MS F HAQUE v GREEN & CO. [2007] UKEAT 0616_06_1508

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0616_06_1508Case No Appeal No. UKEAT/0616/06/LA UKEAT/0202/07/LA UKEAT/0284/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS F HAQUEAPPELLANTGREEN & CO.RESPONDENT
Before
His Honour Judge McMullenDate 15 August 2007
[1]APPEARANCES For the Appellant MS F HAQUE The Appellant in Person For the Respondent MR SCOTT PEARMAN (of Counsel) Instructed by: Messrs. Ingram Winter Green Solicitors Bedford House 21A John Street London WC1N 2BL SUMMARY PRACTICE AND PROCEDURE: Bias / Costs The Employment Tribunal Chairman did not err in striking out two of the Claimant's claims and allowing others to remain as background evidence, with other claims to proceed in full. The EAT found that she was not biased. A second Employment Tribunal Chairman who found the conduct of the Claimant and her representative unreasonable struck out the remaining claims. No valid appeal was lodged. He did not err in principle, and was not biased, when he awarded a part of the costs of the proceedings against her. The EAT dismissed both appeals and awarded costs against her in respect of the unsuccessful allegations bias pursued despite two costs warnings. HIS HONOUR JUDGE McMULLEN QC These appeals are about the strike-out of proceedings, and an award of costs, in a case arising from an allegation of race discrimination by a Bangladeshi Muslim female employee who was dismissed for her racist abuse of others. She makes allegations of bias by "the Jewdiciary" for upholding the decision of her Asian Muslim male manager whom she condemns as a "Coconut - brown but white beneath the skin".[2]We will refer to the parties as Claimant and Respondent. The judgment represents the views of all three members, constituted exceptionally as three members under Employment Tribunals Act 1996 s 28(4) to hear appeals from these Chairman-alone judgments. Case management[3]It should be read in the context of the rulings we gave throughout the day by way of case management of what were originally three appeals. These cases were listed by different judges at the Employment Appeal Tribunal to come on together before a three person panel, and extended time was afforded so that the hearing today has been for a whole day and longer. The Respondent was given the opportunity to make written submissions for the purposes of the preliminary hearings and to be heard and has done so. The judgments referred to are(1) the Bedeau restraining Order;(2) the Goodman strike-out;(3) the Bedeau strike-out and(4) the Bedeau costs Order. Judgment (3) was appealed out of time and is not for us to hear.[4]At the outset of the hearing, we heard Mr Pearman for the Respondent in his argument that appeals(1) and(2) should not be heard because they are affected by (3). We heard Ms Haque complain that it was unfair to her that these cases should not be dealt with. Mr Pearman relied on the judgment which I gave in Edem v Ajilon Ltd & Futjitsu & Others UKEATPA/0304/07.[5]Mr Pearman is correct in part but not in whole. The Bedeau restraining Order precluded the Claimant or her representative from writing to the Tribunal for a period of five weeks while the judgment was reserved. We consider Mr Pearman is right: this is an academic appeal. It is time-spent because the Order was lifted five weeks after it had been made, and therefore corresponds to that part of the Edem v Ajilon judgment. Secondly, it corresponds to the judgment of Rix LJ, which I followed in Edem v Ajilon , because it is an interim matter in a case which had been finally struck out. On that basis, it is an abuse of process of the Employment Appeal Tribunal for the case to continue and it has no prospect of success. The Appellant is concerned at the use of the words 'abuse of process' but it is a statutory term (Rule 3(7)) and generally means less than appears because it sounds pejorative: it is not.[6]As to the application relating to the Goodman strike-out, Mr Pearman's arguments are not accepted. In fairness to the Claimant, he observed that it could be arguable that two of the four orders the Chairman made lived on; but if they had they too would have been struck out as have the two which did live on, because of the unreasonable conduct of the Claimant and Mr Graham.[7]In our opinion, this Goodman judgment is different from either of the judgments under consideration in Edem . It did actually represent a final judgment in respect of two parts of the four-part claim, and Mr Bedeau was not seised of those two matters when he descended upon his strike-out. What he struck-out were the claims which were live before him as referred by Mrs Goodman, and he was not dealing directly with the other two parts of the claim. Mr Pearman's point may well have substance when we come to consider whether the appeal has reasonable prospects of success but the Goodman appeal is therefore live before us because we accept Ms Haque's argument upon it.[8]Notwithstanding the Claimant's unparticularised allegation of bias against us we will continue to hear the two remaining appeals today - the Goodman strike-out and the Bedeau costs Order. We are not asked to recuse ourselves. The law to be applied[9]This case concerns allegations of bias as to which we are directed by the Court of Appeal in Locabail (UK) Ltd. v Bayfield Properties Ltd [2000] QB 451 , 3979, Bennett v The London Borough of Southwark [2002] EWCA Civ 223 and Ansar v Lloyds TSB Bank Plc & Ors [2006] EWCA Civ 1462 .[10]In Bennett Sedley LJ dealt with the approach of the Employment Tribunal when an allegation of bias is made so that it should recuse itself, and he said this:
'Courts and tribunals do need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment cannot. Courts and tribunals must be careful to resist such manipulation, not only where it is plainly intentional but equally where the effect of what is said to them, however blind the speaker is to its consequences, will be indistinguishable from the effect of manipulation. In Locabail (UK) Ltd. v Bayfield Properties Ltd [2000] QB 451 , 379, a specially constituted Court of Appeal (Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C) adopted a passage from the judgment of the Constitutional Court of South Africa in President, RSA v SA Rugby Football Union [1999] (7) BCLR (CC) 725, 753, which included this: "The reasonableness of the apprehension [of bias] must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial." '
[11]In Ansar the Court of Appeal fully set out the basis upon which allegations of bias and applications should be dealt with. On appeal, the EAT decides the facts.[12]As to case management, tribunals are given wide powers to conduct pre-hearing reviews to determine issues of jurisdiction conducted by a chairman sitting below. These include wide powers of case management under Rule 10 of the 2004 Rules.[13]Tribunals are also given strong powers where, in exceptional cases, costs applications are made; they include the power to award costs where a party or their representative or both have behaved unreasonably or scandalously or the proceedings are conducted vexatiously. The means of a paying party are to be considered. Our approach to judicial bias[14]The Claimant has provided detailed allegations of bias against three Employment Tribunal Chairmen. They have provided their responses and the Claimant has responded thereto. Throughout this case we have heard and read a catalogue of allegations of bias made and dismissed against a range of judicial officers including those three, the Registrar, the President, Judges and lay members of the EAT. The Claimant told us that the solicitors she had instructed no longer represent her and that a representative under the ELAA Scheme had been unable to provide representation as she had no prospect of success. As will become clear, if that was the advice given it was correct. It was also contended by the Claimant that judges were biased because they were not reading the essential material. We have read the essential material.[15]In cases alleging bias by the Employment Tribunal, the EAT determines the facts. We will give our overall view. The Claimant has expanded rather than reduced the material which she advances in these appeals. Her submissions in writing are as numerous as the papers which she seeks to adduce. She speaks extremely quickly, and does not take direction from the Bench well. She is experienced, having been to the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal in a case against previous employer, Haque v Aximis [2005] EWCA Civ 787; and to the Court of Appeal in the out of time Bedeau strike out appeal. We have found it necessary to give directions throughout her submissions so that she should focus on the relevant issues. We are satisfied that she has been given as much time as is necessary and proportionate for her to allow us to understand her case. Mr Pearman has been restrained and wholly professional and, in his submissions, concise. As will become clear, we accept them, not because we are biased but because they are correct and we prefer them to those arguments advanced by the Claimant.[16]We prefer the evidence of the respective Chairmen accused by the Claimant of bias and discharge each of them. They give a narrow measured response to the allegations, all of which are unsubstantiated and incredible. The Claimant is an unreliable memorialist of legal proceedings in which she is engaged. Two examples suffice. She did not remember that she had appeared before me in Haque v Aximis on 4 February 2004. She should: she succeeded. She exhibited that material today. The EAT was given "NOTICE OF PICKETING" on her behalf. All judges and lay members that day were decanted onto the Embankment for a fire alarm. We were leafleted by her supporters including Mr Deman, declared a vexatious litigant by the Court of Appeal and then by the EAT, Mr Graham, held to be unreasonable by the Bedeau Tribunal, and Mr Stuart, recently released from detention under the Mental Health Act (whose evidence before us today we refused to hear). I acceded to her application in 2004, not because of these antics but because her point had force. The Court of Appeal, in Mr Deman's appeal in another case relying on it, rejected all criticisms of Ms Haque's hearing.[17]Secondly, she exhibited in our papers material relating to her application for permission to appeal to the Court of Appeal in Haque v Aximis . We asked the obvious. She told us she withdrew her application having been offered a full hearing by the Court. This is untrue, and said to mislead us. Her application was dismissed by Latham LJ not on any technical grounds, but on the merits of the appeal, which was "doomed to failure". The facts[18]It is necessary to say a little about the facts relevant to both of these appeals. The Claimant represented herself and was also assisted by Mr A J Graham as Mackenzie friend. The Respondent has been represented throughout by Mr Scott Pearman of Counsel. Mrs S J Goodman, Employment Tribunal Chairman sitting alone at Watford, recorded the following in her Judgment registered with reasons on 17 July 2006:
"4.1 The Claimant was employed from 24 May 2004 as an Assistant Accountant. On 15 April 2005 there was an altercation at work, involving the Claimant and Fiona Morrison. Ms Morrison asked the Claimant to answer the telephone. That led to a dispute which culminated in the Claimant uttering the words "
F--- off you white bitch" for which she was dismissed. Ms Morrison complained to the manager, Zahid Anwar, who is Asian. Accompanied by Jenny Khan, who is white, whom he asked to take notes, he first interviewed Ms Morrison (who is white) to get her account of the matters of which she complained. He and Mrs Khan then had a separate meeting with the Claimant (who is from Bangladesh) to ask her account of what had occurred. The Claimant gave an account of what occurred and agreed that she had uttered the words of which Ms Morrison complained. 4.2 The interview culminated in the Claimant being told that she was being dismissed for gross misconduct. She would be paid up to that day - and on 30 April 2005 an amount of money was paid into her bank account for her wages up to and including 15 April 2005. She was then asked to leave the premises straight away. 4.3 The Respondent followed that with a letter of 15 April 2005 which refers to the earlier matters and says:
"It is with deep regret that Green & Co will no longer require your services due to the actions on 15 April 2005 which resulted in your acting in a racial manner to a fellow colleague. This behaviour is deemed to be unacceptable and falls under the category of gross misconduct which you will find in your contract. I have attached a copy of the clause for your attention which states that gross misconduct and racial harassment is unacceptable."
The letter then refers to verbal warnings with regard to time keeping, professionalism and attitude to fellow colleagues. It mentions immediate dismissal without notice of pay in lieu of notice and encloses a copy of Jenny Khan's handwritten notes plus some notes that Mr Anwar had made from his separate meeting with Fiona Morrison. The handwritten notes of Jenny Khan had been shown to the Claimant during the meeting, when she had made two handwritten comments in the margin. The Claimant says that she did not receive that letter. 4.7 There was no complaint to her employer about failure to give her a pay rise until further and better particulars were lodged in January 2006. There is evidence from emails of friction with colleagues, but no specific evidence that this was on grounds of race rather than issues of personality. Although there are no statistics it appears this was a multi-cultural workforce. One of the complaints for example is that an Asian colleague, Aneeta, who is of an Indian background, was paid more bonus than the Claimant. Zahid Anwar is himself Muslim with an Asian background, although the Claimant has called him a 'Coconut" (meaning, white beneath the skin). The bonus issue relates back to November 2004. 4.8 The Claimant was asked why she had not complained before the 18 April 2005 that her treatment was on grounds of race: her response was principally that the racial issue did not crystallize for her until 15 April 2005. It was on that day, after she had been dismissed, that she realised that all the treatment of which she now makes complaint was racially motivated. She raised a subsidiary point that it would have been difficult to make a complaint of race discrimination whilst still employed by the Respondent but in fairness to her did not pursue that far and said that the reason why she did not pursue the matter further or mention race specifically before 18 April 2005 was that it was only with the benefit of hindsight on or after 15 April 2005 that she had realised that her earlier treatment was on grounds of race. 4.12 On 14 July 2005 the Claimant filed ET1 by hand." The first appeal[19]The first proper appeal is against the strike-out judgment of Mrs Goodman. The Claimant made claims accurately summarised by the Chairman as follow:
"The ET1 was lodged by the Claimant on 14 July 2005. In it she made claims for: unfair dismissal, relating to procedural inadequacies in the dismissal process. There is an issue whether she had 12 months service at the effective date of termination. wrongful dismissal, as she was dismissed without notice; a claim that the dismissal was on grounds of race further claims under the Race Relations Act about matters that occurred on various dates before dismissal alleging unequal treatment in the type of work she was given, the treatment of complaints she made about colleagues, payments made for suggestions for improvement in work practices, bonuses paid to staff, in that an Asian colleague received a bonus when she did not, and not giving her a pay rise six months after starting. Some time has been spent analysing the detail of this last group of allegations. They fall into two groups: those which are referred to in two typed pages attached to the ET1, and a number of further matters in 16 pages of Further and Better Particulars, provided in January 2006 following a case management hearing. All these matters occurred between roughly September 2004 and March 2005 and so on the face of it they were discrete events [which] were brought out of time, as they occurred before the date of dismissal, and ET1 was lodged just three months after dismissal."
[20]The Respondent contended that some claims should be dismissed or struck out as they were based on a want of jurisdiction and others lacked proper particulars, as had been previously ordered.[21]The Chairman decided that two of the four aggregated matters would go forward to a hearing and two would be dismissed or struck out. Nevertheless, the substance of those which she dismissed would form the background to the other claims which were to live on, while not being the subject of freestanding claims as set out for example by Mummery J (P) in Qureshi v Victoria University of Manchester & Anor [2001] ICR 863 approved by the Court of Appeal in Anya v University of Oxford [2001] ICR 847 . The Claimant appeals against that judgment.[22]The issue before the Tribunal Chairman was to determine in respect of unfair dismissal whether or not the Claimant had sufficient length of service to bring a claim, and as to which she held that the Claimant fell short of the requisite one year's service pursuant to Employment Rights Act 1996 section 108(1) having directed herself correctly on the statute. This claim, of unfair dismissal based upon procedural inadequacies in the dismissal process, was struck out for want of jurisdiction.[23]Next the Chairman considered wrongful dismissal as the Claimant was dismissed without notice. The Chairman decided in the Claimant's favour and this would go forward to a full hearing.[24]The third issue was whether the dismissal was on grounds of race. This was a claim under the Race Relations Act 1976 , and is different from a claim under the Employment Rights Act , and that too was sent forward to a full hearing.[25]The fourth set of claims, described conveniently as a cluster by Mr Pearman, is divided into claims under the Race Relations Act and claims relating to the contract of employment other than the notice pay which she had already decided. The issue under the Race Relations Act was whether allegations made by the Claimant were in time, and if not, whether they formed part of a continuing act. If they did and were in time, there would be no problem: but if not, the issue was whether they could be a continuing act. Mrs Goodman decided the following:
"8 1 The Claimant says that the matters are not out time because they were continuing acts of discrimination. The Claimant says that these were not discrete episodes but continuing events or continuing practice. It is a matter of attitude she says. Having had regard to the details set out in the ET1 and the further and better particulars of the matters complained of, it appears that they are in fact discrete episodes and cannot be said to be a continuing event. If we take for example the failure to make an increase in pay, that was an event in that it is alleged she was promised a pay review within six months' of her start date. As for the complaints about bonus rewards and failing to reward suggestions it is hard to see how those can be viewed as continuing acts rather than specific events, so that argument is not accepted. If those are discrete events, the various dates on which they occurred range from about September 2004 until about March 2005, and they are all out of time for a claim lodged in July 2005 which was itself just within three months of dismissal."
[26]In the light of that judgment the Chairman went on to consider whether it was just and equitable to grant an extension of time. Having directed herself to a range of six factual matters she decided that she would refuse to exercise discretion in the Claimant's favour and dismissed the claim.[27]Then, having stood back from both of those decisions, she decided that these matters could be brought forward as matters of background tending to show that the dismissal was on racial grounds: Anya . She made the same decision in relation to the other contractual points and therefore of the four principal claims advanced by the Claimant in her claim form as correctly analysed, two went forward and two were dismissed and struck-out as freestanding claims but could be utilised by way of background material. Discussion and conclusions[28]The first issue the Claimant raised logically is whether or not there was a reasonable prospect that the Employment Appeal Tribunal at a full hearing would decide that the Chairman was biased or gave the impression of being biased. The allegation consists of a number of factual assertions together with some general comments about the Chairman's performance.[29]We have considered most carefully the response of this fee-paid Chairman who regularly sits at Watford. The Chairman in a very careful way has dealt with the unmeasured allegations in the material presented by the Claimant. This is an impressive account of the Chairman's approach to this case, and it recognises that there was in the Chairman's mind in advance of this hearing very careful attention to the proceedings and to how they would be developed. In short, we see no substance whatever in the allegations made of bias or apparent bias against Mrs Goodman. Her response is a complete answer to the wide-ranging allegations against her. In our judgment, the Claimant's allegation is based upon this simple proposition 'I have a good case. It has been thrown out by a Chairman. She must be biased.' That of course is not a question of law: LB Hackney v Sagnia UKEAT 0600/03 Rimer J and members[30]Standing back from the Goodman strike-out appeal, it is instructive to note this. This allegedly biased Chairman sent forward the heart of the Claimant's case for a hearing, and allowed other aspects of it to be developed by way of background. To contend that she was biased in part and not in others is a very difficult and, we suggest, illogical proposition. The usual order on a finding of bias is that the proceedings in whole are set aside, but that is not sought here. On what grounds could she be biased? It could not be race, although there were allegations made against this Chairman by the Claimant, for Mrs Goodman allowed the race claims to go forward directly or as background evidence.[31]The Claimant was warned in directions on this case that there would be a cost implication if she pursued a claim of bias and it was unsubstantiated. She pursued it: it has failed.[32]The second issue relates to the substantive contentions, said to be errors of law. First, as to unfair dismissal, the Chairman's judgment is unimpeachable. There simply was not sufficient time for the Claimant to have earned one year's service at the effective date of termination. No error of law appears from that judgment.[33]Secondly, the claims under the Race Relations Ac t were properly weighed by the Chairman under the jurisdiction which allows continuing acts to be considered. The Chairman, in the passage we have cited, has given a clear indication of her thinking behind each of the acts and the timing of them. We see no error in her approach to those matters.[34]As to her exercise of discretion, a Chairman has to consider whether it is just and equitable. The Chairman has considered six matters, all relevant to the central question before her. We bear in mind that the EAT will be slow to interfere with the exercise of discretion by a Chairman who has heard the evidence at a hearing and has considered the relevant law. In our judgment the Chairman did not err in principle, consider facts which were irrelevant or omit to consider relevant facts. Her judgment, on this appears to us from our distance to be correct but in any event it was a judgment which she was entitled to reach. The second appeal[35]This is an appeal by the Claimant against a judgment of Mr S Bedeau sitting alone at Watford on 26 January 2007, registered with reasons on 19 March 2007. This is the costs appeal. It is different from the strike-out which Mr Bedeau heard and which we have ruled is not part of our proceedings. But it is crucial to read that Judgment for an understanding of the costs Judgment and our Judgment. The Claimant appealed but her case has been taken no further than the Registrar for she was out of time. It was thus correctly struck out.[36]To bring the story forward, Mr Bedeau had to deal with an application for costs following the successful application by the Respondent to strike out her case. The Chairman said this:
"2. At the conclusion of the first part of the strike out hearing on the 18 September 2006, I ordered that neither the Claimant nor her representative should correspond with either the Tribunal or the Respondent's representative. The hearing was adjourned to the 2 October 2006. On that day I decided to reserve my judgment. On the 9 October 2006, the Tribunal received a letter addressed to the Regional Chairman. On the letterhead it stated "
Consumer Einsatzgrupen, Sword Investigations" with the caption "Defenders of Truth & Justice". The letter was from Mr Andrew Graham, who had represented the Claimant up to but not including the strike out hearing. In his letter he accused the Tribunal of "scandalous, vexatious and racist behaviour". This was in relation to the alleged refusal on the part of the Tribunal to send him a copy of my order of the 18 September 2006. Disparaging comments were made about me and the Chairman Mrs Goodman. I, therefore, issued an order on the 10 October that "Neither the Claimant nor Mr Graham shall write to the Tribunal until further order". 3. As already stated my strike out judgment was promulgated on 6 November 2006. On the 21 November 2006, I revoked the order of the 10 October subject to the proviso that no offensive material must be sent to either the Tribunal or to any Chairman. On the 22 November 2006, the Respondent applied for costs setting out the grounds."[37]The Chairman then went on to make findings about the costs application, and said this:
"24. The Claimant gave evidence in relation to her means. I also heard from Mr David William Pollock, Managing Director of the Respondent company. Having considered the evidence I made the following material findings of fact in relation to the Claimant's means. 24.1 The Claimant commenced new employment on 27 November 2006 as a temporary Accounts Assistant. It is a full time position and she earns £9.50 per hour. Her weekly pay varies but is between £300 to £350. She stated that she does not pay any income tax as she had not crossed the personal allowance threshold. 24.2 She owns a one bedroom flat which has an existing mortgage of £60,000. 24.3 At this point in the Claimant's evidence she got up and left the Tribunal room stating that "
I hope you're not suggesting that I have to sell my flat. If that is what you're suggesting, I'm leaving right now". She then promptly left the room and did not return. 24.4 I heard evidence from Mr David William Pollock. The Respondent, being residential estate agents, put Mr Pollock in a position of being able to give a valuation on the Claimant's property based on his thirty years experience. I was prepared to accept his evidence and do find as fact that if the Claimant's one bedroom flat is in a poor decorative condition, its value on the market is likely to be around £180,000. If it is in an immaculate condition then its value would be around £250,000. 24.5 On 20 December 2006, the Respondent's solicitors served their Schedule of Costs on the Claimant and on the Tribunal. It was in the sum of £18,698.84. By the date of the Costs Hearing the figure I was prepared to accept from Mr Pearman, was in excess of £20,000. This included the Claimant's unsuccessful application for a review that was refused by me on 22 January 2007 and the Respondent's costs in preparing the case for the hearing."[38]Written submissions had been presented on behalf of the Respondent, and in broad terms it was that having made claims which were struck out by reason of the conduct of the proceedings, costs orders should follow. There had been a flagrant disregard of the orders of the Tribunal and that the costs should be paid.[39]The Chairman noted the scale of costs which had been incurred of £20,000, the limit to the Chairman's costs discretion at summary assessment of £10,000, and the Claimant's means, as set out above. The Chairman considered Rule 40 and the powers in it together with the Claimant's ability to pay, the fact that the power is to be used sparingly, and, as Mummery LJ said in Alistair McPherson v BNP Paribas [2004] IRLR 559,:
"In exercising its discretion to award costs, the Tribunal must have regard to the nature, gravity and effect of the unreasonable conduct."
He also directed himself in accordance with the following authority:
"39. In the case of E T Marler Ltd v Robertson [1974] ICR, 72 , a Judgment of the National Industrial Relations Court, in defining vexatious conduct, Sir Hugh Griffiths stated that: if an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure. In such cases the Tribunal may and doubtless usually will, award costs against the employee " page 76. See also Harvey on Industrial Relations and Employment Law, Volume 5 T [1044]."
[40]The Chairman's conclusion was this:
"40. In relation to whether the Claimant and/or Mr Graham in conducting proceedings acted unreasonably, I have come to the conclusion in relation to the strike-out application that the manner in which they conducted proceedings was unreasonable and I refer to paragraphs 20 to 26 of my Judgment. 41. In addition in relation to whether or not the Claimant acted vexatiously my conclusion is that she did because her behaviour was prompted by the decision on 15 March 2006, of the Chairman Mr Metcalf, to hold a Pre-hearing Review when she wanted the case to proceed to a full merits hearing, paragraph 26 of my Judgment. 42. I further conclude that the Claimant was abusive in the manner in which she conducted proceedings, and I rely on paragraph 21 of my Judgment. 43. As regards whether the Claimant and/or Mr Graham had conducted proceedings disruptively, I rely on their behaviour during the Pre-Hearing Review on 21 June 2006. The Chairman, Mrs Goodman, records that when she switched the tape on and was giving the Judgment and her reasons, both the Claimant and Mr Graham were shouting. They were then warned about their behaviour but the Claimant continued. She was warned again and might have been warned for a third time. I refer to paragraph 17 of her comments on the Claimant's Notice of Appeal. 44. I have come to the conclusion that all of the requirements of Rule 40 (3) have been met. The Respondent has satisfied the first limb of the application for costs."
In those circumstances, the Chairman having considered again the Claimant's means awarded the Respondent a contribution to its costs in the sum of £7,500.[41]The Claimant appeals against that judgment. As is her wont, she raised allegations of bias against this Chairman, and also contended that he should have recused himself by reason of having made the judgment earlier on the strike out. The usual carousel was ordered by the EAT, and the Chairman submitted his comments in relation to what was said.[42]We have looked at the claim made by the Claimant and again the very measured response of the Chairman to highly inflammatory allegations made against him and other Chairmen. They are without substance and are dismissed. Standing back, as we do from the whole of these proceedings, and considering whether or not Mr Bedeau should have stood down, our answer is he should not. He was the Chairman who decided the strike out, and he was intimately involved in a number of aspects of this case. It was a costs order which followed his own judgment which itself is not open to appeal. We see no basis upon which it should be said that his earlier involvement would disqualify him for making the costs order. We also dismiss the allegations of actual bias made against him as being wholly without merit.[43]We turn then to the substance of the appeal on costs; and we will deal with the points made by the Claimant and the response given by the Respondent. 1. The merits of the case[44]It is plain that the Chairman considered the conduct of the Claimant and her representative and not the merits of the case. There is no substance to the contention that he was misled. He was focussed quite properly, as the Respondent invited him to be, upon the conduct of the party and her representative. 2. Accepting the Respondent's version[45]To adopt a party's submission is not to indicate bias unless there is some disfavour unfairly shown by such acceptance. The allegation that there was institutional bias by the Chairman is wholly without substance. The purpose of focussing on the Respondent's submissions was to give effect to the application which had been made to the Chairman and had been supported by relevant authorities. 3. Failing to consider the Respondent's actions[46]This contention is hopeless. In a costs application the primary focus is upon the action of the paying party. The Chairman focussed upon that and came to his conclusion based upon what the Claimant and her representative did. 4. Recusal[47]The Chairman considered the application made for his own recusal. He addressed himself correctly to Bennett (above). In our judgment he was correct to continue to bear on his broad shoulders the obligation of determining the dispute between the parties in this case. We would say it was his duty so to do. 5. Influenced by the Graham letter[48]This point can only make sense if reference is made (below para 50) to paragraph 3.29 of the Bedeau strike-out order and judgment given on 6 November 2006. The point is the Chairman ordered, during the writing of his reserved judgment, the Claimant to desist from corresponding because of the "offensive material" sent. That was the subject of a separate appeal, which we have dismissed earlier today for reasons which we gave. It was an abuse of process. 6. Recusal on the ground of having reviewed the decision[49]In our judgment this meets the same fate as the fourth allegation. The Chairman has to review a judgment of his unless there are exceptional reasons.[7]Disentangling Mr Graham from the Claimant[50]In her submissions to us today there has been a constant reference to Mr Graham. As is clear, Mr Graham represented the Claimant at various stages from 2004 and appeared with her before the Goodman Tribunal. The allegation is that the Chairman failed to recognise that the Claimant had fallen out with Mr Graham and did not wish to be associated with him. However, paragraph 3.29 says the following:
" 3.29 The Claimant then wrote to Ms Kossoff, the solicitor acting on behalf of the Respondent. I am told that Ms Kossoff is Jewish. The content, I assume, must have been deeply upsetting as it was an attack on her professionalism. The letter stated the following in response to Mr Graham's letter to her dated 18 August 2006: "
I refer to your recent letter to Mr Graham consisting of further bullying style with threats of more unfairness, premeditative plans for deceit with the participation of the kangaroo tribunal behind the back door. "I thought I would not have to state the obvious but it looks like I have to. We are perfectly capable of distinguishing the fair-minded Jew obeying the Torah from the unfair Zionist Jew. Enclosed please find an article.. where even the Jewish rabbi segregates himself from the Zionist Jew. "Mr Graham felt that due to Greene's very disproportionate and bullying behaviour it could be compared to the way Israel was behaving on a global scale. After all we would not know what Israel was up to without all the journalists pointing out their misdemeanours. Are all these journalists anti-Semitic? Mr Graham is no more than those kinds of journalists reporting on Israel's racist disproportionate massacres of innocent civilians just because they are Muslims. "But it was not the Muslims who caused the Holocaust. In that chapter Israel is a coward as it can't fight Germany so it fights Muslims rather than those who are anti-Semitic enough not to have given Jews their rightful homeland, ie with the West. "I was very reluctant to bring into my case current world affair matters but Mr Graham insisted that it was relevant in order to put into perspective the rights and wrongs for this case and so finally I agreed. His concern, as well as mine, is that when we met with racist Jews we automatically have to suspect that the part of your religion which preaches racism will have influenced such behaviour, hence it became inseparable from a race discrimination case where the employer and British judiciary, or rather British Jewdiciary is concerned. There seems to be no other explanation to the gross bias displayed by the Tribunal. Otherwise it is most definitely Islamophobia. "I am also enclosing an article where Mr Prescott calls Bush "crap". If that is acceptable to journalists and the public then my language cannot be treated any differently especially when legitimately used as an expression of disgust with regards to the Tribunal's breach of basic human rights; example, when the Tribunal did not hesitate to call my otherwise factual and accurate reporting of your client's behaviour during January '06 to June '06 as "irrelevant diatribes"."[51]The short answer is that the Chairman was not duped by Mr Graham. He was fully aware of the relationship between Mr Graham and the Claimant and was entitled to make the Order based on the unreasonable conduct of the Claimant and/or Mr Graham. Nor are we duped. We reject the attempts by the Claimant to draw a line between the conduct of Mr Graham and herself. She recognised in her letter to the Court of Appeal in 2005, and in correspondence with the Employment Tribunals in 2006 and to the EAT in 2007, that Mr Graham's vile utterances did not serve her cause but the Chairman saw through this at the time. Again resorting to the EAT's fact finding role in bias allegations, we hold that the Claimant's attempt to disengage from Mr Graham is specious. 7. The gravity of the case[52]We have no doubt that the Chairman had in mind how serious the matter was in dealing with an application for £20,000's worth of costs. 8. The Respondent saved costs[53]This is an absurd proposition. The point about employment tribunal proceedings is that all parties are subject to the overriding objective to assist the tribunal. That a tribunal is saved further days of hearing is of benefit to all. As it happens, as Mr Pearman observed, his clients have had to pay for six days of Employment Tribunal and EAT hearings and would have been better off, in fact, moving to the originally scheduled merits hearing.[9]The Chairman did not use his discretionary powers correctly[54]In our judgment he did, he cannot be impeached. He reminded himself of the exceptional nature of the award of costs and of the case itself, and fully directed himself as to the proper approach to the definition of vexatious.[55]On that basis we see no error in the decision to award costs. In the light of the Chairman's findings in his strike-out and costs Judgments, the condemnation of the Claimant's abusive, disruptive, vexatious and unreasonable conduct was correct.[56]The Claimant contended that the sum awarded was arbitrary. We do not consider the award of £7,500 against a schedule of costs of £20,000 or so to be arbitrary. It is a finding in favour of the Claimant. It avoids tipping into a detailed assessment in the County Court before a costs judge with its further costs implications. The Respondent is to get less than half its costs. The Chairman looked at the costs incurred, and it was within his discretion to slash the claim in the way he did. Significantly there is no appeal by the Respondent against that judgment. There is no legal reason for the sum to be interfered with.[57]We said in the earlier stages of today's proceedings that the merits of the case heard by Mrs Goodman might well be a feature of our judgment, for we allowed the appeal to be presented by the Claimant at a preliminary having rejected the argument of Mr Pearman. Again, standing back as we do, we hold that this appeal, if we had not otherwise disposed of it, would have stood no prospect of success. If Mrs Goodman had been wrong to strike out the two claims, the claims would yet have met the same fate when they reached Mr Bedeau. There is no distinction to be drawn between the Claimant's and Mr Graham's conduct in relation to these claims and that excoriated in the other claims. Had they survived Mrs Goodman, they would have been killed off by Mr Bedeau for the same reason. All appeals therefore are dismissed. Appeal[58]An application has been made by the Claimant for permission to appeal to the Court of Appeal following our indication to her, as a litigant in person, that such is her right.[59]It is not a criticism of her that she has not articulated those specific legal propositions which she considers the Court of Appeal should deal with. Broadly speaking, she disagrees with our orders and our judgments. She is of course dissatisfied with what we have said but no reasonable prospect of success appears in this case for otherwise we would have sent it to a full hearing; nor is there a compelling reason for this case to be considered by the Court of Appeal. Permission is refused. Costs application[60]An application has been made by Mr Pearman for the costs incurred in these proceedings. The basis of the application is Rule 34, which entitles the EAT to entertain an application where costs have been incurred unreasonably or unnecessarily. Means may be considered.[61]The application is based on a sum of £6,454.51. It is tailored to deal with the parts of the appeal dealing with bias. The fall-back position of Mr Pearman, as he engagingly put it, is to pay his brief fee of £2,000, which was in respect of his attendance here today as ordered by two judges of the Employment Appeal Tribunal to assist at these preliminary hearings and for a full day.[62]Attention is drawn to the Orders of Underhill J and HHJ Birtles when these matters were sent forward, which include the direction that pursuing unsuccessfully an allegation of bias against a Tribunal may result in a costs order. The Claimant has pursued the allegations unsuccessfully[63]The Claimant says she has a genuine belief in her case of discrimination, which has not been heard. She alleges that the Employment Appeal Tribunal shows the same bias as Mrs Goodman and Mr Bedeau (and Mr Metcalf) , and we are simply repeating their bias for there is a history of tribunals killing off merits hearings in race discrimination claims. She also contends that it would be wrong to order costs to be paid by her because the Respondent was at a preliminary hearing and it would not normally attend.[64]In our judgment, the application for costs is properly made and we will award it. The Claimant was warned by judges about bringing allegations of bias which failed. They have failed by a long way. They had no substance whatever. They did not survive even a Preliminary Hearing. She should have considered what the Chairman in each case said, and taken advice upon it; or alternatively have recognised how hopeless her contention was once warned by EAT judges. She obviously did not, for she refuses to believe that there was no bias and indeed makes the allegation against this three person Employment Appeal Tribunal to the same extent. She has learnt nothing from this long proceeding today.[65]We have considered her means because they are the subject of findings by the Bedeau Tribunal, and note that Mr Bedeau ordered £7,500. It would not be right to award all of the costs which are sought by the Respondent for they relate to the preparation of documents for the purposes of responding to a Notices of Appeal and to a preliminary hearing. It was right that that counsel attended. Mr Pearman has been of assistance to us in seeing our way through these protracted appeals. We consider that his fall-back position is correct and we will award £2,000 by way of costs since it is focussed on the failed allegations of bias. The other aspects of the case were not the subject of this application, and we consider that a brief fee of £2,000 for experienced Counsel in this field is appropriate. No additional claim is made for VAT, and so £2,000 will be paid by the Claimant to the Respondent's solicitor.