Appeal Nos UKEAT/0584/06/DA 
& UKEAT/0155/07/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 November 2007

Before
HIS HONOUR JUDGE RICHARDSON
MS U BRANNEY
MR J R RIVERS CBE

MS M JILLEY	APPELLANT

BIRMINGHAM AND SOLIHULL MENTAL HEALTH NHS TRUST
AND OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR GARY MORTON
(Of Counsel)
Pro Bono	
For the Respondent	MR TARIQ SADIQ
(Of Counsel)
Instructed by:
Messrs Browne Jacobson LLP
Solicitors
Victoria Square House
Victoria Square
Birmingham
B2 4BU	

SUMMARY

PRACTICE AND PROCEDURE

Costs

The Tribunal did not give any or any adequate reasons on the questions whether (a) it took into account the ability of the appellant to pay, and (b) if so, how it did so.  Even though it ordered detailed assessment the Tribunal retained a power to modify an order to take account of ability to pay, for example by limiting the order to a specified part of the costs or capping the amount.  Rule 41(1) and (2) of the ETR 2004 considered.

HIS HONOUR JUDGE RICHARDSON

1.	We have before us two appeals by Ms Mandy Jilley against orders for costs made against her by an Employment Tribunal chaired by Mr Dimbylow sitting in Birmingham.  Although originally Ms Jilley sought to appeal against other aspects of judgments of the Employment Tribunal all other grounds have been disposed of, and only her appeals on the question of costs have been listed for a full hearing.

Overview

2.	Miss Jilley was employed by the Birmingham and Solihull Mental Health Trust (“the Trust”) commencing on 3rd January 2004.  Her employment envisaged that she would undertake a degree course, which she commenced immediately.  In April 2004 for financial reasons she then applied to “intermit”, that is, to postpone the continuation of her degree course.  She was appointed to a staff nurse post at Denmark House within the Queen Elizabeth Psychiatric Hospital.  She complained about another member of staff, Mr D’Souza.  She was moved to a different unit at the same hospital.  From 28th May 2004 she was suspended, first on grounds relating to conduct, then from June 2005 on medical grounds.  We are told that she was dismissed on 9th October 2006.  

Proceedings

3.	There have been, in all, four sets of proceedings.

4.	The first set was commenced on 9th August 2004.  Miss Jilley complained of race discrimination, harassment and victimisation, contrary to the Race Relations Act 1976.

5.	The second set was commenced on 17th March 2005.  Miss Jilley alleged race discrimination and victimisation, although during the hearing of the proceedings the claim for race discrimination was withdrawn.

6.	These proceedings were combined and listed for a lengthy hearing commencing on 9th January 2006.  At the beginning of the hearing the Trust applied to strike out the claims.  That application, together with an application by Miss Jilley to strike out four witness statements, was heard between 9th and 13th January 2006.  The applications were both refused.  In its judgment, which was announced on 16th January but formally promulgated with written reasons on 8th February (“the first reasons”), the Tribunal found that Miss Jilley had behaved unreasonably and that it was just, fair and proportionate that she should pay the costs of the strike out application: see paragraph 36 of its reasons.  However it did not make an order at that stage, preferring to give directions for a schedule of costs and to deal with the matter at the end of the main hearing.

7.	The Tribunal then proceeded to deal with the main hearing of the first two sets of proceedings.  It heard evidence and submissions during the next two weeks in January.  At the end of the hearing it dismissed Miss Jilley’s claims in their entirety.  The Trust then made an application for costs.  The Tribunal granted that application, ordering that the Trust’s costs (which had been claimed in a schedule at, in round terms, £3,000 for the striking out application and £62,000 for the rest of the proceedings) should be referred to the County Court for a detailed assessment.  The Tribunal’s reasons are at paragraphs 79-97 of its judgment and reasons concerning these proceedings (“the second reasons”), promulgated on 15th February 2006.  Ms Jilley appeals against this judgment as to costs in appeal no EAT/0584/06.

8.	The third set of proceedings was commenced on 19th August 2005 and the fourth on 25th November 2005.  These were presented too late to be combined with the hearing of the first two sets of proceedings, but for very good reasons a case management order was made that they should be tried before the same Tribunal.  They were heard from 3rd to 10th April 2006.  By a judgment with reasons promulgated on 2nd May 2006 (“the third reasons”) these claims were also dismissed.

9.	The Trust made an application for the costs of the third and fourth set of proceedings.  That application came on for hearing on 9th June 2006.  Once again the Tribunal made an order for the whole of the costs to be paid by Ms Jilley and to be the subject of detailed assessment in the County Court.  Ms Jilley appeals against this judgment, which was promulgated with reasons (“the fourth reasons”) on 21st June 2006, in appeal no EAT/0155/07.

The preliminary hearing of the appeal
10.	At the preliminary hearing of the appeal Judge Clark said, on the question of costs:
“21.	Here we consider that the Claimant has raised arguable grounds for an appeal.  We note that she was ordered to pay the costs of the Respondent’s unsuccessful strike-out application in the first and second judgments.  She has been ordered to pay the whole of the Respondent’s costs, subject to a detailed assessment.  Three out of four of her claims post-date the inception of the 2004 Employment Tribunal Rules of Procedure which allow for a paying party’s means to be taken into account.  The Tribunal, in the second judgment, paragraph 96, set out their findings as to her modest income and capital but it is unclear to us at present whether and if so how those means were taken into account in the Tribunal’s evaluation in the first case.  The costs order of 21 June was made in the absence of the Claimant.  She attended the Tribunal, lodged some documents and then left.  It is unclear, however, from the Tribunal’s reasons what submissions were made on behalf of the Respondent which were accepted by the Tribunal in making their further costs order.”

Statutory provisions
11.	As regards the first set of proceedings, the relevant rule was rule 14 of the Employment Tribunal Rules 2001, found in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001.  This provides –

““(1)	Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party’s representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides may make-
(a)	an order containing an award against that party in respect of the expenses incurred by another party….
(3)	An order containing an award against a party (“the first party”) in respect of the expenses incurred by another party (“the second party”) shall be-
(a)	where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000.
(b)	where those parties agree on a sum to be paid by the first party to the second party in respect of those expenses, an order that the first party pay to the second party a specified sum, being the sum so agreed; or
(c )	in any other case, an order that the first party pay to the second party the whole or a specified part of the expenses incurred by the second party as taxed (if not otherwise agreed)”

12.	As regards all other proceedings, the relevant rules were within the Employment Tribunal Rules 2004, found in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.  These provide so far as relevant:
“38	General power to make costs and expenses orders
(1)	Subject to paragraph (2) and in the circumstances listed in rules 39, 40 and 47 a tribunal or chairman may make an order (“a costs order”) that –
(a)	a party (“the paying party”) make a payment in respect of the costs incurred by another party (“the receiving party”);
40	When a costs or expenses order may be made
(2)	A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply.  Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he 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 as been misconceived.
(4)	A tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction.
41	The amount of a costs or expenses order
(1)	The amount of a costs order against the paying party shall be determined in any of the following ways-
(a)	the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000;
(b)	the parties may agree on a sum to be paid by the paying party to the receiving party and if they do so the costs order shall be for the sum so agreed.
(c)	the tribunal may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be paid being specified part of the costs of the receiving party with the amount to be paid in accordance with the Civil Procedure Rules 1998 or, in Scotland, as taxed according to such part of the table of fees prescribed for proceedings in the sheriff court as shall be directed by the order.
(2)	The tribunal or chairman may have regard to the paying party’s ability to pay when considering whether it or he shall make a costs order or how much that order should be.
(3)	For the avoidance of doubt, the amount of a costs order made under paragraphs (1)(b) or (c) may exceed £10,000.”

13.	It is also relevant to say a word about enforcement.  An order of the Tribunal for the payment of costs may be registered in the County Court: see section 15(1) of the Employment Tribunals Act 1996, which provides: 
“15	Enforcement
(1)	Any sum payable in pursuance of a decision of an [employment tribunal] in England and Wales which has been registered in accordance with [employment tribunal] procedure regulations shall, if a county court so orders, be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court.”

14.	At the time of enforcement, the County Court has a wide power to take into account the ability of the paying party to pay.  Section 71 of the County Courts Act 1984 provides as follows –
“71.-	Satisfaction of judgments and orders for payment of money.
(1)	Where a judgment is given or an order is made by a county court under which a sum of money of any amount is payable, whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise, the court may, as it thinks fit, order the `money to be paid either-
(a)	in one sum, whether forthwith or within such period as the court may fix; or
(b)	by such instalments payable at such times as the court may fix.
(2)	If at any time it appears to the satisfaction of the court that any party to any proceedings is unable from any cause to pay any sum recovered against him (whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise) or any instalment of such a sum, the court may, in its discretion, suspend or stay any judgment or order given or made in the proceedings for such time and on such terms as the court thinks fit, and so from time to time until it appears that the cause of inability has ceased.”

The striking out application
15.	The Trust’s application to strike out Ms Jilley’s claims was brought on the grounds that notwithstanding a lengthy history of extensions of time Ms Jilley had never served her witness statement, nor had she agreed a bundle of documents.  It was indeed the case that she had not served her witness statement.  The Tribunal set out her excuses for not doing so in paragraphs 14 to 20 of its reasons.   In particular it rejected entirely an allegation that her failure was due to unreasonable behaviour by the Trust’s solicitor.  

16.	Ms Jilley said, however, that her witness statement was available on disk.  The Tribunal gave her an opportunity to produce it.  Eventually, the following day, she did.  

17.	In the circumstances the Tribunal undertook a classic striking out evaluation.  It considered rule 3.9 of the Civil Procedure Rules, a checklist which this Appeal Tribunal has on more than one occasion recommended as potentially useful when assessing the proportionality of striking out.  It considered whether a fair trial was still possible.  The Tribunal found, in paragraph 34, that Ms Jilley had intentionally failed to comply with the order for exchange of witness statements; that she had not complied with orders relating to disclosure of documents and agreement of a bundle; that her explanations were not good; and that the failure was completely caused by her own fault. They found her actions had caused cost and loss of hearing time.   

18.	In the result, the Tribunal found that a fair trial of the issues was still possible with careful case management, and decided in the exercise of its discretion not to strike out.  The Tribunal said it had been very close to striking out.

19.	This is the context in which the Tribunal made the decision to award costs.  

20.	Its reasoning was as follows –
“We have found that the claimant has behaved at least unreasonably, which is the threshold test in both sets of rules, the test is met.  We find that it is just, fair, and proportionate that the claimant should pay the costs of and occasioned by the strike out application.  However, we do not propose to deal with costs any further now but we will return to the assessment at the end of the Hearing.  In the meantime, we direct the respondent to serve a schedule of costs, with supporting vouchers as appropriate, and any computerised time/cost recording information, grades of fee earner, and rate of charge applicable.  We direct that this be done by 2.00pm on Friday 20 January 2006, and a further three copies are to be supplied for the tribunal.”

The first and second proceedings
21.	Ms Jilley lost the first two sets of proceedings in their entirety.  The extent of her failure appears very clearly from paragraphs 54 and 60 of the Reasons.  As regards her discrimination claims, on only one of 13 issues did she establish facts which could amount to discrimination in the absence of an explanation.  As regards her victimisation claim, she did not establish a protected act, her first complaint of race discrimination post-dating the matters which she said constituted victimisation.

22.	Further, the Tribunal made several findings adverse to Ms Jilley’s good faith.  As regards Mr D’Souza, the Tribunal found that her complaint was certainly not made in good faith.  “It was designed deliberately to get him into serious trouble” (paragraph 61).  She was seeking revenge on him (paragraph 74).

23.	Further, in making findings about the credibility of the various witnesses, the Tribunal found that Ms Jilley attempted during the hearing to manipulate the sequence of factual events, even at the expense of changing her own evidence: see paragraph 75 of the second reasons.

24.	It was against this background that counsel for the Trust made an application for costs.  He submitted that in bringing the proceedings she acted vexatiously or had behaved unreasonably or the claim was misconceived.  He put forward the schedules of costs, which amounted in total to £65,604.  He asked for detailed assessment.

25.	The Tribunal, after rejecting an application for an adjournment, listened to Ms Jilley’s submissions on the question of costs.  She challenged the findings which the Tribunal had made.  She complained that counsel for the Trust had bullied her, a complaint which the Tribunal rejected.  

26.	The Tribunal said the following concerning Ms Jilley’s means:
“The tribunal may take into account the means of a party who is being asked to pay costs.  The claimant gave an indication of her current income, outgoings, assets and liabilities.  She said that her current pay was about £1,500.00 (net) per month, but she found that this money was all accounted for in her budget and there was nothing left at the end of the month.  As to her assets, the only one that she identified to the tribunal was her property in Lincolnshire.  This has a sale price at the moment of £119,950.00.  There is a mortgage of approximately £80,000.00 upon it.  The claimant has no other assets, for example, in the form of savings, stocks, shares or other investments.  Similarly, there are no other liabilities.”

27.	The Tribunal then stated its conclusions as follows:
“Having heard both sides, we retired to consider the matter.  Our unanimous judgment on the costs application is this.  We start by acknowledging that it is unusual for a tribunal to make a costs award.  However, the claimant has behaved at least unreasonably for the reasons advanced by Mr Sadiq in support of his application for costs.  Unreasonableness is the threshold test.  It is just that the claimant be ordered to pay the respondent’s costs; and as asked by the respondent, we refer the matter to the County Court for a detailed assessment.  We found that the claims were misconceived in substantial part, and without any reasonable prospect of success, and we accept and adopt Mr Sadiq’s argument tin support of the costs application.  Some issues were malicious, and fabricated at the time, intended to harm other employees, and to bring those issues to the tribunal was vexatious.  The conduct of the claimant was such, with her scattergun approach to the number of people involved, that more work was generated than was necessary.  She had conducted the proceedings in an unreasonable way.  She has breached numerous orders, and as we have remarked before, this has been done wilfully.  It is entirely appropriate in view of our conclusions and reasons in relation to both cases to make an order for costs in respect of both cases from the date of issue of each claim form up to and including the Hearing , and we do so.”

The third and fourth set of proceedings
28.	Ms Jilley again lost the third and fourth set of proceedings in their entirety.  She altogether failed to prove her case: see paragraphs 54 and 55 of the third reasons.  Moreover the Tribunal found that the allegations founding her claim of victimisation were not made in good faith.  Again, although presenting as articulate and intelligent, the Tribunal found her an unsatisfactory witness, asserting things which were simply unsustainable on the facts: see paragraph 58.

29.	At the subsequent costs hearing Ms Jilley did not attend in person, although she delivered a bundle of documents which the Tribunal took into consideration.  The Tribunal also noted that it had some knowledge of her financial position from earlier proceedings. 

30.	The Tribunal’s conclusions were as follows:
“We apply the law to the facts and come to the following conclusions.  We confirm that as previously, the conclusions are the unanimous view of the tribunal.  We conclude that the arguments put forward by Ms Badger are persuasive.  We agree with her submissions and adopt them.  We reject the claimant’s submissions.  We find that in both sets of proceedings, the claimant has acted vexatiously, and unreasonably in bringing them.  Furthermore, the claims were misconceived when she brought them.  Also, in the conduct of the proceedings, the claimant acted at least unreasonably, which is the threshold test for an award of costs, and at time she was vexatious, and behaved disruptively.  Specific examples of these matters were drawn to the attention of the of the tribunal in Ms Badger’s submissions, and some are self-evident from the judgment and reasons from the substantive Hearing.
We acknowledge that is unusual for a tribunal to make a costs award.  However, when we consider the facts and conclusions that we gave in our judgment and reasons in the substantive Hearing, the test set out in the rules is met.  We then consider that it is appropriate.  We refer the case to the County Court for a detailed assessment as requested by the respondents.  The individual allegations brought by the claimant were not made out, and not made in good faith.  Substantial parts were simply unsustainable on the facts, and were misconceived, having no reasonable prospects of success.  Proceedings were commenced against the first and second respondents, as individuals, simply because the claimant did not agree with their decisions.  This is both unreasonable and vexatious conduct at the point of bringing the proceedings.  During the course of conducting the proceedings the claimant has behaved at least unreasonably.  She has breached numerous orders of the tribunal.  When she was sent the respondents’ witness statements she unreasonably returned them.  The claimant’s conduct at the Hearing was at least unreasonable, as demonstrated in the examples in Ms Badger’s submissions.
In coming to our judgment, we had regard to the overriding objective.  It is just, fair, and proportionate that we make this order.  On reviewing our fact finding, conclusions, and reasons, arising from the substantive Hearing, the tribunal is unanimously of the opinion, and considers that the circumstances in rule 40(3) apply.  Having so considered, the tribunal makes a costs order against the claimant, as we consider it appropriate to do so.”

Submissions
31.	In a skilful and well deployed argument on behalf of Ms Jilley, Mr Morton presented essentially the following submissions.

32.	Firstly, he submitted that the orders for costs were quite exceptional in nature.  He referred us to Gee v Shell UK Ltd [2003] IRLR 82 at paragraph 35 where Sedley LJ said –

“It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers, and that – in sharp distinction from ordinary litigation in the United Kingdom – losing does not ordinarily mean paying the other side’s costs.”

33.	This, he submitted, applied with particular force to the Tribunal’s decision to order payment of the costs of the striking out application.  It was the Trust’s decision to bring that application.  If it was unsuccessful it should bear its costs of bringing the application.

34.	Secondly, he submitted that the Tribunal had not dealt properly or adequately with the question of Ms Jilley’s means.  These were relevant to the second, third and fourth sets of proceedings.  The Tribunal had evidence that her capital was limited to some £40,000 at most, and to a modest monthly net income.  There is nothing to indicate that the Tribunal rejected or doubted her evidence on this point.  Yet the Tribunal awarded the whole of the Trust’s costs, which (though subject to detailed assessment) were likely to exceed by far the capital she had available.  No reasons were given for making such an order.  He submitted that it is generally undesirable for a Tribunal to make large awards for costs when it is clear on the information before it that an award cannot be enforced.  He pointed out that there was no cap of any kind on the order; it was unclear whether the Tribunal appreciated that it had a power to cap the award even if it was sending the award for detailed assessment.

35.	As Mr Morton made his submissions on this second point, Mr Sadiq on behalf of the Trust stood to make a concession.  He accepted that on both occasions when it made costs orders the Tribunal’s reasons did not deal adequately with the question whether the Tribunal took into account the means of Ms Jilley, and if so how. 

36.	Both counsel made submissions to us on the matters which the Tribunal would have to address on remission, which are complicated by the fact that the first set of proceedings were made under the 2001 Rules.

37.	Both counsel made submissions to us on the question whether remission should be to the same, or to a different, Tribunal, having regard to the well known criteria in Sinclair Roche Temperley v Heard [2004] IRLR 763.  Mr Morton submitted that remission should be to a different Tribunal.  The Tribunal had made substantial awards of costs already, and it would be difficult for the Tribunal to approach the matter independently.  Further, the Tribunal had made severe findings against Ms Jilley and it would be difficult for her, as a litigant in person, to appear again before the same Tribunal.  Mr Sadiq submitted that remission should be to the same Tribunal, which has unrivalled knowledge of the case and which may have to consider a question of apportionment of costs, to which we shall come.

Our conclusions
38.	Subject to the question of Miss Jilley’s means, we do not think there is any error of law in the Tribunal’s reasoning in respect of costs.  The Tribunal directed itself that an award of costs was unusual.  However the Tribunal directed itself to the correct statutory provisions, found that the threshold was crossed, and found that an order for costs was entirely appropriate.  These are conclusions which the Tribunal was entitled to reach, and which involve no error of law.   There is an appeal to the Appeal Tribunal only on a question of law.  Again, subject to the question of Miss Jilley’s means, we consider that the reasons properly and adequately explain the decisions.  In particular, even though the Tribunal do not set out the submissions they received at the last costs hearing, a point to which Judge Clark adverted, paragraph 7 of the reasons sufficiently explains why they reached their conclusions.

39.	We will say a word about the costs of the striking out application, in deference to Mr Morton’s submissions on that issue.  The striking out application was brought because Ms Jilley had failed to comply with the order for exchange of witness statements and she had not complied with orders relating to disclosure of documents and agreement of a bundle.  The Tribunal found that her explanations were not satisfactory, and that the failure was her own fault.  These finding are all made in paragraph 34 of the Tribunal’s reasons.  

40.	In these circumstances the striking out application was the appropriate way to bring Ms Jilley’s defaults before the court.  It was brought because of her unreasonable conduct of the litigation.  The Tribunal was right to apply, by way of analogy, rule 3.9 of the Civil Procedure Rules because Ms Jilley was liable to have the sanction of striking out imposed and the question for the Tribunal was whether or not to impose that sanction. The Tribunal was close to striking out her claim, and if she had not had her witness statement available on disk it would probably have done so.

41.	In these circumstances we consider that the Tribunal was fully entitled to conclude that Ms Jilley ought to pay the costs of the application.  The threshold for making the order was satisfied.  Ms Jilley had conducted herself unreasonably.  The costs of the hearing were related to her unreasonable behaviour.

42.	We then to the question whether the Tribunal has dealt adequately with the means of Ms Jilley. 

43.	We agree with the submission of Mr Morton and the concession of Mr Sadiq that the Tribunal has not dealt adequately with the question of Ms Jilley’s means.  

44.	Rule 41(2) gives to the Tribunal a discretion whether to take into account the paying party’s ability to pay.  If a Tribunal decides not to do so, it should say why.  If it decides to take into account ability to pay, it should set out its findings about ability to pay, say what impact this has had on its decision whether to award costs or on the amount of costs, and explain why.  Lengthy reasons are not required.  A succinct statement of how the Tribunal has dealt with the matter and why it has done so is generally essential.

45.	In this case the Tribunal has not provided any such explanation.  It has made an order for detailed assessment, knowing that even if the costs are substantially reduced at the detailed assessment they are still likely to be beyond the ability of Ms Jilley to pay them.  We do not say the Tribunal is not entitled to take such a course; but reasoning is required if it is to be taken.

46.	It occurred to this Appeal Tribunal, in the course of argument, that the Tribunal might have taken the view that, if costs were to be the subject of detailed assessment, it was solely for the County Court to take account of ability to pay.  If the Tribunal took that view it was in our judgment wrong.  Even if a Tribunal orders detailed assessment it is entitled, in the exercise of its discretion, to make an order for costs which takes account of ability to pay.  It can, for example, order that only a specified part of the costs should be payable: see rule 41(1)(c).  

47.	Moreover rules 41(1) and (2) taken together are wide enough, in our judgment, to allow a Tribunal to take account of ability to pay by placing a cap on an award of costs even where it orders a detailed assessment.  Particularly if a Tribunal is satisfied that a paying party has been frank as to his means, it may be positively desirable to do so.  It may, for example, render it unnecessary to go through the expense of a detailed assessment, or assist parties to reach terms of payment.

48.	It follows that this matter will have to be remitted.  On remission the Tribunal should exercise its discretion afresh on the question whether to take into account means, and if so how.  It is convenient next to consider the questions which will arise on remission.

49.	One issue is specific to this case.  

50.	In respect of the 2001 Rules the Tribunal may not take into account the means of a litigant: see Kovacs v Queen Mary and Westfield College [2002] IRLR 414.  Where the 2001 Rules apply, ability to pay may be taken into account by the County Court under section 71: see the judgment of Simon Brown LJ at paragraph 16 and of Chadwick LJ at paragraph 33.

51.	At the moment there is a composite claim in respect of the first and second set of proceedings.  But the 2001 Rules apply to the first set of proceedings.  In this case, therefore, it is common ground that the Tribunal will have to make a broad assessment of what proportion of the Trust’s costs apply to the first set of proceedings as opposed to the second.  Only in this way will it know what (at maximum) Ms Jilley may be facing in respect of the first set of proceedings before it considers whether and how to take account of ability to pay in the second, third and fourth set of proceedings.  

52.	Once that matter has been considered, the Tribunal will then need to address rule 41(2). 

53.	The first question is whether to take ability to pay into account.  The Tribunal has no absolute duty to do so.  As we have seen, if it does not do so, the County Court may do so at a later stage.  In many cases it will be desirable to take means into account before making an order; ability to pay may affect the exercise of an overall discretion, and this course will encourage finality and may avoid lengthy enforcement proceedings.  But there may be cases where for good reason ability to pay should not be taken into account: for example, if the paying party has not attended or has given unsatisfactory evidence about means.  

54.	A question for the Tribunal in this case will be whether to take into account means given that in any event it has no power to do so in respect of the first proceedings.  It may or may not be desirable to do so; it will depend on the submissions which are made to the Tribunal.  If the Tribunal decides not to take means into account, it should express that conclusion, and say why.

55.	If the Tribunal decides to take means into account, it will then need to set out its findings about ability to pay, decide whether to make a costs order at all in the light of the paying party’s means, and if it does what the order should be; and it give succinct reasons for its conclusions.

56.	We turn finally to the question whether remission should be to the same, or to a different, Tribunal.  We have considered with care Mr Morton’s excellent submissions to us.  But we conclude that remission should be to the same Tribunal, so long as it is available.  The matter concerns the Tribunal’s failure to deal properly with one discrete point in lengthy and complex proceedings with which it was seized over a substantial period.  It is not even necessary or appropriate, in the light of our findings, to re-open the whole question of costs; it is simply the question of whether ability to pay should be taken into account by the Tribunal.  The Tribunal is in a far better position than any fresh Tribunal would be to consider these matters.  We have no doubt that the Tribunal will approach the remitted issue with what was described in Sinclair Roche Temperley as “Tribunal professionalism”.  We appreciate that Ms Jilley lost before the Tribunal, and was criticised by the Tribunal; and also that she made, and withdrew somewhat reluctantly, an allegation of bias.  But it is in the nature of costs applications that they are made against the losing party; and we are satisfied that the remaining aspects of costs should be dealt with by the same Tribunal if it is available.  We emphasise that the focus of the hearing will be on the issue concerning ability to pay.  It will neither be necessary nor appropriate to re-open other issues, strongly though Ms Jilley may feel about them.