Appeal No. EAT/0916/02 ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 May 2003
Judgment delivered on 14 July 2003

Before
HIS HONOUR JUDGE BIRTLES
MR P GAMMON
MR P R A JACQUES CBE

MR A McPHERSON	APPELLANT

BNP PARIBAS LONDON BRANCH	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS JANE McCAFFERTY
(of Counsel)
Instructed by:
Messrs Taylor Joynson Garrett Solicitors
Carmelite
50 Victoria Embankment
Blackfriars
London EC4Y 0DX	
For the Respondent	MR DANIEL TATTON-BROWN
(of Counsel)
Instructed by:
Messrs Clyde & Co Solicitors
51 Eastcheap
London EC3M 1JP	

HIS HONOUR JUDGE BIRTLES

Introduction

1	This is an appeal from the decision of an Employment Tribunal sitting at London (Central) on 27 May 2002.  The decision was sent to the parties and entered in the register on 15 July 2002.  The Chairman was Mr M F Haynes.

2	The unanimous decision of the Tribunal was that:

(i)	the Applicant be ordered to pay the Respondent’s costs of the proceedings (including that day) on a standard basis to be assessed by way of detailed assessment if not agreed;

(ii)	the Applicant’s application for a Costs Order be dismissed.

The Employment Tribunal Decision

3	In paragraph 1 of its decision the Employment Tribunal set out the nature of the application, referred to the evidence put before it and its approach to that evidence.  In the usual way it then went on to make findings of fact.  It will be helpful if we set out the relevant part of the Employment Tribunal decision:

1	“The Respondents in these procedures have made an application that their costs of the proceedings should be paid by the Applicant.  Both Mr Tatton-Brown and Miss McCafferty referred us to an agreed bundle of documents.  Miss McCafferty also produced a Witness Statement for the Applicant, which the Tribunal read.  The Applicant himself did not attend to give evidence, Miss McCafferty explaining that this was due to his medical condition, which we refer to hereafter.  No medical evidence was produced to that effect.  We had to decide what weight we would give to that statement in the absence of cross-examination.  We are also conscious that there were points at which the Applicant’s evidence conflicted with letters written by his solicitors and with that of his medical advisers.  The Tribunal’s decision was that, save where it was corroborated by other documents, the Applicant’s statement should be approached with a great deal of caution.  It had not been tested and in relation to his medical condition no medical records nor up-to-date reports were prepared.  We therefore had to decide upon his condition from the evidence produced to us in the form of letters from Dr Corr and Dr Marchant.  We were not asked to adjourn the proceedings to enable any more detailed reports or records to be produced.  Based on the documents before us we make the following findings of fact:
(i)	“The Applicant had made a complaint of unfair dismissal and breach of contract.  This was presented to the Tribunal on 17 October 2000 and referred to an effective date of termination of 29 September 2000.  This complaint was strenuously resisted by the Respondents.
(ii)	The matter was originally listed from 24 to 28 September 2001.  On 21 August 2001 the Applicant’s solicitors wrote mentioning that their client might require heart surgery and advising that a postponement might be required.
(iii)	On 20 September the Applicant’s solicitors made application to the Tribunal for an adjournment.  To justify this they attached a copy of a report from Dr Laura Corr, a Consultant Cardiologist.  This says:
“Mr McPherson is under my care with Wolf-Parkinson White Syndrome.  This is a cardiac condition associated with disturbance of the rhythm of the heart due to a congenital abnormality in the electrical conducting system.  Essentially, Mr McPherson has been born with an extra pathway in his heart which allows the heartbeat to be conducted much more rapidly than normal when this pathway is used.  The frequency with which this happens and the heart rate produced is sensitive to external influences, such as stress.  Mr McPherson’s heart is otherwise normal.
Mr McPherson was essentially unaware of this condition for many years but over this year has developed occasional palpitations.  They have worsened abruptly and I think he is correct in assuming that this is due to a combination of the extraordinary world events which have affected his industry, combined with the stress of his forthcoming Tribunal.
He is now troubled with palpitations several times a day and at night.  I am confident that they would be settled if this Tribunal could be postponed.  The condition is eminently treatable and in the vast majority of cases is curable.  Postponement would allow time for reassessment of this condition and curative treatment as necessary.”
The Tribunal note that this report makes no reference to an existing heart murmur which the Applicant says he had been aware of for many years.  It also suggests that the stress on the Applicant was due to the “extraordinary world events” as well as the Tribunal.
(iv)	On the same day, although this was not produced to the Respondents until later, Dr Corr wrote a further letter:
“Further to your recent enquiry, Mr McPherson’s condition is unlikely to be life-threatening.  However, the pattern of his symptoms recently, strongly suggest that they are significantly affected by stress and would, therefore, be likely to be brought on during the Tribunal.
The condition can be managed relatively easily and simply using a technique called radio-frequency ablation which does not require surgery.  This would have a greater than 95% chance of success and would abolish his systems in the future, allowing him to be symptom-free despite the stress of a Tribunal.”
(v)	We received no other evidence from Dr Corr.  We also note that there is no indication of the dates upon which she formed the opinion she expressed and as to whether she treated the Applicant as a result of having suffered difficulties with his heart in the early part of the year 2001.  We [do] not know when this event occurred, since the Applicant’s own statement does not give the date.

(vi)	The Tribunal granted the request for an adjournment.  Subsequently, there was considerable correspondence between solicitors relating to requests by the Respondent for more information about the Applicant’s case and disclosure of documents.  Two issues mainly lay behind this, firstly the genuineness of the Applicant’s health difficulties and secondly, if successful, the impact of this condition upon the level of compensation which he might be awarded.  Generally, the Applicant was difficult over supplying those details and some were still outstanding at the date he withdrew his complaints.  Orders for disclosure were made on 1 November and 31 January.
(vii)	A Directions Hearing was held on 31 January [2002].  At this an order was made that the Applicant should disclose all of the documents required by the Respondent except for his medical records and details.  In relation to those the Chairman found:
“He considered that should an application for costs thrown away be made, there would be adequate information available to the Tribunal upon which such application could be determined.”
The Chairman went on to find:
“3(ii)	The Chairman order that the Applicant should confirm to the Respondents and the Tribunal 14 days before the full merits hearing fixed for 27 to 31 May 2002 that there is at that time no medical reason why he will be unable to attend the hearing.”
(viii)	The Applicant’s solicitors wrote to the Tribunal on 9 May 2002 stating inter alia:
“As the Employment Tribunal is aware from previous correspondence, our client’s medical condition is exacerbated by stress and our client believes that the pressure he has been under in recent weeks as a result of correspondence from the Respondent’s solicitors, together with the prospect of the impending Employment Tribunal, means that his health has deteriorated and he does not feel that he could face the inevitable pressures of the Employment Tribunal hearing.”
The letter goes on to make complaints of the Respondent’s conduct and suggests that in other ways he had valid case to pursue.  He mentions that he has endeavoured to conclude the proceedings by mediation and finally states:
“In the circumstances therefore please accept this letter as notice of our client’s withdrawal of his claim.”
(ix)	On 23 May [2002] a decision was promulgated that the application was dismissed on withdrawal by the Applicant.
(x)	For the purpose of these proceedings the Applicant obtained a letter from Dr Ruth Marchant, who is a General Practitioner.  This states:
“I am able to confirm the Mr McPherson first presented in May 2001 having experienced chest pain while away in Singapore and a diagnosis of Wolf-Parkinson White Syndrome was confirmed.  When I [saw] him at the time he was unwell, asymptomatic from a cardiac point-of-view, but keen to find [out] more about the underlying condition.  He was therefore referred to Dr L Corr who is a Consultant Cardiologist.  She was able to confirm the diagnosis and as clearly [documented] in his notes, a close correlation between symptoms of chest pain and palpitations relating to stress invoked by the court case.  She felt at the time that it would not be in Mr McPherson’s interest to have either invasive treatment or drug treatment as, aside from the stress-related symptoms, he was actually well.  Clearly any invasive procedure carried with it risks and for somebody who is for the most time…well, this would be utterly unacceptable.
I saw Mr McPherson in December when he was experiencing more symptoms from the Wolf-Parkinson White Syndrome.  He had also broken out with eczema, another stress-related condition and it appeared that all of the symptoms he was experiencing were directly related to instances around the case.  Mr McPherson had tried all sensible advised non-invasive techniques to elevate his symptoms, i.e. relaxation methods and breathing techniques but clearly the symptoms were becoming quite unmanageable.  Certainly at the time we discussed the option of withdrawing from the case as quite early his health was being severely affected and the possibility of needing to resort to an invasive procedure, which otherwise would have been entirely unnecessary, would seem to be prudent.
I have no doubt in my mind that Mr McPherson’s decision to withdraw from a scenario that was causing him so much stress and causing cardiac problems, was a wise decision.  I was horrified to hear that rather than respect that decision the BMP Paribas have decided to prolong the stress by threatening him with further bills.”

4	Having set out its findings of fact, the Employment Appeal Tribunal referred to the relevant law contained in rule 14 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001 (SI/2001/1171).  The Employment Tribunal then considered the Appellant’s medical condition in the following way:

4	“We think it appropriate to consider first the merits of the medical evidence produced regarding the Applicant’s health.  We do this because the Applicant’s solicitor’s letter of 9 May refers to his health as being the sole reason for withdrawing the proceedings, which otherwise they claim are meritorious.  We accept that the Applicant suffers from Wolf-Parkinson White Syndrome.  We do not dispute what is set out in the reports of Dr Corr and Dr Marchant.  The Respondents produced no evidence which would enable us to do so.  What is perhaps more remarkable in those reports is what they do not say, more than what they do say.  Dr Corr gives no indication as to when she saw the Applicant.  We know from his solicitor’s letter that heart surgery was being contemplated in August.  His first awareness of the condition was when he was in Singapore in the early part of 2001.  Presumably she had seen him following his return, if his account of what he underwent there is accurate.  We do not know whether she formed her view on one visit or a series of visits in which she carried out treatment.  We suspect that latter cannot be the case as she does not refer to treatment.  She does not give any indications as to how bad the Applicant’s palpitations are.  Most particularly she does not say that as a result of the palpitations the Applicant was unfit to attend a Tribunal.  Her second report states that the condition was not life threatening although it could be brought on during a Tribunal.  She refers to an easy and simple technique called radio frequency ablation which does not require surgery.  We had produced to us an extract from a medical journal, which referred to “catheter ablation”, which requires insertions into the patient’s groin.  Whilst Ms McCafferty suggested that this was the procedure that Dr Corr was referring to, it has a different name and we are unable to make any connection between the two, although clearly both are designed to address the same difficulty.  We have already indicated that we are not prepared to accept the Applicant’s claims within his statement as to the way in which the condition affected him.  It would be totally inappropriate for the Tribunal to do so in the absence of their being tested by cross-examination.  No further reports were produced from Dr Corr.  The next report is from Dr Marchant, who is a General Practitioner.  She recites what has been said by Dr Corr.  Interestingly, she remarks that the Applicant had decided not to have invasive surgery despite the fact that this conflicts with the claims made by his solicitors in August and September 2001.  She indicates that the Applicant had now acquired a further symptom, namely eczema and that was stress-related.  We accept that this is the case.  However, Dr Marchant does not plainly state that the combination of these conditions prevented the Applicant attending the hearing.  She does not give any indication of their severity, either of the palpitations or of the eczema.  Neither doctor gives any evidence of time off work as a result of these conditions nor of how the conditions would [affect] the Applicant’s ability to attend the Tribunal.

5	We do not doubt that the Applicant suffers from the Wolf-Parkinson White Syndrome but are not satisfied that we have sufficient evidence that this condition [was] so serious to prevent the Applicant attending [the] Tribunal.  He does after all work in a high-powered job in the finance industry which no doubt has many associated stresses and strains.  We accordingly find that the Applicant’s condition was [not] sufficiently serious to prevent him attending the Tribunal and conducting the case.  We bear in mind that he was represented by competent and experienced solicitors, who would [no] doubt have advised him that the Tribunal is ready to make allowances for parties who are not fully fit.  Indeed, a significant part of our jurisdiction relates to disability where Applicants [inevitably] have difficulties with their health.  It is the Applicant’s claim that his health was the sole reason for withdrawing his complaint.  We have found that this claim is not justified.  It follows that there must be some other reason for his withdrawing his proceedings, which was unconnected with his health.”

5	The Tribunal then turned to consider whether the Appellant’s withdrawal of his complaint in the above circumstances was unreasonable conduct.  Its decision is set out in the following way:

6	“We next turn to consider whether withdrawing one's complaint in these is unreasonable conduct.  We must first say that the action of an Applicant in withdrawing his complaint should not automatically lead to the conclusion that he has been unreasonable in bringing it.  There are many genuine issues and matters which might lead an Applicant to take that course.  Here we have found that the reason given by the Applicant was not the real reason.  We must also consider the history of the litigation.  This is a substantial matter which involved unpleasant allegations on both sides and the Applicant has throughout indicated that he wished to clear his good name.  There have been two Directions Hearings and an adjourned Hearing.  The parties were all working towards a further lengthy defended hearing in May 2002.  The Directions Hearing on 31 January is of some importance.  We were told by Mr Tatton-Brown, who was present at that hearing, that the issue of whether the Applicant would be able to attend the hearing in May had been strongly canvassed.  Whilst the Chairman had refused a request for disclosure of the Applicant's medical records he had made an order that the Applicant was to advise if his health was likely to prevent him attending the hearing.  We accept what we were told and it was not challenged by Miss McCafferty.  Miss McCafferty urged us to find that the Chairman’s order at paragraph 3(ii) gave the Applicant a right to notify his withdrawal prior to that date without any implications.  We do not believe that that was that the Chairman decided.  That particular clause is connected with clause 3(i) which relates to his consideration of the application to disclose medical records.  That paragraph states that it is considered inappropriate for those records to be produced for the general purposes of the litigation.  It is quite clear that the Chairman had in mind the obtaining of advanced notice of the need to postpone rather than the likelihood of a withdrawal.  We do not consider that clause 3(ii) has any implications for our decision.
7	The situation which we have to consider is that the Applicant withdrew from this substantial case on 9 May, some two weeks before the hearing date.  Every indication which he had given up to then was that he wished to pursue the complaint.  The Tribunal has found that the reason he gave for taking this step was not a real reason.  Whilst the Tribunal should not make any findings based on speculation, [1] it is apparent from the correspondence that the Applicant had concerns about he expenses to himself of the proceedings.  He mentioned having spent £40,000 in fees already.  [2] He had been asked for documentation which he was obviously loathe to supply.  [3] He has let the Respondents incur considerable expense in preparing the case on the basis that he would be pursuing all his claims.  On the 31 January his solicitors made this position very clear.  Despite this, in December he was discussing with Dr Marchant the need to abandon the proceedings.  It seems from Dr Marchant's letter that he had largely agreed to do so.  The Tribunal find that in the circumstances of this case and on the basis of the findings we have made, that such conduct was unreasonable.

8	Having reached the decision that the Applicant's conduct was unreasonable, we have also had to consider the nature of any Costs Order we could make as a result.  The Respondent has asked us to make an order in respect of the whole of the proceedings.  Whilst not asked to do so by either of the parties, the Tribunal also considered would be appropriate to make an order for part only of the costs of the proceedings.  [1] We could for instance award costs from December to reflect the discussion with the doctor.  There would seem little reason why the withdrawal should not have been taken soon after December and have saved the Respondent of the costs incurred after that date.  [2] We could consider awarding costs from September, since it is inevitably part of our decision that the evidence that the Applicant put forward as to his medical condition at that time did not justify his request for an adjournment.  We have come to the conclusion that it is appropriate to award the Respondents the costs of the whole proceedings.  Our findings as to the Applicant's medical condition means that we find his statement to us inaccurate. It causes us concern as to his probity in relation to the whole of the proceedings.  We cannot of course make comments on the merits of the matter.  We have not investigated them and certainly heard no evidence.  We can, however, form the conclusion that since the summer of 2001 the Applicant’s conduct of this case has been a history of procrastination and delay on his part.  A number of Orders have been required to make him disclose documents or give further particulars. He has been dilatory or given inadequate replies to those requests. It is the Tribunal's view that he has been prolonging this case in the hope of obtaining an offer, which in fact never came. This may show a lack of belief on his own behalf in the merits of his case, but that is not for us to decide.  The Applicant’s sudden withdrawal of these proceedings without good reason is part and parcel of that same conduct.  We accordingly find that the conduct by the Applicant of the whole case has been unreasonable and that the Respondents are accordingly entitled to their costs of the whole proceedings.

The Grounds of Appeal

6	We are indebted both to Miss Jane McCafferty, who represented the Appellant, and Mr Daniel Tatton-Brown, who represented the Respondent, for their extremely helpful Skeleton Arguments and oral submissions to us.  There are a number of grounds of appeal.  We propose to take each one in turn.

Ground 1

7	The first ground of appeal is that there was an error of law in the Tribunal finding that the Appellant’s concern for his health was “not justified” and therefore was not the real reason for his withdrawal on 9 May 2002.

8	Miss McCafferty argues that, as the Tribunal did not dispute what was set out in the reports of Dr Corr and Dr Marchant, it had to find that the Appellant’s symptoms of chest pain and heart palpitations, whilst unlikely to be life-threatening, were likely to be brought on by the stress of a Tribunal hearing.  The Tribunal decided that, as the doctors do not state in terms in their reports that the Appellant was unfit to attend the Tribunal, and because they do not give particulars of the severity of the chest pain or the palpitations, the Appellant was “not justified in deciding not to put himself through this pain and palpitation in order to pursue his claim: decision paragraphs 4 – 5.  She goes on to argue that the Tribunal went on to find:

“It follows that there must be some other reason for his withdrawing his proceedings, which was unconnected with his health.”

9	This, it is said, is identical to the reasoning of the Employment Tribunal in Teinaz v London Borough of Wandsworth [2002] IRLR 721 at paragraph 10 (1) – (8) in that in Teinaz the Tribunal found that, because of deficiencies in the medical advice given to the Applicant, his decision not to attend the Tribunal but to seek an adjournment “causes us to doubt whether his condition truly justifies being excused from the Tribunal hearing”: Teinaz paragraph 10 (6).  The Tribunal in that case describes the Applicant as having “chosen not to attend” the hearing: Ibid paragraph 10 (7).  The Court of Appeal held that the Employment Tribunal said that there did not appear to be any evidence before it that the Applicant had simply chosen not to attend, rather that he had been acting in accordance with medical advice: Ibid paragraphs 14; 24-26.  We were also referred to Andreou v Lord Chancellor’s Department [2002] IRLR 728 which reached a different conclusion on an appeal against the refusal of an adjournment.  Miss McCafferty seeks to distinguish the two cases and asks us to rely on Teinaz.

10	In reply, Mr Daniel Tatton-Brown argues that the finding by the Tribunal that the Appellant’s concerns about his health were not the reason for withdrawing his complaint were findings of fact that the Tribunal was entitled to make.  It did so because of its analysis of the medical evidence in paragraph 4.

In particular:

(i)	Dr Corr does not indicate how bad the Appellant’s palpitations were, and does not indicate that as a result of those palpitations he was unfit to attend a Tribunal;

(ii)	Dr Marchant does not give any indication of the severity of the palpitations or eczema, nor does she state that the combination of these conditions prevented the Appellant from attending the hearing;

(iii)	Neither doctor has provided any evidence of time off work as a result of the conditions, nor of how the conditions would affect the Appellant’s ability to attend the Tribunal.

11	Mr Tatton-Brown goes on to distinguish Teinaz on the facts because in that case there was clear medical evidence expressly stating that the Applicant should not attend court: Judgment paragraph 5.  The Court of Appeal found that the Employment Tribunal had taken into account an irrelevant consideration because it had said that the Applicant was “choosing” not to attend the hearing of the Tribunal.  There was express medical advice to the contrary.  There was no such medical evidence here.  Mr Tatton-Brown relies on Andreou for the need for relevant medical evidence on the fitness of a party to attend the Employment Tribunal.  He says that there was no such evidence here.

12	We agree with Mr Tatton-Brown.  Here the Employment Tribunal was faced with a withdrawal of the Originating Application on 9 May, some three weeks before the hearing, which was ostensibly based on medical grounds.  There had been an earlier adjournment in September 2001 for a similar reason.  There was no medical evidence before the Employment Tribunal which showed that the Appellant was unable to attend the Employment Tribunal.  Indeed, there was no evidence before the Employment Tribunal that the Appellant had seen any medical practitioner since December 2001.  In other words, the medical evidence is stale.  Furthermore, the Tribunal did not have the benefit of hearing the Appellant himself, but had to make what it could of a witness statement which was inevitably untested in cross-examination. It had to examine the reasons put forward as to why the Appellant could not attend a cost hearing which inevitably much less stressful than a full hearing on the merits.  No evidence was provided that the Appellant had had time off work at all as a result of his medical condition.

13	Under the circumstances we think that the Employment Tribunal was fully justified in concluding that the medical reasons were not the true reason for the Appellant withdrawing from the case on 9 May 2002.  The onus of proof was on the Appellant.  He failed to satisfy that onus of proof on the facts before the Employment Tribunal.

Ground 2

14	Miss McCafferty argued that the Tribunal erred in paragraph 8 of its decision in taking into account an irrelevant consideration in relying upon its adverse conclusion as a reason for awarding the Respondent its costs of the entire proceedings.  This is very much linked up with ground 1.  In our view it is quite clear that the Tribunal did not believe that the reason advanced by the Appellant for withdrawing the case was the real reason: decision paragraphs 6-7.  If the Tribunal could make that decision on the evidence before it (as we have held on ground 1) then it is clearly entitled to observe that it has doubts about the way in which the case had been conducted on behalf of the Appellant throughout and taking that into account as a relevant factor in deciding to award costs.  We find no error of law here.

Ground 3

15	Miss McCafferty argues that the Tribunal erred in taking account of a further irrelevant consideration, namely that in finding that the Appellant had acted unreasonably in acting in accordance with his medical advice, the Tribunal must have concluded that the only reasonable way for the Appellant to conduct the proceedings after the summer of 2001 was to pursue his claim in the face of medical advice to the contrary and/or to undergo a particular medical procedure to enable him to pursue his claim.  There is no finding or evidence that the Appellant was “acting in accordance with medical advice” when he applied to adjourn the case in September 2001, nor when he withdrew the case on 9 May 2002.  Neither is there any finding by the Employment Tribunal that the Appellant would be required to risk chest pain and palpitations or alternatively undergo invasive medical treatment if he continued with the case.  The medical evidence is simply lacking.  We have earlier pointed out there is no evidence that the Appellant consulted a medical practitioner after December 2001.  Furthermore, the Appellant could have withdrawn his claim at a very much earlier date.

Ground 4

16	Miss McCafferty then argues that the Tribunal failed to apply the requirements of Meek v City of Birmingham District Council [1987] IRLR 250 in that it did not explain why it rejected the Appellant’s argument that he should not have to undergo a particular medical procedure for the sole purpose of enabling him to pursue his Tribunal claim.  Mr Tatton-Brown points out there is no obligation on an Employment Tribunal to deal with every argument presented by Counsel in support of his or her case.  It is sufficient if what it says shows the parties, and if need be the appellate court, the basis on which it acted: see Eagil Trust Co Ltd v Piggott-Brown [1985] 3 All ER 119 at 122 per Griffiths LJ, cited with approval by Lord Phillips (MR) in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at paras 17-18.  In our judgment, the reasoning of the Tribunal satisfies these criteria.

Ground 5

17	Miss McCafferty submits that the Tribunal failed to take account of a further relevant consideration, namely a direction given by a Chairman (Mr B Buckley) at a Directions Hearing on 31 January 2002.  The Tribunal stated that was of no relevance to the Respondent’s costs application.  Mr Buckley ordered that the Appellant should confirm to the Respondent and the Tribunal 14 days before the full merits hearing fixed for 27 May 2002 that there was at that time (i.e. 13 May 2002) no medical reason why he would be unable to attend the hearing: EAT bundle page 44.

18	Miss McCafferty made a different submission to the Employment Tribunal on this direction.  She urged the Employment Tribunal to find that the Chairman’s order gave the Applicant a right to notify his withdrawal prior to that date without any implications.  The Tribunal rejected that argument: decision paragraph 6.  They were right to do so.  What she submits to us is a modified submission, namely that the direction was a “relevant factor in the exercise of the Tribunal’s discretion.”  It is quite clear from a careful reading of paragraph 6 of the decision that the Tribunal had the direction in mind but did not consider that it had any implications for its decision.  It was entitled to take that view.

Ground 6

19	Miss McCafferty argues that the Tribunal’s finding that the Appellant had acted unreasonably in withdrawing his application was wrong because he did so in the circumstances envisaged by the Tribunal’s direction referred to above.  This point is linked with ground 5.  In our view the Employment Tribunal were quite correct to conclude that Mr Buckley’s order was concerned with ensuring that the hearing would commence on 23 May 2002.  It did not contemplate withdrawal by the Appellant and it expressly made no reference to costs in such a situation.

Ground 7

20	Miss McCafferty argued that the Employment Tribunal erred in failing to take account of a relevant factor and/or in failing to give reasons for its conclusion at paragraph 8 of its decision to award the Respondent its costs of the entire proceedings, it concluded that the Appellant’s conduct had only been unreasonable since “the summer of 2001”.

21	Mr Tatton-Brown has pointed out that the Tribunal in this case gave far fuller reasons as to its decision on costs than would normally be expected.  He points to Verrechia v Commissioner of Police of the Metropolis [2002] 1 WLR 2409 where an appeal against a costs order was dismissed notwithstanding that no reasons were given for the order.  He points out that there was an obvious basis for awarding the full costs of the proceedings since it was the Appellant who had initiated the proceedings, adjourned them and ultimately withdrew them.  In addition, he had been the subject of several orders to make him disclose further documents or give further particulars.  The Tribunal found that he had been dilatory or given inadequate replies to these requests.  The withdrawal some three weeks before the 23 May meant that the Respondent had incurred costs from the date when the claim was first filed.

22	We agree.  We also note that the Tribunal found that the Appellant’s conduct in withdrawing the proceedings without good reason is part of “that same conduct” (that is, unreasonable conduct) which affected the whole case and the expenditure incurred by the Respondent.  Their perspective is that the whole exercise has been a fruitless one.  We see no reason why they should bear the costs of any part of the claim themselves.

Ground 8

23	Miss McCafferty argues that the Employment Tribunal failed to take account of a relevant factor, namely that only minimal costs should have been incurred between September 2001 and the adjourned hearing on 27 May 2002.  It seems to us that this is an issue of assessment of costs, not a point of law.  The order made by the Tribunal in this case is that unless the costs can be agreed it will be necessary for there to be a detailed assessment.  Any point on unnecessary costs incurred between September 2001 and 27 May 2002 can be dealt with then.  There is no error of law here.
Ground 9

24	This ground originally sought to argue that the Tribunal had acted in breach of natural justice in deciding to award the Respondent its entire costs of the proceedings without hearing argument from the parties on whether it should make an order for part only of the proceedings.  There is a difference of recollection by Counsel and no Chairman’s notes of evidence.  This ground of appeal is now somewhat modified.  Miss McCafferty argues that the Tribunal was obliged to make findings of fact and give reasons/conclusions to support an award of costs at each stage of the proceedings.  It was clearly open to Miss McCafferty at the Employment Tribunal to make submissions as to the period for which an order for costs should be made if the Tribunal was against her in deciding that it should make an order for costs.  She apparently did not do so.  However, when one looks at the Tribunal’s reasoning in paragraph 8 it is quite clear that it did consider relevant periods of time and reached a conclusion that it should order the costs to be paid by the Appellant for the whole period of the case.  It was a decision which it was entitled to make on the evidence before it.  There is no error of law here.

Ground 10

25	Miss McCafferty then argued that the Tribunal had erred in law in failing to consider the second stage of its powers under Rule 14 (1) of the 2001 Rules.  The argument is that the Employment Tribunal failed to follow the guidance of Mr Justice Lindsay in Monaghan v Close Thornton [Unreported, 20 February 2002] EAT/3/01.  At paragraph 22 Mr Justice Lindsay pointed out that an award of costs is properly a two-stage process.  First, the question is whether the discretion under Rule (now 14) has arisen.  Second, the question is whether the discretion should be exercised by making any, and if so, an award of costs.  We do not accept Miss McCafferty’s submission.
26	In our view it is quite clear that when one reads the first part of paragraph 8 of the decision, that the Tribunal specifically considered both issues.  First, they refer to the fact that they have decided that the Appellant’s conduct was unreasonable and, second, go on to say this: “we have also had to consider the nature of any Costs Order we could make as a result.” (our emphasis).  They then go on to consider the different periods and decide to make an order for the costs of the whole proceedings.  In our view this is sufficient to show that the Tribunal did consider the two-stage process.  There is no error of law here.

Ground 11

27	Finally, Miss McCafferty argues that there was a failure in law to award the Applicant his costs incurred after his withdrawal of his claim on 9 May 2002.  Such an application was before the Tribunal.  They were entitled to refuse it on the evidence before them.

28	For the reasons we have given, we have dismissed all of the Appellant’s grounds of appeal against this costs order.  In the circumstances the Employment Tribunal having come to the conclusion that it did, it committed no error of law in refusing the Appellant’s application for costs.

Conclusion

29	For these reasons the appeal is dismissed.