Appeal No.	 EAT/27/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 July 1998

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR J C SHRIGLEY
MR G H WRIGHT MBE

MR R COLES	APPELLANT

THE NATIONAL TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondents	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED	

	MR JUSTICE KIRKWOOD:	This is an appeal by Mr Coles against the decision of an Industrial Tribunal sitting at Exeter on 8th September 1997 ordering him to pay £500 costs to the respondent, the National Trust, in a case that had been before the Industrial Tribunal.

	Mr Coles had complained to the Industrial Tribunal that he had been discriminated against within the meaning of the Disability Discrimination Act 1995 in circumstances surrounding his failing to secure employment with the National Trust at one or other of their shops. 

	The Industrial Tribunal heard that discrimination case over two days in July 1997 and they dismissed it. They said at the end of their extended reasons, given on 12th August 1997:

“17    In summary we unanimously find that the respondent did not know, and could not  reasonably be expected to know that the applicant had a disability when he applied for the Heddon Valley vacancy. Further, we find that the respondent has not treated the applicant less favourably than a person not disabled for a reason relating to the applicant’s disability. This claim is completely without merit and is dismissed.”

	There was subsequently a hearing about costs.

	The tribunal made the order I have already indicated and said this:

“1	We find unanimously that the applicant has acted vexatiously in pursuing his case. It was completely without merit. On both limbs his case has failed utterly.
2	The majority decision is that the applicant shall pay costs in the sum of £500.00. The minority (the Chairman) would have set costs at £250.00.
3	It is therefore ordered that the applicant pay costs to the respondent in the sum of £500.00”

	It is against that Order for costs alone that Mr Coles appeals and he has presented argument before us today.

	The respondent has not appeared on this appeal. They have indicated that being a charitable organisation they did not consider that representation here would be a proper or wise use of charitable funds.

	Mr Coles has addressed us for something like 45 minutes with a substantial bundle documents with a view to seeking to persuade us that it is not true to say that his case before the tribunal was without merit.

	We have stopped him in his argument because we have reached the tentative view that we can offer him some assistance, but the line of argument he was pursuing was not, it seemed to us, assisting him to take matters further. The fact is that the Industrial Tribunal found his claim to be completely without merit. In the light of that, should an order for costs be made at all? Should it have been made in the terms that it was, or in the amount that it was?

	We remind ourselves that the power to order costs is to be found in Rule 12 of the Rules of Procedure which are contained in Schedule 1 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993, and it is in these terms:

“12.-(1) Where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the tribunal may make-
(a)	an order containing an award against that party in respect of the costs incurred by another party;
...”

and subsequent provisions of the Rule empower the tribunal to deal with an award they are minded to make by way of a fixed sum.

	What we take from that Rule is that the question of costs lies in the discretion of the Industrial Tribunal. That discretion arises once the tribunal is of the opinion that a party has acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably. 

	It seems to us that the only three words there that could possibly arise for consideration in this case are the words “frivolously”, “vexatiously”and “unreasonably”. It was vexatiously which was the word used by the Industrial Tribunal. They found that Mr Coles “had acted vexatiously in pursing his case”.

	We are reminded of the decision of the National Industrial Relations Court in ET Marler Ltd v Robertson [1974] ICR 72, and in particular the following passage in the judgment of Sir Hugh Griffiths (as he then was):

“... this is not to say that every dismissed employee can with impunity pursue a claim, however hopeless it might be or for whatever wrongful motives he might present it. If the employee knows that there is no substance in his claim and it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure the tribunal to pursue it. If the 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.”

Those are very stringent tests. The test of vexatiously involves the bringing of a hopeless claim not with any expectation of recovering compensation, but out of spite to harass the employers or for some other improper motive.

	The Industrial Tribunal do not say what it was that led them to find that Mr Coles had acted vexatiously save that the case was completely without merit. That is not to say that there may not have been material before them that led them to that finding. But if there was they have not told us what it was. One of the purposes of reasons being given is to inform an appellate tribunal why it was that a decision was reached. It may be, on the other hand, that the use of the word vexatiously in the costs’ decision, represents an infelicity of expression, when what the Industrial Tribunal really had in mind was the other word “frivolously”. We can see, having regard to the words of Sir Hugh Griffiths, to which I have referred, that the tribunal might have wanted to apply the word “frivolously” to the facts of this case. But we simply do not know. 

	We do know that this was a matter for the opinion of the tribunal and not for us. We do know that this was a matter thereafter in the discretion of the tribunal. But we nevertheless are conscious that the litigant as well as the Appeal Tribunal are entitled to know the material upon which the decision was reached.

	The tribunal went on to order costs in the sum of £500. The Chairman would have set costs at £250, but he was in the minority. It may be, and we do not know and this is pure speculation, that that Order was calculated to provide some disincentive to Mr Coles from bringing further litigation against the National Trust. However that may be, an order for costs made by an Industrial Tribunal must of course be considered not just after hearing of the circumstances of the litigant against whom an order is to be made, but giving those circumstances due weight. 

	We do not know exactly what material the tribunal had as to Mr Coles’ financial position. All we know is that he is unemployed and has been unemployed for some considerable time. On the face of it, an order for £500 against a long-term unemployed person seems to us to be on the steep side. But it may be that the tribunal had other information about Mr Coles that would bring that into balance.

	The result is that we are left considerably in the dark as to what lies behind both limbs of this decision to make an order at all and the amount. That is because the reasons for it are deficient by being inadequate.

	Mr Coles told us that he sought to present an argument to the Industrial Tribunal on the basis of the decision of the National Industrial Relations Court in Marler. We wonder whether the tribunal had the opportunity to go to the report in the series of Law Reports rather than an extract from Harvey or some other work; and we wonder whether they gave the full weight to the matters in Sir Hugh Griffiths’ judgment, which we have particularly emphasised.

	The result of all that is that we propose to allow this appeal to the extent of remitting the question of costs to the Industrial Tribunal for their reconsideration in the light of this judgment and in the light of the decision in Marler, to which we have referred. It will be open to the Industrial Tribunal to leave their order in place, if that is what they think right on reconsideration, but if they do so they must give proper reasons for doing so. It may be that on reflection in the light of the various material, they will decide that some other order is more appropriate. That is entirely a matter for them. The appeal is allowed to that extent.