Appeal No.	EAT/831/02/SM   			EAT/453/02/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 October 2002

Before
HIS HONOUR JUDGE D PUGSLEY
MR D CHADWICK
MR M CLANCY

MR A WIGGLESWORTH 	APPELLANT

DEPUTY CHIEF FIRE OFFICER K SEAGER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

	APPEARANCES

For the Appellant	The Appellant in person	

HIS HONOUR JUDGE D PUGSLEY

1	Mr Wigglesworth is no stranger to Tribunal proceedings.  The decision which he now seeks to appeal is, as the Tribunal observed, the fifth of six sets of proceedings which he has issued over a six year period.  The matter came before us as a preliminary hearing to see if we could identify a point of law.  In effect there are two appeals; the first against the dismissal of the Applicant’s claim and an order that he should pay costs; the second appeal is against the amount of costs.  We had a heavy list and we have taken the unusual course in a preliminary hearing of reserving our decision.

2	In paragraph 2 of the decision the Tribunal noted that it was the Applicant’s underlying thesis that he had been terrorised in the workplace.  The Tribunal summarised its findings from paragraph 8 onwards.  The Applicant had joined the fire service around 1979 serving first in West Yorkshire and then in Suffolk.  In 1996 the Applicant applied for a job in the fire service in Strathclyde and when he was unsuccessful he commenced an action for racial discrimination.  The Tribunal noted that the Applicant was white and of English descent.  The action was deemed to be out of time.  Thereafter the Applicant alleges since 1998 he has suffered sustained victimisation, harassment and oppression in the workplace.  

3	The Tribunal rejected the Applicant’s case and in paragraph 3 of their decision the Tribunal made some robust criticisms of the credibility of his evidence.  In paragraph 4 of the decision the Tribunal were critical of the witness, Mr Woolstenholmes, called by the Applicant.  They concluded he was concerned to promote his own agenda.  The Tribunal in contrast found the evidence of the witnesses called by the Respondent under-stated, rational, factual rather than opinionated, restrained in evidence in chief but resilient under cross-examination and consistent in both.

4	Mr Wigglesworth’s grounds of appeal and skeleton argument constitutes in essence an attack on the integrity of the decision making process of the Tribunal and in particular an attack alleging bias on the part of the Chairman.  It is alleged that the Chairman was dismissive of the Applicant’s case, sought to undermine his case at every opportunity, admitted evidence despite the Applicant’s objections, threatened the Applicant with an Order of costs being made against him, did not allow the Applicant to present his case and reached a precipitate and unconsidered decision.  

5	Where relationships have broken down whether in family cases or in employment cases it is almost inevitable that in a significant proportion of such cases there is a desire on the part of those involved to rehearse at length the agenda of the failed relationship.  What may seem relevant to the aggrieved party may not be considered as important to the Tribunal which is determining the matter.  Unless the Tribunal keeps some control of the proceedings the case becomes unmanageable.  Having considered the detailed and measured reply of the Chairman we are satisfied that on a proper analysis of the position the Chairman was doing no more than exercising proper control of the proceedings.  We note that this was a unanimous decision of the Tribunal.

6	In that it is suggested that the Tribunal did not give proper consideration to the case we note that the Chairman states that after some twenty minutes deliberations he gave a brief extempore judgment dismissing the appeal and making an Order of costs against the Applicant but reserving the assessment of costs to a later occasion.  The older employment cases used to refer to the role of a Tribunal as that of an industrial jury.  It is trite to say that the length of a jury’s deliberations do not always mirror the time that the trial took.  Sometimes a jury may take longer to reach a decision in a case in which they have heard very little evidence than a case that took many days.  This case took two days and we do not accept that the attention given by the Tribunal was, as the Applicant alleges, cursory.  Although the skeleton argument cites numerous cases we have been unable to identify any issue of law that would permit us to allow this appeal against the dismissal of the Applicant’s case to proceed to a full hearing.  We therefore dismiss this Appeal.

The issue of the Order for costs
7	The circumstances in which a Tribunal may make an Order for costs is circumscribed by statute.  It is clear from the body of the decision that the Tribunal invited the Applicant to make representations about costs and that he did make representations.  Whilst it may be that it is somewhat unusual for a Tribunal to deal with this issue prior to making its determination on whether the case is upheld or dismissed, we cannot say that it is an error of law to adopt the procedure which this Tribunal did on this occasion.  

8	It is clear that the Tribunal gave the question of costs proper and detailed consideration.  Whether or not an award for costs should be made is a matter for the Tribunal and we should only interfere if we consider they have exercised their discretion in an unreasonable way.  We therefore dismiss the appeal EAT/453/02.  In our view the Tribunal were entitled to dismiss the Applicant’s case and to order that he pay costs.  

The issue of the Quantum of Costs
9	The Tribunal went on to make a provisional assessment (of costs) that the Applicant pay the sum of £9,445 in respect of costs.  The Tribunal were clearly troubled by the decision of Kovacs -v- Queen Mary Westfield College and Another [2002] IRLR 414 and the extent to which that placed a fetter on their discretion.  The Tribunal reached their conclusion without enthusiasm and were clearly troubled that they were awarding a figure for costs that seemed to them disproportionate and they felt that the sum of £6000 was more appropriate.  However as they made clear in their reasoning at paragraph 23 of their decision, on a proper analysis this feeling was no more than taking into account the Applicant’s means which they felt precluded from doing by virtue of the Kovacs decision.  

10	However, the grounds of appeal seem to be based on the premise that the Tribunal had never identified the point at which the Applicant had crossed the threshold of unreasonable behaviour and that it had never been suggested that the Applicant did not have a genuine claim.  That contention is wholly at variance with the express findings of the Tribunal which are set out at paragraph 19 of the costs assessment decision and in paragraph 54 of their decision in which they made the primary finding that the Applicant should pay costs.  The Tribunal clearly concluded that these proceedings were misconceived.

11	We have come to the conclusion that no issues of law are raised on the assessment of costs and we therefore dismiss this Appeal.