EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity
– Costs
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Appearance of bias – Cost Hearing – adequacy of reasons for costs award
During the course of the Liability Hearing of the Claimant’s claims (the ET being concerned with four separate claims, consolidated for hearing), the ET had given a costs warning, urging the Claimant to focus on ‘whether certain of his claims now had any prospect of success’ and whether his claim was ‘so very weak having come apart in cross examination and by reference to the contemporaneous documentation and also his answers’ (paragraph 16). These comments had been made in the context of a history of difficulties relating to the understanding of the Claimant’s case in the ET proceedings and concerns as to whether he had properly appreciated what he had to establish.
The ET hearing had then gone part-heard and, during the period of the adjournment, the Claimant lodged a complaint about the ET (specifically, the Employment Judge), contending it was biased and complaining of the manner in which he had been warned of the risk of costs. His complaint was investigated but rejected by the Regional Employment Judge, who found that the costs warning had not been given in the manner alleged and the ET had not evidenced bias. The Claimant was further advised as to his right to apply to the ET to recuse itself if he considered it was biased and/or to appeal to the EAT.
After the resumed hearing of the claims, the ET (by its Reserved Judgment) dismissed the Claimant’s various claims. His subsequent appeal against that Liability Judgment – which included allegations of bias – was then rejected on the papers as being totally without merit.
The matter then returned to the ET to determine a costs application made by the Respondent, for a total sum of andpound;94,156.96, on the basis that the Claimant had acted unreasonably in the bringing of the proceedings and/or their pursuit; alternatively, the claims were misconceived.
At the outset of the Costs Hearing, the ET drew the parties’ attention to the case Oni v NHS Leicester City [2013] ICR 91 EAT, and provided both with an opportunity to make representations. The Claimant did not – then or at any other time – submit that this was a case akin to Oni and/or that the ET ought to recuse itself from determining the costs application. Having found that the Claimant had behaved ‘otherwise unreasonably’, certainly in pursuing the proceedings ‘at latest from the first costs warning’ made by the Respondent in correspondence, and in respect of all but his complaint of unfair dismissal, the ET concluded it was appropriate to make a costs award. After summarily assessing the Claimant’s means, the ET considered the award should be for 85% of the total sum expended by the Respondent, the 15% reduction relating to the costs the ET considered would have been incurred in hearing the unfair dismissal claim.
The Claimant appealed on two bases: (1) whether the ET ought to have recused itself from hearing the application given its earlier costs warning to him during the Liability Hearing, and (2) whether the ET adequately explained its assessment of an award of 85% of the Respondent’s total costs, in particular given: (i) its view of the potentially reasonably arguable unfair dismissal claim, and (ii) its finding that the unreasonable conduct dated from the Respondent’s first costs warning.
Held: allowing the appeal in part.
The bias or Oni point:
In standing in the shoes of the impartial, informed observer (Porter v Magill [2001] UKHL 67), the fact that the Claimant had previously made complaints of bias (in his complaint to the Regional Employment Judge and in his appeal against the Liability Judgment) provided no basis for concluding that the ET could not continue to consider the subsequent costs application (Ansar v Lloyds TSB Bank plc [2007] IRLR 211 CA and Oni at paragraph 38). Further, in establishing the relevant facts, it was not irrelevant to consider how the Claimant saw the position at the time: as reflected in his complaint, he understood the ET to have given a costs warning, not to have expressed a concluded view on any such future application. Whether or not his subsequent failure to apply for the ET to recuse itself amounted to a waiver of his right to complain of apparent bias (Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96 CA), it assisted in establishing he had understood what had been said at the original Liability Hearing.
Having due regard to the full context, this is not a case where the ET impermissibly stepped over the line. An ET must be able to give guidance to parties as to how their case or conduct might be viewed and the risks they might be taking if they continue down a particular path. In certain circumstances, not to do so could itself be considered a failure to try to ensure a level playing field. At the same time, the ET must be careful not to reach a conclusion as to whether the case or conduct should be viewed in a particular way before it had heard from both sides on the point.
The ET in this case had suggested that the Claimant might focus on whether certain of his claims now had any prospect of success; that was not the statement of a concluded view that they did not, but an urging that – given the evidence – the Claimant reflect on his position. The ET did no more than properly warn the Claimant of that which was apparent from the ET Rules; there is a risk of costs in certain circumstances in ET proceedings and the ET was ensuring that the Claimant was aware of the position and asking him to reflect upon it. This would not cause the informed and impartial observer to consider that there was a possibility of bias.
The adequacy of reasons point:
The ET clearly considered the Respondent’s costs warnings to the Claimant were relevant in determining whether its costs jurisdiction was engaged. Although the ET made various other criticisms of the Claimant’s conduct in pursuing the claims thereafter, it explained its finding on unreasonable behaviour as relating ‘at latest from the first costs warning’ (referring to the Respondent’s first warning to the Claimant in correspondence). And whilst the Claimant was aware that the Respondent’s application had been made on broader grounds, he was entitled to understand the basis for the award actually made. The focus of the ET’s decision was on the reasonableness of his conduct in pursuing his claims after the Respondent’s first costs warning.
When the ET came to assess the level of the award, it reduced the total sum claimed by 15% in respect of the unfair dismissal hearing. Although that was a broad brush assessment, the ET was best placed to determine how to proportion the relevant costs between the claims and to assess how much should be attributed to the unfair dismissal case. The appeal in that respect must fail.
On the other hand, it was not possible to see any allowance made for the period prior to the first costs’ warning, although there was no statement that the ET had found its costs jurisdiction was engaged in respect of costs incurred prior to that time. Whilst it may only have said that the Clamant behaved otherwise unreasonably at latest from that warning, the Claimant was entitled to expect the ET’s findings on costs to be set out clearly; there was no clear finding that the ET had found he had behaved unreasonably prior to that date. The appeal would therefore be allowed on this point and remitted to the same ET to reconsider whether its award of 85% of the total costs expended was meant to apply to costs post-dating the first costs warning sent by the Respondent or to all costs and, if the latter, on what basis was that award made?
Eady QC HHJ
[2016] UKEAT 0080 – 16 – 2408
Bailii
England and Wales
Employment
Updated: 24 January 2022; Ref: scu.570388