, in AWG Group Ltd v Morrison at para 29: 'In terms of time, cost and listing it might well be more efficient and convenient to proceed with the trial, but efficiency and convenience are not the determinative legal values: the paramount concern of the legal system is to administer justice which must be and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having.' (This principle does not, perhaps, sit too easily with certain dicta in Locabail at para. 58 which suggest that the consequences of recusal may in some cases be a material matter to consider. However, we think that would only be where the case is very marginal, in which case the precautionary principle which would favour not sitting would not apply with the same force as it would where the trial has not even started.) (6) The possibility of bias can be waived but only in circumstances where the party waiving it is aware of all the material facts and of the consequences of the choice to him, and has been given a fair opportunity to reach an un-pressured decision: see Smith v Kvaerner Cementation Foundations Ltd (Bar Council intervening) [2006] 3 All ER 593 at para 26: "he must have acted freely and in full knowledge of the facts" per the Lord Chief Justice, Lord Phillips of Worth Maltravers, giving the judgment of the Court. (7) When determining whether or not there is apparent bias, the court will consider whether any statement from a judge about his state of knowledge; but it should test that statement objectively in the light of all the evidence. It ought not to have regard to any protestations by the judge that he or she was not in fact biased: see Locabail , paras 19 and 64. (8) Judges should not readily accede to accusations of apparent bias because that may lead to the parties seeking to effect a disqualification so as to have the case tried by a judge considered to be more amenable to their case: see the observations of Mason J sitting in the High Court of Australia in RE JRL ex parte CJL [1986] 161 CLR 342,352 cited with approval in Locabail at para. 22. At the same time, where in any case there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail at para 25."
Mr Brown argued that the letter of 30 December from the Appellant clearly called for the Tribunal to consider the issue of bias in the light of the new set of circumstances, namely the issue of proceedings against the Chairman, and that it was not sufficient for the Chairman merely to mention in dialogue with Counsel what action he had taken. Although it appeared from the Chairman's affidavit that the Tribunal had specifically considered the issue, there was no reasoned decision of the Tribunal, see Guest v Alpine Soft Drinks [1982] ICR page 110.[57]In any event, it was now open to this court, irrespective of whether or not the Chairman and the members had considered the issue, to look at the matter afresh and he argued that, applying the Porter v McGill test, any fair-minded and informed observer, knowing that proceedings had been issued against the Chairman, would conclude that there was a real possibility that thereafter the Tribunal, and in particular the Chairman, was biased.[58]Mr Gargan argued that the issue of proceedings had to be looked at in the context of Mr Khan's behaviour throughout the case. The issue of the claim was no more than yet one further attempt by him to subvert the course of justice in the case and that the issue of proceedings in reality took matters no further than the Freedom of Information Act application. He argued that the Tribunal, in August 2005, had given careful consideration to their position, and in the light of that earlier ruling, it was not necessary for the Tribunal to give a further detailed ruling on the issue and that the mention by the Chairman of the action that he had taken was sufficient. In any event, he argued, the Appellant's letter was principally an indication from the Appellant that he was no longer prepared to have his case dealt with by that Tribunal rather than an application by him for the Tribunal to consider the issue. In any event, he had not attended on 4 January to any way substantiate or advance the argument of bias. Finally, he argued that even if the Tribunal were in error in not considering the issue, it was open to us to form a view based on all we now knew about the case.[59]Our view is that, whilst it would have been preferable for the Tribunal to at least have made a brief mention of the issue within the strike-out application - namely the existence of the proceedings and the Tribunal's view that they saw no reason to excuse themselves - we quite understand why the Chairman would see the issue of proceedings not as a fresh and distinct act but merely part of the course of conduct of the Appellant in trying to subvert the proceedings. In the light of the fact that they had given a detailed ruling in August, the Chairman believed that simply by mentioning that he had again made sure that he was not directly involved in the proceedings that was sufficient to deal with the issue and, moreover, the Appellant had not sought to attend the hearing on 4 January to argue the matter before him.[60]As far as the Appellant was concerned he was treating the issue as a fait accompli and making his own determination that because of the Tribunal's bias he was no longer going to take part in the proceedings. As we have already pointed out, that is not a course of action that was open to him. In any event, as has been pointed out by various authorities, it is open to us as the Appeal court to assume the vantage point of the fair-minded and informed observer, and we are left in no doubt that this was part of a very serious and determined campaign on the part of the Appellant to embarrass the Chairman and to force him and his colleagues to stand down. We are quite satisfied that they acted properly throughout this case despite the at times extreme provocation from Mr Khan's behaviour and at times, it seems to us, gave him too much latitude within these proceedings. We are quite satisfied that no fair-minded and informed observer would have concluded that there was a real possibility that this Tribunal was biased by reason of the issue of proceedings involving the Chairman.[61]Mr Brown then raised two further matters relating to the Chairman's conduct during the hearing. First, in the course of the hearing the Tribunal were dealing with the issue as to the Respondents' complaint procedure and, in particular, that the education service would not be involved until the school had completed its own internal procedures unless there had been serious abuse within the ordinary meaning of that term.[62]The Appellant suggested in cross-examination that the decision to require him to teach physics rather than IT amounted to serious abuse, and the Chairman made the comment that this was "rubbish". The Appellant then protested at the use of this term, and the Chairman accepted that it was an ill-considered comment, and that he would review the matter. On a number of subsequent occasions the Chairman made comments which indicated that he accepted the Claimant's submission that race and disability discrimination did amount to serious abuse, see for example the comments made during the cross-examination of Mrs Metcalfe on 1 July 2004, page E 316. We take the view the Chairman had only expressed a preliminary view in relation to one answer only, albeit in forceful language, and that generally his subsequent comments clearly indicated that he did accept that race and disability discrimination amounted to serious abuse. Again, we can find no evidence of apparent bias from this situation.[63]The second issue arises from the strike-out application in August 2005 in connection with the internet material. The Respondents had reported the matter to the Attorney General with a view to criminal proceedings being brought against the Appellant for contempt and the Tribunal had to consider whether he would be prosecuted. In the course of a discussion, the Chairman commented that the material on the internet:
"might be considered by some people to be inciteful to racial hatred which is also a criminal offence but whether that is true or not is nothing to do with this Tribunal. We are concerned only with the employment and discrimination aspects of your relationship with Kirklees."
[64]When this issue was raised as a complaint on 23 August, it was not alleged to be an indication of bias but simply a reason why the Appellant did not feel able to deal with the allegations, namely the threat of potential criminal prosecution. However, the Appellant did proceed with the matter. Again it seems to us that the Chairman was doing no more than reflecting a preliminary view about the matter and within the same comment he made it clear that the Tribunal was not directly concerned with the material on the internet, other than in relation to the strike-out application, but simply with the employment and discrimination aspects of the employment relationship. Again, we can find no cause to complain about that comment.[65]Although not advanced by Mr Brown in his oral submissions, the Appellant, in his original notice of appeal, set out a number of other grounds which indicated in his view the bias of the Tribunal. They related principally to the following:(a) In relation to hearing dates, we are quite satisfied that the whole history shows that the Tribunal endeavoured to accommodate on all occasions the wishes of both the Appellant and his wife.(b) We are not satisfied that at any stage the Appellants requests for toilet breaks were met with hostility and sarcasm.(c) Comments in relation to slips of the tongue and double moral standards were arguably justified by the context in which they were made, and having noted Mr Godwin's comments, we are quite satisfied that he was not laughing when the evidence was given about the speech.(d) In relation to the letter of 15 November, the Tribunal made it clear it would not entertain any further allegations of bias from the Appellant, on a basis already advanced. This in our view was a fair reflection of the numerous applications which the Appellant had already made. In conclusion we can find no ground to substantiate an allegation of bias. Costs Jurisdiction "14.(1) 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: (a) an order containing an award against that party in respect of the costs incurred by another party; (b) an order that that party shall pay to the Secretary of State the whole, or any part, of any allowances (other than allowances paid to members of tribunals) paid by the Secretary of State under section 5(2) or (3) of the 1996 Act to any person for the purposes of, or in connection with, his attendance at the tribunal." "40.(1) A tribunal or chairman may make a costs order when on the application of a party it has postponed the day or time fixed for or adjourned a Hearing or pre-hearing review. The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment. (2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so. (3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived. (4) A tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction." Mr Brown argues that the fact that the Tribunal referred to the new rather than the old regulations renders both costs orders a nullity and on this basis alone they should be set aside. He points to two differences between the old and new regulation. Under the 2001 Regulations, the means of the paying party were regarded as irrelevant consideration for a Tribunal considering making an order for costs, see Kovacs v Queen Mary and Westfield College [2002] IRLR 414 . By contrast, rule 41(2) of the 2004 Regulations specifically empowers the Tribunal to factor in such consideration. Further, rule 13 of the 2004 Rules empowers the Tribunal to strike out a claim or make a costs order for non-compliance with an order, including an order for costs. There was no such power under the 2001 Rules. Costs Misdirection "19. That leaves the appeal against the costs order. There is no doubt that the Chairman had power to make an order under the old Rule 14. He found that the Claimant had conducted the proceedings unreasonably in failing to comply with earlier orders and directions of the Tribunal. However, what is missing from paragraph (8) of the 14 March order is any indication that the Chairman has then gone on to the second stage under Rule 14(1), that is to consider whether or not to exercise his discretion to make a costs order and to give reasons for the exercise of that discretion. I have been referred to the judgment of Lord Justice Pill in Lodwick v London Borough of Southwark [2004] IRLR 554 , paragraph 26. The award of costs under the 2001 Rules is an exceptional course of action and the reasons for it should be specified clearly." Further assistance can be gained from the decision of the then-President, Burton J, in Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117 , where at para 30 he said this:
"30. However, in any event, whatever authority there may have been to be derived from those two decisions of the Employment Appeal Tribunal, the position has now been authoritatively canvassed in McPherson v BNP Paribas (London Branch) [2004] ICR 1398 , referred to in para 22.4 above. Mummery LJ referred to Davidson and Parish and also to the dictum of Simon Brown LJ in Kovacs v Queen Mary and Westfield College [2002] ICR 919 , 930, para 35 , which simply refers to: 'cases where the tribunal feels able to make a summary assessment and is satisfied that a summary assessment in an amount which does not exceed the specified sum would compensate the other party for the costs attributable to the vexatious, abusive, disruptive or unreasonable conduct which has led the tribunal to decide. . . to make an order for costs.' Mummery LJ, with whom the rest of the court in McPherson agreed, said, at pp 1407—1408: '39. [Counsel for the applicant] submitted that her client's liability for the costs was limited, as a matter of the construction of rule 14, by a requirement that the costs in issue were 'attributable to' specific instances of unreasonable conduct by him. She argued that the tribunal had misconstrued the rule and wrongly ordered payment of all the costs, irrespective of whether they were 'attributable to' the unreasonable conduct in question or not. The costs awarded should be caused by, or at least be proportionate to, the particular conduct which has been identified as unreasonable. 40. In my judgment, rule 14(1) does not impose any such causal requirement in the exercise of the discretion. The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring BNP Paribas to prove that specific unreasonable conduct by Mr McPherson caused particular costs to be incurred. As [counsel for the respondent] pointed out, there is a significant contrast between the language of rule 14(1), which deals with costs generally, and the language of rule 14(4), which deals with an order in respect of the costs incurred 'as a result of the postponement or adjournment'. Further, the passages in the cases relied on by [counsel for the applicant] (Kovacs v Queen Mary and Westfield College [2002] ICR 919 , para 35, Lodwick v Southwark London Borough Council [2004] ICR 884 , paras 23—27 and Health Development Agency v Parish [2004] IRLR 550, paras 26—27) are not authority for the proposition that rule 14(1) limits the tribunal's discretion to those costs that are caused by or attributable to the unreasonable conduct of the applicant. 41... It is not... punitive and impermissible for a tribunal to order costs without confining them to the costs attributable to the unreasonable conduct. As I have explained, the unreasonable conduct is a precondition of the existence of the power to order costs and it is also a relevant factor to be taken into account in deciding whether to make an order for costs and the form of the order.'"
Later at para 32 he said the following:
"32. We are satisfied that the history of these proceedings, set out in paras 5—13 above, well known and understood by the tribunal, more than justified the finding by the tribunal and that the matters expressed in para 8 of the tribunal's decision, set out in para 14 above, sufficiently explain the tribunal's decision. There was in essence no part of the proceedings which the employment tribunal, fully seised of the case, was prepared to exempt from its categorisation of unreasonable conduct by the claimant. It is certainly not in our view possible to say that the decision of the tribunal was perverse, particularly given its parallel conclusion that the proceedings were misconceived. In any event it is clear that the tribunal did, as Mummery U would have had it do, 'have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion'." "13. Against this background, the Tribunal concluded that: (a) it was clear that the claimant had taken a deliberate decision not to attend either hearing, although he well knew that neither hearing had been postponed and had been expressly required to attend the hearing on 14 December to explain his absence on the previous occasion. (b) there was no medical or other evidence before the Tribunal to justify the claimant's failure to attend either hearing; and likewise no medical or other evidence to justify the claimant's assertion that he was physically unable to attend a Tribunal hearing unaccompanied by his wife. (c) there was no evidence to show that the claimant's wife had been prohibited by her employer from taking time to attend either hearing, nor any suggestion that the claimant had given any consideration to the possibility of being supported or assisted by another person at these hearings. (d) although the claimant habitually refers to his wife in correspondence as his "carer," and the Tribunal has taken fully into account that the claimant is a disabled person by reason of ulcerative colitis, it has been apparent throughout the hearing that it is the claimant himself who is driving the proceedings and that the claimant is capable of conducting his case and advancing coherent argument on his own behalf. It is also known to the Tribunal that the claimant regularly works as a supply teacher and there is no suggestion from him that he is currently medically unfit to work or to attend a Tribunal hearing. The Tribunal therefore does not accept that the claimant's wife is his "carer" in the sense that he is physically unable to attend a hearing without her assistance, although we do accept that she is his assistant and supporter and that he would prefer her to attend the hearings with him. 14. In relation to the sittings on both 7 and 14 December, the Tribunal was satisfied from the tone of the claimant's correspondence and from his failure to appear at the either hearing that he has no intention to attend any hearing other than on his stated dates, and that, in failing to attend without good cause (especially when expressly requested to do so by the Tribunal.) he is conducting these proceedings in a manner which is wholly unreasonable and contemptuous of the Tribunal. 15. The Tribunal was therefore left in no doubt that an order against the claimant in relation to the whole of the costs incurred by the respondents in preparing for and attending the hearings on 7 and 14 December 2005 is amply justified. 16. Counsel for the respondents informed the Tribunal that the amount of costs incurred for legal representation by himself and his Instructing Solicitor in relation to each hearing is in the region of £1,500 and that the overall bill of costs for the two wasted days is £3,050; and, having regard to the level of complexity of these proceedings and usual charging rates for Counsel and Solicitors in matters of this kind, this was a reasonable sum to have been incurred. 17. After due consideration of the matters set out in the course of these Reasons, the Tribunal unanimously decided that the appropriate order in relation to the costs incurred on 7 December and 14 December 2005 is an Order that the claimant do pay a contribution to the respondents' costs in the fixed sum of £3,000." "15. Against this background, the Tribunal considered very carefully how best the interests of justice could be served in this case. It cannot be right or consistent with the proper administration of the law that a party can escape financial liability for causing his opponents to incur very substantial and unnecessary legal costs in defending proceedings which turn out to be wholly unmeritorious and which are enormously and unreasonably prolonged by the manner in which that party conducts his case. This is particularly so when the defaulting party has willfully resisted and disregarded all attempts by the Tribunal to assist him in putting his case in a proportionate and realistic manner and has then, in effect, provoked the striking out of his claim by a conscious decision not to attend any further hearings of the Tribunal. 16. The Tribunal was very conscious that it remains the exception rather than the rule for costs to be awarded in Tribunal proceedings. However, this is a case which falls squarely within the provisions of Rule 40(3) in that the claimant has acted wholly unreasonably in the manner in which he has conducted these proceedings; and it is the considered and unanimous judgment of the Tribunal that the appropriate Order in all the circumstances of this case is that the claimant must be ordered to pay to the respondents a sum equal to 80% of the costs incurred by them in defending these proceedings. These costs are intended to include the costs incurred on 24 October 2003 and 3, 4 and 5 August 2005 which are separately referred to in paragraphs 10 and 11 of these Reasons; and, for the avoidance of doubt, it must be added that the order is not intended to penalise the claimant for his lateness in attending Tribunal hearings or the frequent breaks in the course of each Tribunal day, since it is accepted that these matters derived from his disability and were not part of the willful default which has justified the Order for costs against him."