Appeal No.	EAT/945/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 December 1998

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR W MORRIS
MISS S M WILSON

MR P JEWKES	APPELLANT

MR F VALLI (WESTWAY SERVICE STATION)	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	MR JUSTICE LINDSAY:     We have before us as a preliminary matter an appeal by Mr P. Jewkes in the case of Jewkes against Mr F. Valli.

	There was a decision of the Industrial Tribunal at Sheffield under the chairmanship of Mr Rostant on 11 June 1998 promulgated on 3 July 1998 and that decision was first of all that Mr Jewkes did not have two years continuous service and secondly, that the case was stayed, as many others were, awaiting the decision in the Seymour-Smith case.  Neither of those attracts attention from Mr Jewkes, but the third paragraph of the unanimous decision was that “The applicant is ordered to pay costs to the respondent in the sum of £40” and that is a matter that has drawn fire from Mr Jewkes and that is the subject of his appeal.  The matter of costs is statutorily provided for, first of all, under the Industrial Tribunals Act 1996 section 13.  That provides:

“13(1)  Industrial tribunal procedure regulations may include provision - 
(a) for the award of costs or expenses ... ”

	And then it goes on to other subjects, but, plainly, regulations can be provided which deal with costs; that is what the statute says.  Then when one comes to the particular provisions as to costs that were therefore drawn up; one finds those in The Industrial Tribunals (Constitution and Rules of Procedure) Regulations [1993] Schedule 1, Rule 12 and there it says this:

“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 [it is a discretion that is conferred] - 
(a)  an order containing an award against that party in respect of the costs incurred by another party.”

	There is nothing there that limits the ability to make an order for costs to be costs of a full or substantive hearing.  It is an unlimited jurisdiction once the conditions are met.  Here the Industrial Tribunal exercised its discretion and it sets out why it did so.  At paragraph 6 of the Tribunal’s decision we are told that there had earlier been a warning to Mr Jewkes, through the offices of ACAS, that Mr Valli, would make an application for costs because he regarded the proceedings as an utter waste of time.  Mr Valli then set out for the Tribunal what he said he had incurred in the way of costs and then, at page 4 of our papers, paragraph 7, the Tribunal said that it had little hesitation in awarding Mr Valli costs of £40.  The Tribunal continued:

“We have no doubt at all that this was a case which was frivolous, vexatious and unreasonable insofar as Mr Jewkes has never been in a position to show that he had 2 years’ continuous employment”

And it goes on to describe matters and then quantifies the costs at £40.

	It is not for us to say that had we been presented with the problem we would have exercised our discretion in the same way.  What we have to look to, rather, is to find whether there is in this particular area, some error of law.  In a discretionary matter that means showing that the Tribunal had in mind things that they should not have had in mind or failed to have in mind things that they should have had in mind.

	There is a great breadth given to a Tribunal, deliberately, by the legislature, in matters of discretion, and here we are unable to find any error of law in their conclusion and, although we recognise that Mr Jewkes is upset at the decision, we must let it stand.  We see no argument against the decision of the Tribunal and accordingly we dismiss Mr Jewkes’ appeal.