Hussain v Nottinghamshire Healthcare NHS Trust (Practice and Procedure: Bias, misconduct and procedural irregularity) 0080_16_2408 (24 August 2016) [2016] UKEAT 0080_16_2408

EAT
Hussain v Nottinghamshire Healthcare NHS Trust (Practice and Procedure: Bias, misconduct and procedural irregularity) 0080_16_2408 (24 August 2016)
[2016] UKEAT 0080_16_2408 · 2016-08-24
[1]I refer to the parties as the Claimant and the Respondent, as below. This is the Full Hearing of the Claimant’s appeal against a Judgment of the Nottingham Employment Tribunal (Employment Judge Britton, sitting with Mr G Kingswood and Ms J Johnson, on 14 May 2015; “the ET”), sent to the parties on 4 June 2015. By that Judgment the Claimant was ordered to pay 85% of the Respondent’s Schedule of Costs, to be assessed by the County Court in due course.[2]The Claimant represented himself before the ET but today has the benefit of representation by Ms Macey of counsel acting pro bono.[3]At an earlier hearing before me on 2 March 2016, under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 - the appeal having previously been considered on the papers by HHJ Shanks to have no reasonable prospect of success - the Claimant had the benefit of representation by other counsel, acting under ELAAS, and I was persuaded to permit this matter to proceed on the following limited bases:(1) whether the ET ought properly to have recused itself from hearing the costs application, given its earlier expression of view on the Claimant’s claims during the Liability Hearing, specifically whether those claims were reasonably pursued and as to the Claimant’s potential risk of an adverse costs award; and(2) whether the ET had adequately explained its assessment of an award of 85% of the Respondent’s total Schedule of Costs, in particular given (i) its view of the potentially reasonably arguable unfair dismissal claim, and (ii) its suggestion that the Claimant’s unreasonable conduct dated from the first costs warning given by the Respondent.[4]The Respondent was represented before the ET by Ms Barney of counsel as it is today. As is customary, at the Rule 3(10) Hearing, I only heard submissions on behalf of the Claimant, as Appellant. The Respondent’s first opportunity to set out its case in opposition to the appeal therefore came later. The Background and the ET’s Reasoning[5]The ET proceedings with which I am concerned related to four separate claims brought by the Claimant against the Respondent and (in relation to one claim) an individually named Respondent. Each claim made complaint of victimisation, which related back to an earlier complaint of race discrimination pursued by the Claimant before the ET, compromised under a COT3 agreement in July 2007. In the current proceedings the Claimant also complained of disability discrimination, race discrimination and of unfair dismissal. The Claimant’s four claims were consolidated, and a Full Merits Hearing took place before the ET, first starting on 16 September 2013. The hearing ran until 26 September 2013, when it was adjourned part-heard, resuming again on 26 April 2014, when it again ran until 6 May 2014. The ET heard from the Claimant and from some 12 witnesses for the Respondent.[6]It was during the course of the first part of the Liability Hearing, on 20 September 2013, that the ET warned the Claimant that the apparent weaknesses in his case - other than the unfair dismissal claim and an aspect of the disability discrimination claim that still had to be fully explored - were such that a costs award might be made against him. Time was given over an extended lunchbreak for the Claimant to reflect on his position, and it seems that he then withdrew certain of his allegations but persisted with the remainder of his claims. In the event, the Claimant subsequently took issue with the suggestion that he had withdrawn certain matters, and the Respondent therefore made arrangements for relevant witnesses to attend at the resumed hearing.[7]On 8 December 2013, during the adjournment of the Liability Hearing, the Claimant wrote a lengthy letter of complaint against the ET (specifically against EJ Britton) to the Regional Employment Judge, who duly investigated and responded in detail, by letter of 20 January 2014, rejecting the complaint and advising the Claimant as to other possible courses open to him, including as to how an application might be made for an ET panel to recuse itself. Upon the resumption of the ET Liability Hearing, however, the Claimant made no such application.[8]During the period of the part-heard adjournment, on 29 November 2013, the Respondent also took the opportunity to write to the Claimant “without prejudice save as to costs”. It had previously written to the Claimant in similar terms, seeking to explain why it considered his claims were misconceived and his pursuit of them unreasonable, and putting him on notice of the costs it had expended and its likely application in that regard.[9]Having resumed and completed the hearing, the ET reserved its decision on liability but ultimately dismissed all the Claimant’s claims; the ET’s Judgment in that regard - running to some 259 paragraphs over 76 pages - being sent out 2 June 2014. The Claimant sought to appeal against that Judgment - specifically raising various allegations of bias against the ET - but that was rejected by HHJ Peter Clark as being totally without merit.[10]On 14 May 2015 the ET met again, to consider the Respondent’s application for costs. An earlier hearing in that regard had previously been listed but then adjourned pending resolution of the Claimant’s liability appeal. The Respondent made its application for costs in a total sum of £94,156.96, on the bases that the Claimant had acted unreasonably in the bringing of the proceedings and/or their pursuit or, alternatively, that the claims were misconceived. Given his earlier complaint - and the advice given to him as to how an application for recusal might be made - it is relevant to observe that no such application was made by the Claimant at the Costs Hearing with which I am concerned. Moreover, at the outset of that hearing the ET raised with the parties the case of Oni v NHS Leicester City [2013] ICR 91 EAT (see below), explaining why it considered its earlier costs warning to the Claimant did not fall into the same category as the warning given in that case and, therefore, why it considered it should proceed. The parties were given the opportunity to respond on that point, both at the outset of the Costs Hearing and in the afternoon when the ET provided them with a copy of the Oni case report. Again, the Claimant made no application in this respect.[11]In considering the application for costs, the ET took account of the fact that the Respondent had not sought to apply to strike out the Claimant’s claims and there had been no deposit Orders made against him, notwithstanding that there had been some four case management discussion hearings prior to the Full Merits Hearing. On the other hand, the ET noted that the Respondent had written in a careful and balanced way to the Claimant on three occasions putting him on notice as to its view of the merits and likely outcomes of the claims and also of its intention to seek its costs and the possible amount of those costs should he continue. It had offered, for example by letter of 29 November 2013 that it would forgo its costs if the Claimant withdrew his claims; he had not.[12]Although the ET took account of the Claimant’s depression, it further noted the robust terms in which he had responded to the Respondent, indicative of what the ET described as his “ strident intransigence ” (paragraph 18). It had also had the benefit of seeing the Claimant represent himself at the Full Merits Hearing and was clear that he was not incapable of assessing the merits of his claim. The ET reminded itself the Claimant was acting in person but again balanced that observation by noting he had previously brought and settled ET proceedings, had held a number of relatively senior trade union positions, held himself out as an expert in matters relating to equality and diversity, and had obtained some advice and assistance from others with relevant qualifications and/or experience. Further, the ET recorded that it had itself attempted to point out to the Claimant the apparent weakness of his case during the course of the hearing, as and when that became apparent, and had even warned the Claimant of the risk of a costs award. Ultimately, the Claimant had lost on every front, and the ET made observations adverse to him as to the merit of his claims and his credibility. He had pursued “ extremely serious allegations which are false ” (paragraph 24).[13]Against that background, the ET was satisfied that the threshold under Rule 76(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 had been crossed and its costs jurisdiction was thus engaged. It did not assume that it must make a costs award against the Claimant but went on to consider whether it was appropriate to do so, concluding that it was, having found that the Claimant had behaved “ otherwise unreasonably ” certainly in pursuing the proceedings “ at latest from the first costs warning ” (which I take to refer to the first written costs warning given by the Respondent) (see paragraph 25). The ET rejected the Claimant’s assertion that the Respondent’s means meant he should not face an award of costs, not least because the ET took the view that this was a body working within “ a hard pressed NHS ” (paragraph 26). On the other hand, it took into account the Claimant’s means, albeit that he had failed to bring along relevant paperwork notwithstanding he knew that he was at risk of a costs award. The ET was already aware that the Claimant had received an enhanced redundancy payment of £80,314 and was not entirely persuaded the entirety of that sum had been spent or could not be retrieved. Even if that were wrong, the ET took account of the fact that the Claimant jointly along with his wife owned his home, in which there would have been something in the region of £47,000 equity (on the ET’s estimate), and also of the Claimant’s continuing and future ability to earn; he was then aged 49 and would in due course be entitled to an NHS pension. Allowing that the unfair dismissal case “ just about might have had some reasonable prospect of success requiring a Hearing ” (paragraph 33), the ET assessed the appropriate level of an award of costs to be 85% of the total claimed. The Parties’ Submissions The Claimant’s Case[14]The Claimant alleged there was an appearance of bias arising from the ET’s conduct in respect of the Liability Hearing. He had made a complaint against the ET and included an allegation of bias as part of his appeal against the Liability Judgment, of which the ET was aware. More specifically, during the Liability Hearing, the ET informed the Claimant (without any application having been made by the Respondent) that it might award costs against him. Generally, the Claimant did not accept the way in which the ET described the procedural history; he acted respectfully towards the ET and there was no abuse of process on his part. A very large award had been made against him, notwithstanding the ET having found his unfair dismissal claim might have had some reasonable prospects of success. The award of 85% of the Respondent’s costs failed to properly engage with the ET’s own finding as to the limits of the conduct that gave rise to an ability to make a costs award.[15]All of that was relevant background to the specific matters raised by the appeal; it was accepted that the Claimant’s earlier attempt to appeal against the Liability Judgment, which included allegations of bias, was rejected by HHJ Peter Clark as totally without merit and that the appeal against the Costs Judgment had not been permitted to proceed on the basis of the broader allegations of bias made by the Claimant.[16]The Claimant contended, however that there was a question arising from the ET’s earlier indication (recorded at paragraph 16 of its Liability Judgment) that the weaknesses of his case were such as to suggest he should be given a costs warning. Notably, the ET recorded that it urged the Claimant to focus on whether certain of his claims now had any prospect of success, which went further than simply the question of reasonableness of the claims (relevant for any costs application). It also observed that his claim was by then:
“16. … so very weak having come apart in cross examination and by reference to the contemporaneous documentation and also his answers. …”
[17]The Claimant submits that the strength of the ET’s expression of its view in this regard can be discerned from the Respondent’s letter - “without prejudice save as to costs” - of 29 November 2013, which referred to the ET having given the Claimant “ significant warnings ” to the effect that his claims were misconceived and bound to fail (albeit that was the way the Respondent put it, not how the ET recorded its observations in its Judgment or in the Employment Judge’s own notes). The Respondent’s letter had gone on to say that the ET:
“… even went so far as to say that the Respondent would be likely to pursue any costs award in the County Court so as to recover as much as possible from you.”
[18]Given that the ET was making its remarks at a very early stage in the proceedings, this was an expression of a concluded view(1) that the Claimant’s claims did not have any prospect of success, and(2) that any award would be enforced in the County Court. That was an expression of a concluded view as had been suggested in the case of Oni .[19]As for the possibility of a waiver of this appearance of bias, in this case - in distinction to the case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96 CA - the Claimant was a litigant in person and had already made allegations of bias in his complaint and in his appeal to the EAT. He had been faced at the outset of the Costs Hearing with the Employment Judge referencing Oni and stating his view that it did not apply; the EAT should not find he had waived his right to object on the ground of bias.[20]Turning to the second basis of challenge, the Claimant contended that the ET had failed to properly set out the basis of the 85% award made, in particular given its finding as to when the Claimant’s unreasonable conduct might have started (see paragraph 25) and in terms of the view it formed as to the unfair dismissal case (see paragraph 33); the reasoning needed to be unpacked further in order for him to properly understand why an award at such a high level was made.[21]The ET had given two important caveats in its Judgment. First, at paragraph 25, it had found that the Claimant had behaved “ or otherwise unreasonably ” certainly in pursuing these proceedings at latest from the first costs warning. That warning had been given some weeks after the fourth and final ET1 and after all four ET3s had been lodged. If there was any ambiguity in what the ET was saying in that regard, it should be resolved in the Claimant’s favour. All that could really be said was that the ET had found unreasonable conduct after all four claims and responses had been lodged. That, however, was not been reflected in the award made.[22]The second caveat arose from the ET’s acceptance that it should not make an award in respect of the unfair dismissal case: although it had found against the Claimant on unfair dismissal, it had not found that claim was unreasonably pursued. Given the Claimant’s lengthy service, the unfair dismissal claim was not an insignificant matter but the only reduction the ET made was in relation to its estimated length of time that the unfair dismissal case would have taken; three days.[23]The ET had made no reduction to the total expended to reflect the finding that unreasonable costs arose after the first costs warning or to more fully explain why the costs in relation to unfair dismissal were limited to 15% of the total incurred. The Respondent’s Case[24]The Claimant’s case on bias appeared to include objections on the basis that he had(1) made a complaint and(2) raised bias in his earlier appeal. It was clear, however, that a mere complaint or allegation of bias in an appeal could not require a recusal (see Ansar v Lloyds TSB Bank plc [2007] IRLR 211 CA and Oni at paragraph 38). The more substantive issue was the complaint of bias arising from the fact that the ET had stated that it might make a costs award against the Claimant during the Liability Hearing. The Respondent contended, however, that the Claimant had waived any right to object to the ET panel continuing to hear the costs application (see Locabail ): the Claimant was well aware of his ability to apply for the ET to recuse itself (brought to his attention by the Regional Employment Judge when responding to his complaint) and at the Costs Hearing the ET had been entirely transparent, drawing the parties’ attention to the Oni case, providing copies of that report and allowing for any objections to be made. The Claimant did not object and had only belatedly claimed bias after the decision went against him. Even in his original grounds of appeal this point had not formed the focus of his complaints.[25]In any event, this was not an Oni case. A fair minded and informed observer, having considered the facts, would not conclude that there was a real possibility that the ET was biased, applying the test laid down in Porter v Magill [2001] UKHL 67 . As for the matters relied on by the Claimant in this regard, his complaint to the Regional Employment Judge had been investigated and rejected and his earlier appeal against the Liability Judgment on the ground of bias dismissed as totally without merit. The Claimant could not again seek to rely on those matters. It was common ground that the ET had warned the Claimant of the potential for a costs award to be made on 20 September 2013, during the course of the Liability Full Merits Hearing; it had, however, only warned him that he was at risk of such an award; it did not - unlike the ET in Oni - express a concluded view on the matters relevant to such an application.[26]As for the adequacy of reasons ground, there was little doubt that the Claimant knew why he had lost. Although the ET concluded (see paragraph 25) that the Claimant had behaved “ or otherwise unreasonably ” certainly in pursuing these matters at latest from the first costs warning, it was artificial to restrict the reasoning by concentrating on the date of that warning. The Reasons went beyond the Respondent’s warning to the Claimant in terms of identifying the Claimant’s unreasonable conduct throughout the proceedings and the misconceived nature of the claims. In particular, the ET accepted the Respondent’s submissions that the complaints of discrimination and victimisation were misconceived, that the Claimant had conducted himself unreasonably in pursuing such complaints in the face of notice that his claims were doomed to failure, that the Claimant had unreasonably sought to go back on withdrawals he had made in the first part of the hearing and that he had unreasonably pursued false allegations and distorted the evidence.[27]There was, further, no contradiction between the ET’s conclusions at paragraphs 25 and 33. Although not always perfectly expressed, the Claimant - a party to the costs application and so aware of the background and the way the application was put - was fully aware why the award was made against him at 85% (see Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 EAT). At paragraph 33 the ET had explained that really the unfair dismissal complaint was the only claim before it that might have had some reasonable prospect of success requiring a hearing. It appropriately assessed the likely time it would have taken to consider that complaint alone, thereby resulting in an assessment of costs at 85%, which had to be seen against the backdrop of its earlier findings in respect of the Claimant’s unreasonable conduct. Discussion and Conclusions[28]As I have previously set out, the Claimant’s appeal was permitted to proceed on two bases only. The first raises a question as to whether the ET manifested the appearance of bias in respect of its determination of the Respondent’s costs application given its earlier costs warning to the Claimant during the course of the Liability Hearing; this is a point that emerges from the Judgment at the EAT in the case of Oni . The issue for me is essentially whether this is properly to be described as an Oni case or whether it falls on the other side of the line. The second basis for the appeal is one of adequacy of reasons and relates to the level of the award, 85% of the total costs expended, and the explanation provided for that.[29]I turn first to the bias, or Oni , point. The test for apparent bias is as set out by the House of Lords in Porter v Magill [2001] UKHL 67 ; that is, whether a fair minded and informed observer, having considered the facts, would conclude there was a real possibility that the ET was biased. Putting myself into the shoes of that fair minded and informed observer, the first step I must take is to determine the relevant facts.[30]In the present case, although the Claimant had previously objected to the ET panel and made complaints of bias in his complaint to the Regional Employment Judge and in his appeal against the Liability Judgment, this background does not provide any basis for concluding that the same panel must not continue to consider the subsequent costs application (see Ansar v Lloyds TSB Bank plc [2007] IRLR 211 CA and Oni ). In Oni , the EAT allowed (see paragraph 26) that it is generally in the interests of justice that the ET that dealt with the underlying hearing or proceedings also deals with any question of costs. Further, the mere fact that the ET expressed itself in terms adverse to the Claimant in the course of giving reasons for the Liability Judgment will not be a ground for recusal, and that will also be the case in respect of the expression of a clear view as to the Claimant’s credibility (see paragraphs 27 to 30 of Oni ). The other party might rely on the ET’s expression of such views in any subsequent application for costs, but those remarks would not have been primarily directed to such an application and would not, of themselves, prejudge it. The fair minded and informed observer would not take them as indicative of bias (see paragraph 31).[31]What the ET should not do, however, is (see paragraph 32 of Oni ):
“… express itself in a way which tends to demonstrate that it has already made up its mind, prior to hearing argument, not only on the issues it had to decide but also on issues which only fall for decision if an application for costs is made. …”
[32]In Oni , it was held that the ET had evidenced the appearance of bias by earlier, in its Liability Judgment, expressing the view that:
“… not only was the bringing of the various claims unreasonable but the manner in which they had been conducted was also unreasonable.”
The ET was not there simply warning of the risk of its costs jurisdiction being engaged but expressly concluded view that it was; it had already determined the point before addressing any application for costs and hearing from the parties on it.[33]In the present case, the ET (according to the Employment Judge’s note; not disputed by either party before me) raised the point as follows:
“ “Out - agreed. Back. Full costs warning (not viz the bank/disability issues and ultimate dismissal). Out 10 minutes Claimant to reflect. Back Ms Barney proposes early lunch for parties to consider matters reconvene at 1.”
My note then reads that we therefore took lunch between 12:15 and 1 and that on return the “Claimant withdrawing claim numbers 73-80”.”[34]Greater context is given at paragraph 16 of the ET’s Liability Judgment as follows:
“The next point to make is that therefore from time to time during these proceedings and in accordance with the Overriding Objective and when on the face of it the Claimant was in great difficulties in terms of his answers under cross examination and by cross reference to the contemporaneous documentation, that the Tribunal urged him to focus on whether certain of his claims now had any prospect of success. By day 5 this led to a costs warning being given by the presiding judge with the full consent of his members as to the discrimination issues excluding the Bank and unfair dismissal issues. This was because his claim was by now so very weak having come apart in cross examination and by reference to the contemporaneous documentation and also his answers. He appeared to take heed in that he withdrew a whole series of claims within the Scott schedule (see Ms Barney’s schedule for the re-commencement of the Hearing). Yet he subsequently denied this in crucial respects (see his closing written submissions for confirmation) meaning that Ms Barney had to call the relevant witnesses, otherwise no longer needed, at the resumed Hearing.”
[35]Somewhat unusually in this case, I also have almost contemporaneous evidence as to the parties’ respective perspectives on this intervention by the ET. The Claimant relies on the Respondent’s letter of 29 November 2013, sent “without prejudice save as to costs” during the period when the ET went part-heard, where it observed:
“In summary, for the reasons set out in this letter, we consider that your claim is entirely misconceived and is bound to fail. The Tribunal gave you significant warnings to this effect and even went so far as to say that the Respondent would be likely to pursue any costs award in the County Court so as to recover as much as possible from you.”
[36]For his part, the Claimant set out his recollection of EJ Britton’s intervention in his letter of complaint to the Regional Employment

Judge on 8 December 2013, where he complained as follows:

“22. On the Friday of the first week, fourth day of my being cross examined, Judge Britton just out of the blue threw his pen quite angrily across the desk, staring directly at me and almost shouted (definitively raised his voice - and this was not for the first time) that he was now going to make a statement that he knew he was expecting that he would have to make - he then pushed his chair back towards the wall and said to the other two panel members ‘would you agree colleagues, as we have already discussed this may happen’ the other two just nodded in agreement - he then for the first time during my cross examination said I could pick up my note book - and in an angry tone said because of the matter at that point that I was continuing to pursue he was formally issuing me with a ‘warning of costs’ - he then in quite [an] intimidating way asked me directly as to whether I still wished to pursue that particular matter as [an] incident of discrimination or victimisation - and when I said that I no longer wanted to pursue that individual matter he was satisfied. 23. I was just left bewildered by this as it was totally unexpected. I had not acted in any way unreasonably, had never raised my voice (just not in my nature to do so), had conducted myself professionally and respectfully even under extreme provocations, I had been punctual throughout, I did not use any bad language or exhibit any other behaviour that could even remotely be construed as unreasonable - after making this statement the Judge said he was going to give me a few minutes to digest what he had just said and gave a 10 min break which then turned into half an hour as it was close to lunch and during this time the Barrister tried to monopolise on this by emphasising that if I just withdrew my case now then the Respondent would agree not to pursue me for costs. 24. When we returned after Lunch the first thing that Judge Britton said was that his cost warning that he gave was only in relation to the matter that was being discussed at that time and asked me to agree that I had withdrawn that particular incident willingly. I honestly would not even be able to recall what the specific incident was that I had withdrawn as obviously without pen and paper and the added burden of stress and anxiety that I was facing it was just not possible to recall from memory many of the specific points.”
[37]The Regional Employment

Judge investigated that complaint and, relevantly, found as follows:

“22. In regard to your comments that Judge Britton “out of the blue threw this pen quite angrily across his desk staring directly at me and almost shouted”, Judge Britton denies that he threw his pen across his desk. There is no supporting evidence from either of the non-legal members independently of this allegation. Judge Britton confirmed that he recalls dropping his pen on the table and that a warning was given to you about possible costs implications which the panel members fully accept they had all previously discussed, as a panel. As a result of that I note that you made some withdrawals of some of the allegations as you record within paragraphs 22 and 23. I make no comment about the conversation you describe within paragraph 23 in terms of the discussion between you and the Respondent’s Counsel as neither Judge Britton nor the non-legal members were party to that. At paragraph 24 I further note that you withdrew some of your allegations, (as confirmed by both of the non-legal members in their independent comments to me), as a result of the possible cost consequences. However, both non-legal members have stated that Judge Britton explained the ramifications of all of this quite clearly and in some detail to you and that that this [sic] was by way of guidance and not in the manner as you have alleged. Again this is a procedure that is within the capacity of a Judge or the tribunal to make collectively to any party before the tribunal in regard to matters that are being pursued by that party and not in my view an issue of misconduct.”
[38]I am no longer concerned with the manner in which it is said that the costs warning was made but with the language used: whether this overstepped the mark and amounted to the expression of a concluded view, per Oni . In determining that question it is relevant to consider how the Claimant saw the position at the time. Whilst the test I am to apply is an objective one - looking at the position from the perspective of the reasonable, independent observer - it is not irrelevant to consider how the parties saw the position; that is part of the information that the reasonable observer would take into account. Here, the observer would be aware of the Claimant’s complaint and how he had recorded the Employment Judge’s warning. The observer would also be aware that the costs warning was further revisited at the outset of the Costs Hearing and the ET specifically drew the parties’ attention to the Oni case and invited their observations. The reasonable observer would note that the Claimant apparently did not see the costs warning given in his case as akin to that in Oni because he made no objection to the ET proceeding, notwithstanding its earlier intervention in this regard.[39]I note Ms Macey’s submission that the Claimant was a litigant in person and had already been rebuffed when making complaints of bias on two previous occasions (in his complaint and in his appeal against the Liability Decision). I do not, however, see that these factors meant that he was in some way unable to express a view about the application of Oni when the ET invited him to do so if he considered appropriate.[40]Having due regard to the full context, I am satisfied this is not a case where the ET impermissibly stepped over the line. A court or tribunal must be able to give guidance to parties as to how their case or conduct might be viewed and the risks they might be taking if they continue down a particular path; in certain circumstances, not to do so could itself be considered a failure to try to ensure a level playing field. At the same time, of course, the tribunal must be careful not to reach a conclusion as to whether the case or conduct in issue should in fact be viewed in any particular way before it has had the opportunity to hear from both sides on the point.[41]The ET in the present case did suggest that the Claimant might focus on whether certain of his claims now had any prospect of success. That was not, however, the statement of a concluded view that those claims did not have any prospect of success, but an urging that the Claimant reflect on his position given the evidence; the ET was not saying it had concluded the claims had no prospect of success but was asking the Claimant - who should have been in a better position to assess the merits of his own claims, given that he would have been more familiar with the further evidence that was to come than the ET was at that stage - to himself reflect on the question. It is right that the ET went on to observe that which was by then apparent to it on the Claimant’s own evidence - that it had come apart in cross-examination and by reference to the documentation he had been taken to - but that was an observation made against a background of concerns as to how the Claimant was putting his case - concerns that had been expressed at various stages in the ET proceedings - and as to whether he had understood what he needed to establish (see paragraphs 5, 8, 11 and 12 of the ET’s Liability Decision). It was further limited to that which the ET had by then heard and about which it was able to form a provisional view. In context, it was an observation that properly arose out of the ET’s attempt to case manage the hearing and no more.[42]Moreover, it is clear to me that the Claimant properly understood that the ET was giving him a warning as to the risk of a costs application, not expressing a concluded view as to the outcome of any such application. That is apparent from the Claimant’s complaint to the Regional Employment Judge, which uses the language of warning, and from the Employment Judge’s contemporaneous note. The fact that the Respondent referenced the warning (in its subsequent “without prejudice save as to costs” letter) in making its own observation that the Claimant’s claims were entirely misconceived, did not transform that statement of the Respondent’s view into a conclusion that the ET had itself expressed. It may be that - as the Respondent’s letter also suggests - the ET referred to the possibility that any application might need to be pursued before the County Court (although that appears in no other record available to me), but, again that would be no more than a reminder of that which the ET Rules state, not the expression of a concluded view as to the outcome of any application for costs that might be made.[43]As the Respondent has noted, the Oni point was not the focus of the original grounds of appeal, as one might reasonably have expected it to have been if the Claimant was concerned that the ET appeared to be biased in this respect, nor did the Claimant take that point at the outset of the Costs Hearing. Whether or not that should be taken to be a waiver of the point - per Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96 CA - as the Respondent suggests, it is certainly not irrelevant in determining what was in fact said and what was understood by the parties at the time.[44]Having thus considered all the material before me, I am satisfied the ET did not cross the line in this case. It did not do more than properly warn the Claimant of that which is apparent from the ET Rules - that there is a risk of costs in certain circumstances in ET proceedings of which he should have been aware and on which he might have wished to reflect; it would not cause the informed and impartial observer to consider that there was a possibility of bias.[45]I turn then to the adequacy of reasons point and the two arguments taken under this head in addressing the reasoning provided by the ET. In so doing, I bear in mind the guidance given in Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 EAT:
“32. … it must be borne in mind that the extended reasons of an employment tribunal are directed towards parties who know in detail the arguments and issues in the case. The tribunal’s reasons do not need to be spelt out in the detail required, were they to be directed towards a stranger to this dispute. …”
[46]The first point made is that the ET was inconsistent in making an award in respect of costs incurred prior to the Respondent’s first warning to the Claimant of a possible application. That warning had only been given after the fourth and final claim was lodged and, presumably, some element of the overall costs incurred.[47]The ET certainly considered that warning to be relevant; it specifically identified this as evidence of the Claimant having behaved “ or otherwise unreasonably ” (see paragraph 25). That said - as the Respondent observes - the ET more generally found the Claimant had made extremely serious allegations that were false, requiring the Respondent to call witnesses to deal with those points, and that he had distorted the evidence (see paragraph 24). It further found that the weaknesses in the Claimant’s case became apparent during his cross-examination, from his own answers and by cross-reference to the contemporaneous documentation and that other aspects of his case (although not the unfair dismissal complaint) were obviously bound to fail (see for example at paragraph 33).[48]I remind myself that the assessment of costs is a matter for the ET and the EAT should not readily interfere. That said, I do consider that a party against whom such an Order has been made is entitled to understand the basis for the award. Whilst the Respondent’s application was made on a number of bases, when it came to the ET’s decision the focus was very much on the reasonableness of the Claimant’s conduct in pursuing his claims once the weaknesses of those claims and the possible risks of a costs application had been made clear to him by the Respondent (the first costs warning). It was this that stood in place of any deposit Order from the ET. Thereafter, the ET certainly refers to other aspects of the Claimant’s conduct in pursuing his claims, which it considered was unreasonable: withdrawing certain matters only to reinstate them when the hearing resumed, for example. The award made, however, is for 85% of the total costs expended. As the 15% reduction expressly relates to the unfair dismissal claim, I am unable to see any allowance made for the period prior to the first costs warning, yet I am equally unable to see that the ET has made an express finding that its costs jurisdiction was engaged in respect of costs incurred prior to that time. Whilst the ET may only have said that the Claimant behaved otherwise unreasonably “at latest” from that warning, I think Ms Macey is right that the Claimant is entitled to see the ET’s findings on costs to be clearly set out, and I see no clear finding that the ET had found that the Claimant had behaved unreasonably prior to that date. I therefore allow the appeal on this point.[49]The second argument raised under this ground relates to the ET’s approach to the unfair dismissal claim, which the ET allowed might have had some merit. The issue here is whether the ET adequately explained its assessment of the costs relevant to the unfair dismissal claim as 15%. Ultimately, I consider that this was a matter for the ET. It carried out a broad brush assessment, but was best placed to determine how to proportion the relevant costs between the claims and in the best position to assess how the unfair dismissal case would have gone, how long it would have taken, and the likely costs involved if the other claims had not been pursued. I do not find the appeal made out on this ground.[50]I therefore allow the appeal in part. I do not find that the ET adequately explained why it made an Order for 85% of the total costs expended in the proceedings given the apparent limitation to its finding of unreasonable behaviour at paragraph 25. Having heard the parties’ representations on disposal, and having dismissed the bias appeal, I am satisfied that any remission should be made to the same ET so far as that is still possible. That seems to me to be consistent with the guidance laid down in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT. The only issue is whether the ET’s award of 85% of the total costs expended was meant to apply to costs post-dating the first costs warning sent by the Respondent or to all costs and, if the latter, on what basis that award was made.