D’Silva v Manchester Metropolitan University (Practice and Procedure : Costs) [2014] UKEAT 0172_12_1504

EAT
D’Silva v Manchester Metropolitan University (Practice and Procedure : Costs)
[2014] UKEAT 0172_12_1504 · 2014-04-15
[14]“ Burton J on that issue considered the authorities relating to bias … and he summarised the law with some care in his judgment … ‘l. The test to be applied … in determining bias is: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased. 2. If an objection of bias is then made, it will be the duty of the Chairman to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance …. 3. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour … . 4. It is the duty of a judicial officer to hear and determine the cases allocated to him or her by their head of jurisdiction. Subject to certain limited exceptions, a judge should not accede to an unfounded disqualification application …. 5. The EAT should test the Employment Tribunal's decision as to recusal and also consider the proceedings before the Tribunal as a whole and decide whether a perception of bias had arisen…. 6. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection …. 7. Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be shown …. 8. Courts and tribunals 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 (or stay) cannot …. 9. There should be no underestimation of the value, both in the formal English judicial system as well as in the more informal Employment Tribunal hearings, of the dialogue which frequently takes place between the judge or Tribunal and a party or representative. No doubt should be cast on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies …. 10. In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal …. 11. Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise ( Locabail at para 25) if: ‘a. there were personal friendship or animosity between the judge and any member of the public involved in the case; or b. the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or, c. in a case where the credibility of any individual were an issue to be decided by the judge, the judge had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or, d. on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or, e. for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues. ’’” 48. We, however, agree with Mr Gilroy QC that Employment Tribunals are entitled to express themselves freely and forcefully when explaining their reasons and may, if appropriate, make trenchant findings about a party’s credibility when dealing with questions of liability. That said, they must be careful not to overstep the mark, and we have had regard to the case of R v Inner West London Coroner ex parte Dallaglio and Another [1994] 4 All ER 139 where the coroner’s public description of one of the relatives of the deceased as “unhinged” was held to be not merely injudicious and insensitive but also a gratuitous insult such as to give rise to an appearance of bias. 49. Moreover, any such expressions of a view must not be given or made in such as way as to pre-judge a subsequent application that might be made in the proceedings, such as an application for costs in Employment Tribunal proceedings (see Oni v NHS Leicester City (formerly Leicester City Primary Care Trust) [2013] ICR 91 EAT. In that case the Employment Tribunal (when dismissing the claimant’s claims of unfair dismissal, race discrimination and victimisation but before any application for costs had been made) stated:[12]“ In our view, not only was the bringing of the various claims unreasonable but the manner in which they have been conducted was also unreasonable.” When an application for costs was subsequently made, the Tribunal ordered the claimant to pay the whole of the respondent’s costs. The EAT in that case held that the Tribunal’s words echoed the threshold test for awarding costs and demonstrated that the Tribunal had expressed its concluded view on the application of that test. In those circumstances EAT held that the Tribunal should properly have recused itself on the ground that the fair-minded and informed observer would conclude that there was a real possibility that it had prejudged the question of costs. 50. On the Employment Tribunal’s power to award costs, we have had regard to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 , Schedule 1, to the general power to award costs given at rule 38 and to the circumstances in which such an award might be made at rule 40, which provided (relevantly) that:
“ When a costs or expenses order may be made 40 ... (2) A tribunal...shall consider making a costs order against a paying party where, in the opinion of the tribunal... any of the circumstances in paragraph (3) apply. Having so considered, the tribunal...may make a costs order against the paying party if it...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.” 51. By rule 41, provision was made as to the amount of the costs order an Employment Tribunal might make. At the relevant time, that was limited to £10,000 as the sum that, absent agreement, the Tribunal might award without referring the matter for detailed assessment to the county court. 52. By virtue of rule 41(2) it was, further, expressly provided that: “(2) The tribunal...may have regard to the paying party’s ability to pay when considering whether it...shall make a costs order or how much that order should be.”
So, the means of the paying party would be a potentially relevant matter that the Employment Tribunal might take into account - although it was not obliged to do so - first, at the stage of considering whether to award costs and, second, if having decided to make such an award, then as to the amount. Discussion and conclusions 53. As we have indicated, we agree with the Respondent that it can be appropriate for an Employment Tribunal to express itself forcefully where the findings in issue justify such force of expression. Tribunals should not be put in fear of expressing themselves forcefully because of the risk of a complaint of bias. That is true of any Court but we think it can particularly be so in the context of the Employment Tribunals operating in the industrial relations context and with real-world knowledge and experience imparted by lay members. 54. We have had regard to the detailed judgment on the merits in this case, which went through each of the complaints made in careful detail. We note the length of time taken on these proceedings at the full merits hearing, the number of witnesses heard by the Tribunal and the amount of documentation considered. We also note the Employment Tribunal’s expression of regret at paragraph 252 of the Liability Judgment: “We pause to reflect that we are dealing with a claimant who appears to us to be working at the leading edge of science and technology and yet the deployment of his talent has been deflected his personality which has driven him head long to confront his employers regularly over a protracted period of time at the expense of his research.” 55. We agree with the Respondent that the proceedings before the Sneath Employment Tribunal were not to be seen in isolation. As that remark we have just cited makes clear, there is a whole history of litigation and earlier trenchant findings against the Claimant. Those include, for example, the earlier O’Hara Tribunal (to which reference was made by the Sneath Tribunal, at paragraph 258), speaking of the Claimant’s claim being “riddled with contradiction, misrepresentation, duplicity and opportunism”. 56. Plainly the Sneath Tribunal was unable to simply ignore this background in reaching its view as to the Claimant’s credibility. This was all part of the background before it, to which it was entitled to have regard in its views at the full merits hearing. 57. Having reached its views on the Claimant’s credibility, in part having regard to that background material, those matters could quite properly feed into the Tribunal’s approach to the costs application. It was entitled to hear that application and was not required to recuse itself from doing so. 58. We considered carefully the language used by the Sneath Tribunal, particularly at paragraphs 259-260, and asked ourselves whether that overstepped the mark and amounted to the expression of a concluded view on the threshold test for a costs application in a similar way to the Tribunal in the Oni case. 59. Before answering that question, there is some difficulty for the Claimant in that it is certainly arguable that this point was not taken as part of the Notice of Appeal. We were not convinced by Mr de Mello’s arguments as to how it might be seen to have been foreshadowed by the grounds of appeal. 60. In any event, giving the Claimant the benefit of doubt on this point, having considered the matter quite carefully, we take the view that the Employment Tribunal’s language does not overstep the mark. The Tribunal expressed itself forcefully but it still left the point open. There was no expression of a concluded view. Indeed, by expressly recognising that the Claimant would need the opportunity to address the question of whether, in bringing the proceedings he had acted vexatiously, the Sneath Tribunal was keeping open its view on this matter for such further submissions and representations as might be made. 61. Turning to the other bases on which this ground of appeal was pursued before us, we note that whilst accepting that the substantive complaints of bias had been dismissed as part of the merits appeal (which had not been allowed to proceed at the rule 3(10) hearing), the submission was nevertheless made that the Tribunal had somehow set too high a test for the Claimant in making good his allegations of apparent bias at this costs application stage. We also note the criticism that the Tribunal had regard to an irrelevant matter: i.e. the more general interests of the administration of justice. 62. We do not accept those criticisms. Dealing with the second point first: paragraph 10 does not put the administration of justice before the principle of fair hearing. It does no more than recognise the point (recognised in the case-law we have already cited), that it is a Judge’s duty to judge cases, and that is not to be de-railed by unmeritorious allegations of bias (see the principles set out in Ansar , cited above). 63. As for the suggestion that too high an evidential test was set for the Claimant, we do not see that point. Moreover, given the conclusions on the bias point expressed by Slade J - after hearing very full arguments on this question - we do not think this point can be sustained. In particular, we have had regard to paragraphs 42 and 49 of her judgment, as follows: “42. In support of the allegation that there was an appearance of bias in the EJ Sneath hearing his claims the Claimant relied on the history of adverse decisions made against him by EJ Sneath, complaints by his representative, Dr Deman, against the EJ and his unsuccessful request that EJ Sneath recuse himself. The Claimant could and has appealed some of the Sneath ET’s interlocutory decisions. Even if any of those appeals were to succeed, in our judgment the fact that interlocutory decisions had been taken which the Claimant sought to challenge could not found a conclusion that there was an appearance of bias by EJ Sneath concluding the substantive hearing. Judges cannot be precluded from conducting a substantive hearing because they have made interlocutory decisions adverse to one party. ... 49. We have carefully considered all the many bases set out in the Claimant’s Notice of Appeal for alleging bias or the appearance of bias on the part of the Sneath ET. In our judgment none of them collectively or individually give the ground of appeal alleging bias or appearance of bias a reasonable prospect of success.” 64. There was, in truth, simply no merit in the points being made, and that was the real point the Employment Tribunal was making. 65. On the more general criticism that the Tribunal took into account irrelevant considerations going beyond the actual proceedings before it, we think that is an unfair challenge. The Tribunal was entitled to have regard to the broader matters it referred to when assessing the Claimant’s credibility at the liability stage. That assisted it in reaching its conclusion on those claims. It was thus entitled to take forward that view into its consideration of the costs application and the question whether the Claimant’s bringing of the claims was vexatious. It would be simply false and unrealistic to expect an Employment Tribunal to disregard its views of the party’s credit on the basis that it had reached that view taking into account the party’s conduct more generally. 66. Moreover, in taking this view, we do not read the Tribunal as falling into the trap of visiting the sins of the representative onto the party. Paragraphs 14 to 16 of the Costs Judgment refer expressly to the conduct of the Claimant, not to his former representative. To read these paragraphs otherwise would not only require us to go behind the Employment Tribunal’s express self-direction that it was not dealing with the conduct of Dr Deman (see paragraph 13) but would require us to effectively rewrite these reasons to refer to the conduct of Dr Deman when it is plain that it is the Claimant’s own conduct that was in issue. 67. Finally, the fact that the Employment Judge asked the Respondent’s representative why the Respondent had limited its application to £10,000 would not suggest to any objective observer that the Employment Judge had made up his mind before the hearing to impose the maximum sum the Tribunal could award. It was a sensible question to enable the Tribunal to understand the basis of the application being made, particularly when it had been presented with Schedules of Costs far in excess of the amount claimed. It would not suggest any pre-judgment of the issues. 68. As for the second ground of appeal - that the award of costs was wrong in principle - that really falls away given Mr de Mello’s concession that there is no basis on which we can go behind the record at paragraph 4 of the Tribunal’s Reasons. For completeness, we should make clear that, in any event, we would consider that a Tribunal would be entitled to make an award on this basis of its own volition. As the Tribunal’s reasons make clear, however, the principal ground on which it made the award was one the Respondent continued to rely on in its application. 69. On the question whether the Tribunal took into account irrelevant factors, we have already stated our conclusions on these points under ground 1. There is nothing in this objection. 70. On the third ground of appeal - that the award was excessive - we note the wide discretion given to Employment Tribunals in terms of the amount of costs appropriate to be awarded in any particular case. Of course, that discretion must be exercised judicially, and we consider that this Tribunal properly exercised its discretion in this case. 71. Here the award of costs was a small fraction of the sum actually incurred by this Respondent. Although the Tribunal was not obliged to have regard to the Claimant’s ability to pay, we can see that it is good practice for Tribunals to do so and we can also see that it might be arguable that a Tribunal would need to give reasons for failing to do so. Those points, however, do not arise here because this Employment Tribunal expressly did have regard to the Claimant’s means. That is apparent at paragraph 17, where reference is made to the Claimant’s earnings over a number of years, and the Employment Tribunal was entitled to take that evidence into account. We consider it was also entitled to have regard to the possibility that the Claimant might be able to make payments in instalments. Whilst the Tribunal was not able to make such an order itself, it is certainly not irrelevant to consider that a Claimant might offer to pay in instalments and that a Respondent might consider that to be a commercial way of recovering any costs awarded. 72. The amount of costs was firmly within the discretion of the Employment Tribunal and there is no error of law in its judgment in this regard. 73. There is nothing further in the review appeal, and so for all the above reasons, we dismiss both these appeals. 74. Having given our judgment in this matter, the Respondent then made an application for its costs of this appeal, under rule 34A of the EAT Rules 1993, putting that application on the bases either that the appeal was unnecessary or that it was misconceived. Putting his submissions summarily, Mr Gilroy QC made the point that the principal point advanced on ground 1 had not been contained in the Notice of Appeal. The second ground could not be sustained because the Claimant was unable to go behind the Tribunal’s record on the point. The third ground of appeal really sought to challenge a matter which was wholly within the discretion of the Employment Tribunal and was therefore bound to fail. 75. For the Claimant Mr de Mello resisted that application, observing that the matter had been allowed to proceed to a full hearing by the EAT at an earlier stage; that the first ground main point had, in his submission, been foreshadowed by the Notice of Appeal, and the EAT had in any event dealt with it on an alternative basis. Secondly, on the second ground, a concession had been given during the course of oral argument, and the Claimant should not be penalised for that. On the third ground, an arguable case had been put forward, albeit that the Claimant had lost. 76. Mr de Mello also observed that pursuant to rule 34B(2) of the EAT Rules 1993, the Appeal Tribunal may have regard to paying party’s ability to pay when considering the amount of the costs order. The Claimant was not working and had no income at present and we should take that into account. 77. In terms of the sum claimed, Mr Gilroy did not put a Schedule of Costs before us and put his application for costs of £6,000 orally, explaining to us how those costs were split between solicitors’ and counsel’s fees. 78. We consider that this was an appeal which came close to the edge in terms of engaging the EAT’s costs jurisdiction. We see the force of the points made by Mr Gilroy as to the main point in the appeal having not been properly foreshadowed by the Notice of Appeal and as to the difficulties facing the Claimant in going behind the Employment Tribunal’s record when no earlier directions had been sought in these proceedings such as to enable him to do so. On balance, however, we felt that the appeal still fell on the right side of the line. In saying that, we observe that we have not been provided with any correspondence drawing to the attention of the Claimant or his representative the points now being made by the Respondent in support of his application. We also observe that, in the course of his submissions before us, Mr de Mello is to be commended for properly making concessions at appropriate times and that it is not the purpose of rule 34A to punish a party but simply to enable the EAT to compensate a party for costs incurred in appropriate circumstances. 79. Whilst we noted that the appeal had been permitted to proceed at an earlier stage but we did not consider that this should be seen as giving an appellant a shield against a potential costs order. That would be unfair on the EAT Judge at the rule 3(10) or preliminary hearing, who will generally only be presented with one side of the argument at that stage. We have considered the merit or otherwise of his application for costs on the basis of the arguments before us and how the appeal has been run before us. On balance, we feel this falls just the side of the line and we therefore adopt our usual approach, that costs do not follow the event. 80. Were we wrong on that, we would in any event have felt it inappropriate to make an award. We would have felt it appropriate to have regard to the Claimant’s ability to pay and thus to the fact that he has no income and already has an outstanding award of £10,000 costs against him. Having regard to the absence of means, we would not have considered it appropriate to make the costs order sought. 81. For those reasons, we do not grant the Respondent’s application for costs.