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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Oni v NHS Leicester City (formerly Leicester City Primary Care Trust) (Practice and Procedure : Costs) [2012] UKEAT 0144_12_1209 (12 September 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0144_12_1209.html Cite as: [2012] UKEAT 144_12_1209, [2013] ICR 91, [2012] UKEAT 0144_12_1209 |
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
Judgment handed down on 12 September 2012
Before
HIS HONOUR JUDGE DAVID RICHARDSON
MR A HARRIS
MR S YEBOAH
MRS M ONI APPELLANT
NHS LEICESTER CITY (FORMERLY LEICESTER CITY PRIMARY
Transcript of Proceedings
JUDGMENT
APPEARANCES
(of Counsel) Direct Public Access Scheme |
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(of Counsel) Instructed by: Messrs Bevan Brittan LLP Interchange Place Edmund Street Birmingham B3 2TA |
SUMMARY
PRACTICE AND PROCEDURE – Costs
1. The Employment Tribunal should have recused itself from hearing an application for costs, given opinions which it expressed when giving reasons for deciding the case against the Claimant. A Tribunal dealing with the question of liability can and should express itself fully and properly on that issue, making if called for trenchant findings about credibility, and explaining if necessary a case management decision during the hearing even if this involves expressing views about the reasonableness of the conduct of a party which led to the case management decision in question. A Tribunal should not however reach or express concluded views which really anticipate arguments on the question of costs which have not yet been put before it. Porter v Magill [2002] 2 AC 357, Locabail v Bayfield Properties [2000] QB 451 and R v Oshungbure [2005] EWCA Crim 709 considered.
2. The Employment Tribunal’s finding that the Claimant had means to pay an order for costs (anticipated to be very substantial in amount) could not stand in the absence of proper consideration of her means when the Claimant had asserted she was of limited means. (Suggestion that Tribunals may consider the use of County Court form EX 140 where directions are given in respect of applications for costs orders.)
HIS HONOUR JUDGE DAVID RICHARDSON
1. This is an appeal by Mrs Merle Oni (“the Claimant”) against a judgment of the Employment Tribunal sitting in Leicester (Employment Judge Ahmed presiding) dated 22 June 2011. By its judgment the Tribunal ordered the Claimant to pay the entire costs of proceedings which she brought against NHS Leicester City (formerly Leicester City Primary Care Trust) (“the Respondent”), such costs to be determined by detailed assessment in the County Court. It was anticipated that the amount of costs would be very substantial.
The background
The Tribunal’s liability judgment
5. The Claimant’s claims were constructive unfair dismissal, direct race discrimination and victimisation. They occupied the Tribunal for 13 days in August and December 2010. There was a substantial list of issues. She was at all material times represented by her husband, Dr Oni.
“173. We are satisfied that the allegations of race discrimination are without foundation and should be dismissed. In evidence when Mrs Oni was repeatedly asked why she believed a particular act to have been done because of her race there was either no answer or no satisfactory answer. We have serious concerns as to the genuineness of these complaints. It must have been reasonably apparent to both Mrs Oni and Dr Oni, both highly educated and intelligent individuals, that these lengthy, detailed and extensive allegations had no real prospect of success.”
“178. We therefore have serious concerns as to the basis of the claimant’s allegations of both discrimination and constructive dismissal beyond 17 June 2008. Discrimination was not cited as an issue until much later. We do not accept that she had any genuine desire to return to work despite her verbal and written assurances. At each and every opportunity the claimant or her husband frustrated any prospect of a return to work. There was no genuine or intention to ever return to work.”
10. As to the Claimant the Tribunal said:
“185. The cross-examination of the claimant took a number of days, a matter which Dr Oni objected to at various times. However, the primary reason was the unsatisfactory manner in which Mrs Oni gave evidence. We found it at times to be evasive and equivocal. Despite warnings that this would not help her cause Mrs Oni was unwilling at times to answer straightforward questions. It is a matter which Mr Monk refers to in his closing submissions. Unfortunately, that also had a direct affect upon the length of the cross-examination which in itself we did not find unduly protracted or excessive. The claimant appeared to be unfamiliar with the content of many of the documents which she supposedly authored herself or jointly with her husband. There were long and frequent gaps in her evidence when questions remained unanswered. We did not find Mrs Oni to be a reliable or satisfactory witness.”
11. The Tribunal had placed a guillotine on the length of Dr Oni’s cross examination of witnesses whereas it had not placed a similar guillotine on cross examination by the Respondent’s representative. It explained why it did so in paragraphs 189 to 193 of its reasons. It was highly critical of Dr Oni’s cross examination of witnesses, for reasons which it set out in paragraphs 191-193 of its reasons.
“In our view, not only was the bringing of the various claims unreasonable but the manner in which they have been conducted was also unreasonable.”
Statutory provisions
“(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.
“(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 determined by way of detailed assessment in a County Court 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 [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.
(3) For the avoidance of doubt, the amount of a costs order made under paragraphs (1)(b) or (c) may exceed £10,000.”
Recusal
“25. There is one further matter which was raised at the outset of the Hearing by Dr Oni and which we should deal with here. Dr Oni applied for this Tribunal to recuse itself on the grounds of bias. Initially that application was against the Employment Judge alone but was then extended to the entire tribunal. Dr Oni alleged that Employment Judge had been sympathetic to the respondent throughout and, but for his encouragement, the respondent might not have applied for costs. The application for a recusal was opposed by the respondent.
26. We saw no reason why this Tribunal should recuse itself. No allegation of bias had been made against the Employment Judge prior to today’s Hearing and the only allegation of bias raised in the appeal to the Employment Appeal Tribunal on the liability decision was against one of the lay members. That allegation was however dealt with and dismissed by the Employment Appeal Tribunal. We do not accept that it would be appropriate to recuse. This Tribunal having heard the evidence was in the best position to decide the application for costs.”
17. On behalf of the Claimant Ms Heather Platt does not submit that the Tribunal was actually biased. She submits that the case falls within the category of apparent bias. She has taken us to the test laid down in R v Gough [1993] AC 646, In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at 726-727 and Porter v Magill [2002] 2 AC 357. She accepts that it is normally desirable for the same tribunal to hear costs applications; but she submits that the remarks made by the Tribunal in its liability reasons were so closely related to the question of costs – an application not then before it – that in this particular case a fair minded and informed observer would conclude that there was a real possibility that the Tribunal was biased. Its remarks tended to show that it had made up its mind that the costs criteria were met.
20. The approach of the Appeal Tribunal to an allegation of bias by a Tribunal is the same as that of any appellate court, and is derived in modern times from the decision of the Court of Appeal in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at 726–727, as approved by the House of Lords in Porter v Magill [2002] 2 AC 357 at para 103.
23. In Locabail v Bayfield Properties [2000] QB 451 (applied in R v Oshungbure [2005] EWCA Crim 709, to which we referred the parties), Lord Bingham said:
"...a real danger of bias might well be thought to arise if in a case where the credibility of any individual were an issue to be decided by the judge he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind... The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal."
“It is common ground before us, and rightly so, that a judge in passing sentence not only can but should express his views in relation to evidence given by a defendant, which he and the jury have heard. It may be highly pertinent in explaining to those involved in the case, and to the wider public, why a particular sentence is passed and it may be of highly material assistance to the Court of Appeal if and when that sentence comes to be reviewed, to know the judge's view of the evidence which has, at that stage, been heard. As it seems to us, there can be no objection to a judge expressing his views in relation to what has already been heard from the defendant in trenchant terms. But, as it seems to us, what a judge who knows that he is likely to have to conduct fact-finding exercises himself, in relation to the same defendant, must not do is express himself, at the sentencing stage or at any earlier stage in a way which may sensibly be perceived to show that he is biased against the defendant and unlikely to believe anything that the defendant may tell him in the future. It is clearly a matter not only of practical convenience, but of good sense that the same judge who has conducted a trial should generally in due course, conduct the confiscation proceedings which arise from it.”
29. Further the Tribunal was entitled, when deciding the question of race discrimination, to point out that the Claimant and Dr Oni had been unable to say why they believed particular acts to have been done because of their race. This was relevant to the issue of discrimination.
30. Further the Tribunal was required, in order to explain why it had imposed a time limit on Dr Oni’s cross examination when it had not imposed such a limit on the Respondent’s counsel, to explain why it was necessary to do so – namely that his cross examination strayed well beyond the issues as defined and agreed and was unfocussed.
Means
39. The second main aspect of the appeal concerned the question of the Claimant’s means. In his skeleton argument for the hearing Dr Oni had said – albeit in passing – that the Claimant’s current income was a state pension of £408 per month. He also said during the hearing that his wife’s only income was a state pension.
40. In its reasons the Tribunal dealt with the question of means in the following way:
“20. We have no doubt the claimant has the means to pay costs though we note that neither the claimant nor her representative have chosen to disclose details of their financial means. Rule 41(2) is couched in discretionary terms and it is not obligatory for us to consider means. In any event, Dr Oni, who is clearly well aware of the provisions of Rule 40 of the 2004 Rules (he has quoted parts of it to us in his skeleton) has chosen not to put evidence of his wife’s means before us.”
41. On behalf of the Claimant Ms Platt argues that the Tribunal was not justified in concluding that the Claimant had the means to pay costs without any enquiry at all, notwithstanding what Dr Oni said in the witness statement. She further submits that Dr Oni had sufficiently put the Claimant’s means before the Tribunal for it to take means into account or at least enquire about them.
44. We would however make two general observations.
Conclusions