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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Khan v Kirklees Metropolitan Borough Council  EWCA Civ 1342 (02 November 2007)
Cite as:  EWCA Civ 1342
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE ANSELL)
Strand, London, WC2A 2LL
B e f o r e :
|- and -
KIRKLEES METROPOLITAN BOROUGH COUNCIL
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Crown Copyright ©
Lord Justice Mummery:
"If it was arguable that the Employment Tribunal's position as chair of school governors (albeit it in another LEA area) was capable of impinging on his judgment or attitude in these proceedings, I would have granted permission to appeal without regard to the FOL issue and eventual claim, but it is not suggested to be the case. What is suggested is that the issue of proceedings against him and his school by a) some four years after these proceedings were instituted disqualified him from continuing. I accept that if the Chairman had been a defendant to a claim by A at the time the present ET1 was issued, the case for refusal would have been powerful. Indeed he would probably have declined to sit. But the order in which things occurred made it essential for the ET and in turn the EAT to form a view as to whether the 2005 claim had as at least one its aims to embarrass the Chairman in relation to the 2001 claim and to unseat him. Their conclusion, which is not pre-empted by the way the Manchester ET in the event dealt with the 2005 claim, was all but inescapable. A was using the 2005 claim to try, among other things, to get rid of the Chairman. In such a situation, an apparent bias claim cannot stand up."
"The finding of unreasonable conduct was fully articulated and entirely tenable. So was the proportion of 20 percent allowed for the element of the claim recognised as triable. The question which has given me pause is whether, even though A has not taken the opportunity to put in some evidence of his means, it was incumbent on the Employment Tribunal a) to recognise that as a supply teacher his income would on any view be modest, and b) to take that into account before fixing on an order. Directions are given below in relation to this."
"1) Where, in the opinion of the tribunal the party has in bringing the proceedings, or a party 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 costs incurred by another party…
3) An order containing an award against a party ('the first party') in respect of the costs incurred by another party ('the second party') shall be…
c) in any other case, an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as assessed by way of detailed assessment (if not otherwise agreed)."
"In this context the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions."
Order: Application refused