THE HONOURABLE MR JUSTICE SUPPERSTONE
1.
On 24 and 25 October 2011 an Employment Tribunal sitting at Southampton, chaired by Employment Judge Cowling heard a claim by the Appellant that the
Respondent company had unlawfully discriminated against him on the grounds of
age and race. The basis of the claim is that the Appellant, during 2009, made
several unsuccessful applications for employment with the Respondent. The
Appellant is Asian and at the relevant time he was 49 years of age. By a
Judgment at the end of the hearing, the Tribunal dismissed all the Appellant’s
claims and the Respondent made an application for costs. The Appellant was
ordered to pay £10,000 towards the Respondent’s costs. Reasons were requested
and were sent to the parties on 10 February 2012.
2.
The Appellant appeals against both the Tribunal’s decisions to dismiss
his claims and to order him to pay £10,000 towards the Respondent’s costs. At
this hearing Mr Baskaran appears in person in relation to his appeal
against the Judgment on the substantive claims. Mr Paul Epstein QC,
on a pro‑bono basis appears on the Appellant’s behalf in relation to the
appeal against costs - we are very grateful to him for doing so.
Mr Paras Gorasia, who appeared for the Respondent before the Tribunal
appears today for the Respondent only in relation to the costs appeal.
However, he has given us assistance with regard to how matters progressed
before the Tribunal for which we are very grateful.
3.
We shall consider first the appeal against the Judgment on the
substantive claims and then the appeal against the costs order. By a Notice of
Appeal lodged with this Tribunal on 5 November 2011, prior to receipt
of the written reasons, the Appellant appealed both against the decision
dismissing his claims and against the costs Judgment. He subsequently lodged
an amended Notice of Appeal following receipt of the written reasons. That
appeal was rejected by HHJ McMullen QC, on 13 April 2012, on the
basis the Notice of Appeal disclosed no point of law with a reasonable prospect
of success. A further Notice of Appeal was lodged by the Appellant on
24 May 2012, but that too was rejected by HHJ McMullen on
18 June on the basis that it disclosed no error of law in the Tribunal’s
decisions.
4.
The matter then came before Underhill J, as he then was, on
16 January 2013 on a rule 3(10) application. At paragraph 9 of
his Judgment, Underhill J describes the principal theme that appears from
the fresh Notice of Appeal, the details of which, as he describes, are
extremely opaque. It is that the Appellant believes that he was not given all
the information that was required to present his case fairly. In particular,
the Judge says:
“[…] (1) there was a long delay on the part of the Respondent in
lodging a trial bundle; (2) he did not receive a supplemental bundle of
documents giving details of the successful candidates for the jobs for which he
had applied until a few days before the hearing in October 2011; and (3)
he did not receive the Respondent’s witness statements until the day of the
hearing. He says that he asked for an adjournment for those reasons but it was
refused. These points do not, as I have said, appear clearly from the Notice
of Appeal but I have elicited them from the Appellant.”
5.
As for the first of those complaints Underhill J rejected it on the
basis that whatever the rights or wrongs of it, it is of no significance in the
event because it is common ground the bundle was sent to the Appellant on
23 May arriving the following day, which was almost five months before the
eventual hearing. The Judge did, however, consider points (2) and (3) if they
were well founded might conceivably raise a ground of unfairness. The Judge
did not, he said, have clear and authoritative material before him from which
he could assess what the Appellant was telling him. The Judge said he viewed
with considerable scepticism the Appellant’s complaints about the procedure but
he did not feel that he would be justified in dismissing this aspect of the
appeal on the material he had before him. The Judge made clear at
paragraph 12 of his Judgment that he should not be taken to have decided
that the Appellant had raised an arguable point. At paragraphs 13 to 16
of his Judgment the Judge gave directions to enable the Tribunal to get to the
bottom of what happened.
6.
Pursuant to those directions, albeit seven days late, amended grounds of
appeal were lodged on 28 January 2013, by letter dated
25 February 2013 this Tribunal wrote to the Appellant informing him
that despite the delay Underhill J was prepared to grant the necessary
extension. However, the Judge did not approve ground 4 headed, “Substantive
Tribunal Decision Error”, which did not correspond to any ground which the
Judge said he was minded to proceed. Accordingly, the appeal proceeds on
heading (1) and grounds (1) to (3) of the amended grounds.
7.
Referring to the witness statement, dated 4 February 2013 that
the Appellant filed, again, pursuant to the Judge’s directions, the letter from
this Tribunal of 25 February 2013 informed the Appellant that
paragraphs 33 to 41 of that statement would be disregarded as they were
directed at ground 4, which the Judge disallowed.
8.
Ground 1 of the Appellant’s proposed grounds of appeal dated
4 February 2013 is headed, “Relevant documentation” and concerns the
supplemental bundle of documents giving details of the successful candidates
for the jobs, for which the Appellant had applied. Ground 2 relates to the
Respondent’s witness statements that the Appellant says he only received
shortly before the hearing on 24 October 2011 because they were sent to
his old email address. Ground 3 is headed, “Application to adjourn” and
reads as follows:
“ — in the light of late disclosure and late service of witness
statements, and perceiving himself to be at a substantial disadvantage, the
Appellant applied for the Hearing to be adjourned to allow him proper
opportunity to prepare. This application was refused by the Employment
Tribunal but the reasons given did not address his concerns regarding late
disclosure of the supplemental bundle and the Respondent’s witness statements.”
9.
On 25 February 2013, pursuant of the directions of
Underhill J, this Tribunal sent to Judge Cowling the new grounds of appeal
and the Appellant’s witness statement. Judge Cowling replied by letter
dated 2 April 2013. In relation to ground 3 the Judge wrote:
“I do not recall the Appellant making an application for the
case to be postponed at the commencement of the Hearing and my notes do not
support his contention.”
10.
We note that there is no reference to the Appellant having made an application
to adjourn the hearing in his witness statement dated 4 February 2013
(see pages 46 to 56 of the bundle). In a supplementary witness statement
of the date, (see pages 64 to 68) at paragraph 4 (page 67) the
Appellant says prior to the hearing he raised the issues of late service of the
Respondent’s witness statements and of the supplementary bundle and that he
could not prepare his witness statement without them, and that he asked the
Tribunal Judge to take “appropriate action”. He does not say what appropriate
action he wanted the Tribunal to take, and he does not say that he made an
application for an adjournment. We reject this ground.
11.
As for ground 1, late service of a supplementary bundle containing
documents relating to comparators, Mr Flanagan, a partner in the firm of
solicitors acting on behalf of the Respondent deals with this in his witness
statement dated 18 March 2013. At paragraph 8 he says that his
firm sent a bundle for the hearing to the Appellant on 4 June 2010, an
updated bundle on 23 May 2011 and a further bundle on
14 October 2011. Mr Flanagan’s statement continues:
“9. There is then the issue of what he refers to as the
‘supplementary bundle’ which he accuses us of sending him very late in the
day. That bundle was actually comprised of documents he had served late
in the day and which we, as a gesture of goodwill and with a view to assisting
the Tribunal, put it in bundle form for him. It is made clear to him within an
email of 21 October 2011 [EFF4] that it is his responsibility
to seek the Tribunal’s permission to have the overall bundle extended
(Southampton being one of the areas where it is routinely directed that the
bundle can only extend to a certain number of pages). It is disappointing,
though not surprising, that Mr Baskaran now criticises us for the
assistance we provided him.
10. I also note that on an earlier occasion in
September 2011 Mr Baskaran served upon us 23 documents which he
said needed to be added to the bundle. Eighteen already were in the bundle and
the five that were not were ‘out of office’ emails.”
12.
We have read the Appellant’s response to these paragraphs at paragraphs
6 to 9 of the Appellant’s supplementary witness statement dated
4 February 2013. It is difficult to understand how that supplementary
witness statement could have been made on that date when it includes the
response to Mr Flanagan’s witness statement which was only made on
19 March 2013. In any event, the Appellant provides no satisfactory
response to the points made by Mr Flanagan.
13.
Judge Cowling in his observations in the letter dated
2 April 2013 from the Employment Tribunal refers to a discussion in
relation to the addition of a supplementary bundle at the commencement of the
hearing. He says the Tribunal decided it would be unreasonable at that late
stage to permit either of the parties to add further documents to the bundle.
The Tribunal considered that the main bundle contained all those documents
relevant to the issues to be determined by the Employment Tribunal. The bundle
about which the Appellant makes a complaint appears, therefore, not to be that
bundle but the further bundle that Mr Flanagan says was sent to the
Appellant on 14 October 2011. In any event, Judge Cowling says
that:
“[…] Before we began hearing his evidence we were satisfied that
the Appellant had become familiar with the documents in the main bundle, had
been given an opportunity to read the witness statements and was in a position
to deal with the issues.”
14.
That, in effect, answered ground 2, the alleged late delivery of
the Respondent’s witness statement. At paragraph 5 of his supplemental
witness statement, responding to Mr Flanagan’s witness statement, the Appellant
said he could not access the witness statements, sent to his old email address
at that time due to malfunction. He says:
“[…] it was later identified in fact the respondent did send the
witness statement to my old email on 24th of May 2011.”
15.
But he was unaware of this. Mr Flanagan says at paragraph 7
of his witness statement that the Appellant did not notify his firm that he had
changed his email address. In any event, as Judge Cowling noted, the
Tribunal satisfied itself that the Appellant, before he gave his evidence, had
had an opportunity to read the witness statements and was in a position to deal
with the issues. The Judge said that overnight at the end of the first day the
Appellant had ample time to re-read and consider all the Respondent’s witness
statements before his cross‑examination of the Respondent’s witnesses began
on the second day of the hearing. The Judge concludes his observations by
saying:
“During cross‑examination the Appellant showed himself
perfectly capable of understanding the issues and of challenging the evidence
of the Respondent’s witnesses appropriately. Although he bemoaned the fact
that none of his job applications were successful, the Appellant did not
suggest to any of the witnesses that they or the Respondent had discriminated
against him whether on the grounds of race, age or otherwise.”
16.
We have had regard to the skeleton argument that Mr Baskaran has
prepared for this hearing. In his oral submissions he referred us to the case
of Jones v Corbin T/A Boo UKEAT/0504/10 and
in particular to paragraph 20 of the Judgment. The Judgment of the Tribunal
was set aside because of non‑compliance with directions made at a case management
hearing. That case, as does each case, turned on its own facts. As such the
decision does not assist the Appellant. In our judgment, none of the grounds
of appeal set out in the document dated 4 February 2013 fell pursuant
to the order of Underhill J, disclose any point of law with a reasonable
prospect of success. The grounds of appeal are, in our view, not arguable.
Accordingly this appeal is dismissed.
17.
We turn then to consider the appeal against the costs order.
Rule 40(2) and (3) of the Employment Tribunals (Constitution and Rules
of Procedure) Regulations 2004 provide:
“40(2) A Tribunal or Employment Judge shall consider making a
costs order against a paying party where, in the opinion of the Tribunal or
Employment Judge (as the case may be), any of the circumstances in
paragraph (3) apply. Having so considered, the Tribunal or Employment
Judge 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 has been misconceived.”
18.
In Yerrakalva v Barnsley Metropolitan Borough Council
[2012] ICR 420 Mummery LJ stated at paragraph 9:
“9. An appeal against a costs order is doomed to failure, unless
it is established that the order is vitiated by an error of legal principle, or
that the order was not based on the relevant circumstances. An appeal will
succeed if the order was obviously wrong. As a general rule it is recognised
that a first instance decision‑maker is better placed than an appellate
body to make a balanced assessment of the interaction of the range of factors
affecting the court’s discretion. This is especially so when the power to
order costs is expressly dependent on the unreasonable bringing or conduct of
the proceedings. The Employment Tribunal spends more time overseeing the
progress of the case through its preparatory stages and trying it than an
appellate body will ever spend on an appeal limited to errors of law. The
Employment Tribunal is familiar with the unfolding of the case over time. It
has good opportunities for gaining insight into how those involved are
conducting the proceedings. An appellate body’s concern is principally with
particular points of legal or procedural error in Tribunal proceedings, which
do not require immersion in all the details that may relate to the conduct of
the parties.”
19.
At paragraph 41 Mummery LJ said:
“41. The vital point in exercising the discretion to order costs
is to look at the whole picture of what happened in the case and to ask whether
there has been unreasonable conduct by the Claimant in bringing and conducting
the case and, in doing so, to identify the conduct, what was unreasonable about
it and what effects it had.”
20.
In respect of the Tribunal’s award of costs, the Notice of Appeal
identifies four grounds of appeal. First, to the extent that the award of
costs was based upon the finding that the Appellant’s bringing of his claim was
unreasonable or that the claim was misconceived that conclusion was founded
upon the characterisation of the Appellant as a “serial litigant”. That
characterisation was perverse (if it is to suggest that any past cases brought
by the Appellant demonstrated bad faith), and/or insufficient to justify an
order for costs in these circumstances.
21.
Second, if the Appellant succeeds in the first ground, the Tribunal’s
order that it should pay costs to the Respondent fails to set out any causal
link between the Appellant’s conduct of the proceedings, (the remaining basis
of the Tribunal’s costs order) and the award of costs actually made.
22.
Third, as to the amount of the costs order, having rightly decided to
consider the Appellant’s means, the Tribunal ought properly to have ensured that
he had been given sufficient notice that he would need to give evidence as to
his means and sufficient time to adduce any relevant material in this regard.
23.
Fourth, in carrying out its summary assessment of the Respondent’s
costs, the Tribunal ought properly to have ensured that the Appellant had been
given sufficient notice of the Respondent’s costs schedule and reasonable
opportunity to address it (which he had not as he was only handed it when it
was handed to the Tribunal at the time of the costs application) and the
Tribunal ought to have set out some explanation for its summary assessment.
24.
We shall consider each ground in turn. Ground 1: Mr Epstein
submits that the Tribunal erred in basing its finding at paragraph 53 of
its Reasons that the Appellant acted vexatiously and unreasonably and that the
claims were misconceived on the characterisation of the Appellant as a serial
litigant. In our judgment, on a proper reading of the Tribunal’s reasons, the
finding of the Tribunal was not so based. Paragraph 53 makes clear that
in reaching its conclusion the Tribunal properly took into account all the
circumstances in this case. The reference in the next sentence in
paragraph 53 to the Tribunal taking into account the Appellant’s:
“previous knowledge and experience of bringing claims of age and
race discrimination against other employers and different Employment Tribunals”
is made in the context of noting that he was unrepresented in
these proceedings and, we think, for the purposes of considering whether his
conduct can be explained by the fact that he was unrepresented in these
proceedings.
25.
Mr Epstein points to the fact that in Mr Gorasia’s oral
submissions on costs he referred to the Appellant as being a serial litigant. However,
significantly, at no point in its Reasons, when dealing with the costs
application, does the Tribunal indicate that its finding that the Appellant
acted vexatiously and unreasonably, and the bringing of the proceedings has
been misconceived, was based in whole or in part on the Respondent’s contention
that the Appellant is a serial litigant. In any event, in our view, there is
no finding by the Tribunal that the Appellant is a serial litigant. Having
referred in paragraphs 47 and 48 of its reasons to the evidence that it had
heard about previous claims of age and race discrimination brought by the
Appellant against other organisations which have rejected his applications for
employment, the Tribunal, noting the results of some of those claims, observed
at the end of paragraph 48:
“This series of events lends credence to the Respondent’s
submission that not only could the Claimant be described as a serial job
applicant but also a serial litigant.”
26.
We reject Mr Epstein’s submission that this amounts to a finding by
the Tribunal that the Appellant is a serial litigant.
27.
In our view, the findings made by the Tribunal plainly entitled the
Tribunal to make an order for costs against the Appellant. We have regard in
particular to the following passages in the Tribunal’s Reasons. First,
although the Appellant cross‑examined all the Respondent’s witnesses, he
never suggested to any of them during cross‑examination that they or the
Respondent had discriminated against him whether on the grounds of race or age
or otherwise (paragraph 41). Second, in making his applications for
employment with the Respondent, the Appellant adopted a scattergun approach.
If the Respondent advertised a vacancy he would apply to fill it whether or not
he was suitably qualified for the post. A good example was the Appellant’s
application for the post of Field Engineer at the Respondent’s St Alban’s
office. His claim that he failed to secure the post on the grounds of either
age or race lacked any credibility (paragraph 43). Third, the Appellant
failed to discharge the onus of proof on him to adduce evidence from which the
Tribunal could conclude that the Respondent had committed an act of
discrimination (paragraph 50).
28.
Ground 2; the grounds of appeal suggest that this ground only
arises for consideration if the Appellant succeeds on ground 1, which in
our view he does not. However, Mr Epstein submits that there is a
discrete point with regards to the following sentences in paragraph 53 of
the Tribunal’s decision:
“We have also taken into account the Claimant’s failure to
comply with Case Management Orders including his failure to provide a witness
statement which has added to the difficulties in determining his claim. It has
also added to the costs incurred by the Respondent.”
29.
Mr Epstein submits that contrary to the approach an Employment
Tribunal is required to adopt in accordance with Yerrakalva, the
Tribunal failed to specify what costs were attributed to these failures. In
our view, the Tribunal identified the conduct which lead to increased work for
the Respondent, which resulted in increased costs. It would, in our view, be
unrealistic to require Tribunals to state precisely what costs are attributable
to such conduct. In any event, we think that these sentences in
paragraph 53 are part of the Tribunal’s general reasoning in support of
their decision to make a costs order. The Tribunal was, in our view, entitled
to take into account the Appellant’s failure to comply with case management orders,
to conclude that that added to the difficulties in determining the claim and to
find that added to the costs incurred by the Respondent.
30.
We agree with Mr Epstein that it is convenient to take grounds 3 and
4 together, since they raise similar procedural points. At the rule 3(10)
Hearing, Underhill J expressed the view at paragraph 5 of his
Judgment that there may be a point of some general importance about what is a
fair procedure to adopt in a case such as the present, where at the conclusion of
a hearing an application for costs is made, which in the circumstances of the
particular case may call for some substantial inquiry into either the quantum
of the amount sought or the means of the party against whom the order is
sought. In the present case what happened was that at the conclusion of the
substantive hearing the parties withdrew and then returned after a short
interval when the Tribunal announced its decision.
31.
At that point Mr Gorasia made an application for costs.
Mr Gorasia told us that there was no advance notice of the application and
that the first the Claimant would have known of it was when in the break
between the conclusion of the hearing and when the parties were called back
before the Tribunal to hear the decision he handed, or at least attempted to
hand, to the Appellant a copy of the Respondent’s costs schedule, which he said
the Appellant did not want to accept. There may be a dispute about this
particular point, but nothing turns on it.
32.
Mr Gorasia and the Appellant confirm that the application for costs
was made and proceeded in the way set out in the Chairman’s notes of evidence,
which appear at pages 72 to 74 in the bundle. The Tribunal invited the
Claimant to give evidence of his means, which he did. The Tribunal found (paragraph 55)
that the Appellant’s evidence in relation to his means was “indecisive and
lacked credibility” for the reasons set out at paragraphs 55 and 56 of the
Judgment. In addition to noting the inconsistencies in his evidence, the
Tribunal criticised the Appellant for producing no documents to support his
financial circumstances and for not giving any clear indication of his
financial circumstances or means. The Tribunal then took into account his
inability to give any clear evidence in relation to his ability to pay as part
of the reason for ordering that he pay the Respondent the sum of £10,000 as a
contribution towards the Respondent’s costs. However, as Mr Epstein
observes, the Tribunal made no express finding as to the Appellant’s ability to
pay. In paragraph 56 of the decision the Tribunal merely states, insofar
as is material:
“Bearing in mind […] his inability to give any clear evidence to
the Employment Tribunal in relation to his ability to pay we are unanimously of
the view that the Claimant be ordered to pay to the Respondent the sum of £10,000
as a contribution towards the costs of £28,007.04 which the Claimant has caused
the Respondent to incur in defending this claim.”
33.
Rule 41(2) of the Employment Tribunals (Constitution and Rules
of Procedure) Regulations 2004 provide:
“41.(2) The Tribunal or Employment Judge 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.”
34.
Mr Epstein referred us to a number of authorities on the procedure
to be adopted if the Tribunal does have regard to a party’s ability to pay. In
Oni v NHS Leicester City [2013] ICR 91,
HHJ David Richardson made two general observation with which we agree:
“45. First, whether or not it is obligatory to do so as a matter
of law, Doyle [that is Doyle v Northwest London Hospital NHS Trust
UKEAT/0271/11] shows the wisdom of the Tribunal raising, at the very least in a
case where the costs are substantial, the question of means.
46. Secondly, litigants in person, even if they appreciate that
the Tribunal may take their means into account, may not know what to do in
order to prepare for that issue. They may think it will be sufficient to make
a submission on the question to the Tribunal. Tribunals are likely to require
more; but litigants will not necessarily know that. If the Tribunal does not
take means into account, and the case subsequently goes to the county court,
the form upon which the paying party will set out his or her means is form EX
140. A possible solution to this problem, at least where the Tribunal is
giving directions in advance relating to a costs hearing, is to say that a
party who wishes his or her means to be taken into account should complete this
form.”
35.
Mr Epstein submits, and we agree, that the reasoning underlying Oni
suggests that as a matter of fairness a litigant in person who elects to give
evidence of his means ought to be given sufficient time to enable him to
assemble the material information in order to do so. What is relevant time
will depend on the facts of the case. The relevant factors will include the
amount of costs ordered and the litigant’s grasp of English. We also accept
Mr Epstein’s submission that in relation to costs sought by the receiving
party the paying party must have sufficient time to consider the amount of
costs sought. Again, what is sufficient time will depend on the facts of the
case. It is likely to include whether the receiving party has given the
litigant in person notice of the amount of its costs and an opportunity to
query or challenge them (see Rogers v Dorothy Barley School UKEAT/0013/12 at paragraph 9).
36.
In Jilley v Birmingham and Solihull Mental Health NHS Trust
UKEAT/0584/06 and 0155/07 this Tribunal said at paragraph 44:
“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.”
37.
In the recent case of Howman v Queen Elizabeth Hospital
EAT/0509/12 Keith J said at paragraph 13 in relation to rule 41(2)
of the Rules:
“13. […] Obviously, that discretion has to be exercised in a
judicious and measured way, bearing in mind that as a general rule it is not appropriate
to make an order which simply cannot be complied with.”
38.
We wish to emphasise that in a case such as the present one in
particular where the party against whom the order is sought is self‑represented
the Tribunal needs to consider with care whether the procedure it is adopting
is fair. In our view, the procedure adopted by the Tribunal in the present
case was defective and unfair to the Appellant. We accept the submission of
Mr Epstein, with which Mr Gorasia did not dissent, that in a case such
as the present when no advance notice is given of a costs application and the
paying party is self‑represented, it would usually be appropriate to
adjourn the costs hearing. This is particularly so when such a person has
difficulty with the English language, as in the present case, and substantial
costs are being sought. The party against whom costs are being sought must be
given a proper opportunity to consider the application, any costs schedule that
is produced and any evidence that he wishes to adduce as to his means. The
application for costs can then proceed by way of written submissions unless
either party requests an oral hearing.
39.
On 10 November 2011 the Appellant applied for a review of the
Tribunal’s decisions, including the award of costs (see Appellant’s letter at
pages 116 to 121). The review hearing took place on
29 March 2012 before Employment Judge Cowling, who confirmed the
earlier decisions. Mr Gorasia and the Claimant have informed us that
there was an oral hearing at which they both attended and that the Claimant
gave evidence on the issue of costs. No further evidence has been adduced on
this appeal by the Appellant in relation to his ability to pay, save for three
pages at the end of the bundle relating to a statement of account that takes
the matter no further, and no further submissions have been made about that
matter or about the Respondent’s schedule of costs.
40.
As there has been a review hearing, we have given careful consideration
as to whether there is any point in remitting the issue of quantum to the
Tribunal for reconsideration. On balance we think that we should do so on the
basis that the procedure before the Tribunal at the original costs hearing was
defective and that the issue of quantum should be considered afresh. There is
no reason why this case should not be remitted to the same Tribunal and every
reason why it should. Accordingly, we allow this appeal to that limited extent
and remit the issue as to the amount of any costs award to the Tribunal for
reconsideration. We wish to make it clear, if it is not already clear, that
the jurisdiction of the Tribunal to make a costs award is not to be reopened.
41.
We refuse permission to appeal. The grounds of appeal before this
Tribunal were not arguable and disclosed no error of law in the Employment
Tribunal decision. There are no arguable grounds of appeal with any realistic
prospect of success for the reasons that we have already given.
