Appeal No.	EAT/0983/01  EAT/0984/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 January 2002

Before
MR COMMISSIONER HOWELL QC
MR P R A JACQUES CBE
MR T C THOMAS CBE

MR A HAWWARI	APPELLANT

BRITISH BROADCASTING CORPORATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPLICATION FOR COSTS
Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	
For the Respondent	MR GERARD CLARKE
(Of Counsel)
Instructed by:
Ms J Youngson
British Broadcasting Corporation
Litigation Department
BBC White City
201 Wood Lane
London W12 7TS	

MR COMMISSIONER HOWELL QC
1.	We have before us an application by the Respondent in these two appeals, the BBC, for an order for costs of the appeals against the Appellant, Mr Adli Hawwari, in the circumstances that Mr Hawwari wrote to the Employment Appeal Tribunal on 20th December 2001 saying “I write to inform you that I wish to withdraw the above two appeals”. At the time he wrote the letter they had already been listed to come on for hearing today. 

2.	The Respondents wrote on 7th January 2002 saying that they had no objection to the withdrawal provided that they received the costs that had been wasted in both of the two appeals. They gave reasons why they believed it appropriate for costs to be awarded against the Appellant under the jurisdiction which we have to order costs in our discretion, exceptionally, if we are satisfied there has been unreasonable conduct on the part of the Appellant in bringing or pursuing the appeals. That letter from the BBC’s solicitor, which was copied to the Appellant, concluded by saying that the BBC had estimated their costs to date conservatively at £3000 and it asked for an order that the Respondent receive those costs from the Appellant. 

3.	On the hearing of this application today, Mr Clarke, who appeared for the BBC, pursued the contention that there should be an order for costs against Mr Hawwari. In addition to a helpful skeleton argument, he has produced a more detailed statement of the costs incurred by the Respondents in dealing with these two appeals. This includes an appropriate allowance for the time of Miss Youngson, the in-house solicitor who has conducted the matter on behalf of the BBC, the estimated disbursements, including Counsel’s fees, and the costs of this present hearing which amount to a total of £4282.50. 

4.	We also have before us a written representation by Mr Hawwari himself, who has not appeared before us today though it is plain from the letter dated 15th January 2002 and enclosures that he is aware of this hearing and is contemplating that the application will proceed in his absence taking account, as we do, of the written representations he seeks to place before us. 

5.	That two page submission opposing the BBC’s application for costs reminds us in particular of the general principle, which is not in dispute, that it is an exceptional, rather than the normal, course for this Appeal Tribunal to make an order for costs. Costs do not as a matter of course follow the event in proceedings in front of the Appeal Tribunal. He also refers us to authority, which again is accepted by Mr Clarke, that the mere fact that an Appellant withdraws an appeal a matter of only some weeks prior to the date when it is listed for preliminary hearing does not, by itself, amount to a reason for making an order for costs against the withdrawing Appellant. 

6.	The proceedings which gave rise to the two appeals are numbers 10, 11 and 12 out of a succession of complaints made by Originating Applications by Mr Hawwari to Employment Tribunals against the BBC, alleging in particular racial discrimination and what he refers to in one of the Originating Applications before us as “institutional racism”. Mr Hawwari’s contention is that there has been discrimination against him on racial grounds in relation to his employment in the Arabian service of the BBC. We are not concerned with the merits of those proceedings at all except to note that the application to us is part of a long and fairly complex history of the litigation initiated by Mr Hawwari against the BBC.

7.	The two Tribunal orders, which he sought to appeal in his now withdrawn appeals, were both procedural orders or directions given by a Tribunal Chairman. The first is at pages 6-12 in the appeal file and was embodied in a detailed order for directions in a letter dated 17th July 2001 after a directions hearing on 13th July. In those directions, the principal order made by the Chairman was to grant Mr Hawwari’s application for a consolidation of his tenth, eleventh and twelfth sets of proceedings by Originating Application, and to direct that those should be set down for what is bound to be a very extended hearing; the time estimate, we have been told, being some twenty days. 

8.	The only aspect of that order Mr Hawwari took issue with was embodied in paragraph 6 of the directions letter, as follows 

“The Applicant sought to renew an application for a preliminary hearing in the cases which he had made before another Chairman at a hearing on 11th April 2001. The Chairman declined to hear that renewed application for a preliminary hearing for two reasons. It did not seem to the Chairman that there is any such issue of jurisdiction as would enable the Tribunal to shorten the eventual hearing in the case. More importantly, he didn’t consider that he had jurisdiction to allow Mr Hawwari to re-litigate an application which Mr Hawwari said he had made to the other Chairman.” 

The Chairman thus declined to entertain what was in effect a renewal of an application for a preliminary hearing which had already been made to, and fully dealt with by, another Chairman. 

9.	The second order which Mr Hawwari’s second appeal sought to dispute was the Tribunal’s rejection, by letter dated 9th August 2001, page 18 in the bundle before us, of an application he had sought to pursue for an order to be made in advance of the proceedings themselves that the Respondents should pay for his legal representation, in at any rate the tenth, eleventh and twelfth Originating Applications of the very substantial and complex proceedings he was seeking to bring against them. 

10.	That was rejected in the letter of 9th August 2001, the Chairman accepting the grounds on which the application had been opposed by the Respondents. Those included in their letter dated 6th August 2001, at page 21, the following comments 

“Mr Hawwari is an experienced litigant and, as he has told the Tribunal in this case at the Directions Hearing, he has taken courses on employment law. In his previous cases he has been supported by the CRE and the NUJ. He is a member of the National Union of Journalists’ Executive Committee and, as a member of the NUJ, would no doubt be entitled to support from them. He is also aware of the advice available to individuals from bodies such as the CRE, the Citizens Advice Bureau and the Free Representation Unit and could of course pay for legal advice if he wished. He could also enter into an arrangement to be represented on a conditional fee basis. 
Mr Hawwari has chosen to bring the cases against the BBC. The BBC is defending cases and has no choice in the matter.” 

The letter then further disputed whether there was any power in the Employment Tribunal Rules for the Chairman or the Employment Tribunal to make a pre-emptive costs order of the type Mr Hawwari was apparently seeking. It argued that, in any event, it would be inappropriate for any such order to be made, the Appellant being an experienced litigant with alternative sources of representation available to him, and there being no question that he would not receive a fair trial as the Employment Tribunal system is set up to accommodate litigants in person. 

11.	Mr Hawwari’s Notices of Appeal against both of those decisions are dated 11th August 2001 and in relation to the first order, whereby the Chairman declined to re-open the question of whether there should be a preliminary hearing in the proceedings, it is alleged that that refusal undermined the right to free trial under the Human Rights Act 1998 and that the Chairman “over-pruned the Appellant’s case and was not interested in any reference to European law”. 

12.	Secondly, it is alleged that the second decision, declining to make a pre-emptive order that Mr Hawwari’s costs of the proceedings should be paid by the BBC in advance regardless of the outcome, was also contrary to various provisions of the Human Rights Act to which Mr Hawwari’s Notice of Appeal refers. 

13.	Following the lodging of those Notices of Appeal and the usual Respondent’s Notices having to be put in by the BBC, Mr Hawwari submitted an affidavit in support of his two appeals dated 29th October 2001 at pages 24-27, in which he made various detailed allegations about the conduct of the proceedings and made clear allegations of bias against the Tribunal Chairman in the way the Directions Hearing had been conducted. 

14.	In those circumstances the BBC, in our judgment entirely reasonably, thought it right to lodge a detailed affidavit in answer to Mr Hawwari’s allegations and refuting any suggestion that there had been bias on the conduct of the Tribunal Chairman. That was done by an affidavit of Miss Youngson, the solicitor acting for the BBC, dated 19th November 2001, which, with its exhibit, is at page 28-36 inclusive of the appeal file. 

15.	As we have said, on 20th December 2001 Mr Hawwari sought simply to withdraw both of these appeals after they had been listed for hearing; and that withdrawal, of course, took place after substantial costs had already been incurred by the BBC in dealing with the two appeals. 

16.	In those circumstances, having taken account of the written submissions which Mr Hawwari has made arguing that there should be no consequences in costs of the way in which he has conducted these two appeals, we have decided that the application made by Mr Clarke, on behalf of the BBC, was a justified one. In our view it is right in the circumstances to exercise the exceptional power we have, under Rule 34 of the Employment Appeal Tribunal Rules, to award costs on the grounds that these two appeals were unreasonably launched in the first place and have been unreasonably pursued. 

17.	We make it clear that the mere facts that Mr Hawwari has abandoned his appeals at a late stage before the hearing and that he has, as we are aware in the background, brought multiple sets of proceedings against his employers do not of themselves constitute reasons why we have thought it right to make this order. We are not, therefore, imposing what would be in effect a penalty against him for being a difficult litigant; but we have no doubt that he is, as an experienced litigant, well able to understand the Tribunal Rules and the issues involved, and we are satisfied that it must have been apparent to him all along that there could be no conceivable successful ground of appeal against either of the directions and orders made by the Tribunal Chairman which he sought to dispute. 

18.	In our judgment, there never was any arguable point in either appeal and we are satisfied, in those circumstances, that it was unreasonable for either of the appeals to have been brought or pursued in the way they were. 

19.	We are satisfied also that the Respondents had incurred substantial expense as a result of the bringing of these appeals, before they were abandoned on 20th December last year, and in those circumstances it is right to award a substantial sum and not merely to make a token award. 

20.	We have been asked rather than to direct an assessment of the detailed amount of the BBC’s costs to make our own assessment of a global sum, which we have the power to do under the Employment Appeal Tribunal Rules, Rule 34(2). We do not think it is right to award the whole of the amount in the detailed schedule, since that was only supplied to Mr Hawwari yesterday afternoon and it appears he has had no real opportunity for a considered response on the amount. 

21.	On the other hand the sum of £3000, as a conservative estimate of the costs already incurred by the BBC, was put fairly and squarely in the letter of 7th January 2002, which also embodied the application that the Respondents should receive an order for costs in that amount from the Appellant, and we are satisfied that is the appropriate order to make. Accordingly we assess the costs to be paid by Mr Hawwari to the BBC in the sum of £3000, and on that footing give leave for the two appeals to be withdrawn.