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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ayobiojo v London Borough Of Camden [2003] UKEAT 510_02_0302 (3 February 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/510_02_0302.html Cite as: [2003] UKEAT 510_02_0302, [2003] UKEAT 510_2_302

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APPEARANCES

 

For the Appellant	MR FRED EDWARD JNR (of Counsel, non-practising) Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX


 


THE HONOURABLE MR JUSTICE RIMER

1. This is the preliminary hearing of an appeal by Mrs A W Ayobiojo against a decision of an Employment Tribunal sitting at London Central on 25 January 2002, and chaired by Miss A M Lewzey. The Tribunal's extended reasons were promulgated on 18 February 2002. Mrs Ayobiojo was the unsuccessful applicant before the Tribunal and the London Borough of Camden ("Camden") was the successful respondent.
2. By the time Mrs Ayobiojo's application came before the Tribunal, it had had something of a history, although we do not know the full details of it since the material we have does not explain it in a very comprehensive way. However, we know that Mrs Ayobiojo was, until 31 March 1999 when her employment terminated, a personal assistant in Camden's building design department. The originating application with which we are now concerned was presented by her as long ago as 24 February 1999, that is shortly before her employment terminated. She raised in it eight heads of complaint of sex discrimination, victimisation, harassment and constructive dismissal. They were detailed over some three pages, which she said she would expand in her witness statement where necessary. In its very full notice of appearance, dated 23 March 1999, Camden denied all her claims, put them all in issue and asserted that Mrs Ayobiojo was still employed it, as indeed she was. On 28 July 1999, by which time her employment had terminated, and had in fact been terminated - for almost four months - Mrs Ayobiojo presented a further application to the Employment Tribunal, this time claiming unfair dismissal.
3. There was a preliminary hearing on Mrs Ayobiojo's first application on 9 July 1999 and a further preliminary hearing on 22 September 1999 on both her applications, which had by then been consolidated. At the latter hearing, the Employment Tribunal struck out parts of Mrs Ayobiojo's claims under her first application and ruled that they had no jurisdiction to hear the unfair dismissal claim under her second application as being presented out of time. Mrs Ayobiojo appealed to this Appeal Tribunal against those decisions and her appeal was, at least in part, allowed to proceed to a full hearing but was then dismissed by Mr Justice Lindsay (the President) on 9 May 2001.
4. Following that, there was a directions hearing on the remaining issues, raised by Mrs Ayobiojo's application. This took place before Mr D J Latham, the Employment Tribunal Chairman, sitting alone on 29 November 2001. At that hearing, Mrs Ayobiojo sought leave to amend her originating application, but Mr Latham refused that application. He fixed the substantive hearing of her originating application to be heard over four days commencing on Friday 25 January 2002. His extended reasons for his decisions were promulgated on about 20 December 2001, and Mrs Ayobiojo received them about a week later.
5. Mrs Ayobiojo appealed to this Appeal Tribunal against Mr Latham's decision by a notice of appeal dated 9 January 2002. On 11 January 2002, her solicitors, Cain & Abel Law Firm, wrote to Mr Latham and applied for a postponement of the substantive hearing fixed to start on 25 January. Her reason for that was because she contended that the hearing ought to be postponed until after the disposal of her appeal, since she hoped that the outcome of the appeal would be that the claims she could advance at the substantive hearing would be wider than Mr Latham had permitted on 29 November.
6. Mr Latham refused the application for a postponement, but indicated that Mrs Ayobiojo could renew it at the hearing of 25 January 2002, when Camden could also be heard on the matter. On 22 January 2002, the Employment Appeal Tribunal refused to expedite the hearing of Mrs Ayobiojo's appeal against Mr Latham's earlier ruling.
7. The substantive hearing of Mrs Ayobiojo's application thus came on before the Employment Tribunal on 25 January 2002. Miss Lewzey was the Chairman, Mrs Ayobiojo was represented by Mr Fred Edward, a non-practising barrister and the senior partner of Cain & Abel, and Camden was represented by Mr D McCarthy of Counsel. It is the decision of that Tribunal made on that day which is the subject of the present appeal.
8. The substantive issues which were before the Tribunal were complaints by Mrs Ayobiojo of race and sex discrimination. At the beginning of the hearing, Mr Edward applied once more for a postponement of it. He had outlined his grounds in his firm's letter to the Tribunal, written on 24 January 2002. The point was a short one: Mr Latham's refusal on 29 November 2001 to permit Mrs Ayobiojo to amend her claim had "severely truncated" it and that refusal was now the subject of an appeal to this Appeal Tribunal. The letter asserted that in the circumstances:

"The case cannot possibly go ahead"

and added that

"Any attempt to go ahead with the merit hearing in the circumstances would appear, we submit, absurd and abuse [sic] of the judicial process by the Employment Tribunal. And the Applicant would not take part in such an attempt to deny her her right to fair hearing under Article 6 as laid down under The Human Rights Act."

Camden opposed any adjournment.

9. In their extended reasons, the Tribunal outlined the arguments as to whether or not there should be an adjournment of the substantive hearing until after the disposal of the pending appeal to this Tribunal. They then gave their reasons for refusing the adjournment. They pointed out that: (1) the originating application had been issued nearly three years before, and related to matters going back to 1997; (2) following the decision on the earlier appeal to this Appeal Tribunal, Mr Latham had identified the issues which remained to be resolved by Mrs Ayobiojo's application and had refused leave to amend it; (3) Mrs Ayobiojo had not appealed against that decision until 9 January 2002, although she had known of the decision on 29 November 2001; (4) the hearing date of 25 January 2002 had been fixed on 29 November 2001, and Mrs Ayobiojo had not sought to postpone it until her letter of 11 January 2002; (5) this Appeal Tribunal had, on the earlier appeal, as the Tribunal interpreted it, indicated in its judgment a concern that the case should be heard; and (6) Camden was prejudiced by the lapse of time that had occurred in the bringing on of the claim for a hearing, and was entitled to a fair hearing.
10. We interpret this last point to reflect Mr McCarthy's submissions, which the Tribunal's extended reasons record, that Mrs Ayobiojo's conduct of her application had resulted in the considerable time that had elapsed since 1997; that Camden had been prejudiced by that passage of time; that the disposal of the pending appeal to this Appeal Tribunal was likely to take a further significant time; and that to adjourn the substantive hearing until after then would involve further delay and prejudice.
11. Having refused the adjournment, the Tribunal indicated that they would proceed to hear the substantive application. Mr Edward's instructions did not extend to representing Mrs Ayobiojo on that, and so he withdrew. Mrs Ayibiojo had chosen to absent herself from the substantive hearing, and the letter of 24 January had, of course, indicated that she would take no part in the substantive hearing if the adjournment application did not go her way. Her stance was that, if the Employment Tribunal would not allow her to present the case she wanted to present, she was not going to present it at all. As the burden of proof on the substantive issues was on her, and as she made no attempt to prove her case, which was wholly disputed by Camden, the Tribunal dismissed her application and also exercised their discretion to order her to pay Camden £2180 towards its costs of 25 January 2002, indeed, not towards it costs, but in respect of its costs of 25 January 2002.
12. By her notice of appeal dated 2 April 2002, Mrs Ayobiojo appeals against all these orders made by the Tribunal on 25 January. Mr Edward has appeared before us in order to persuade us that the appeal raises good arguable points of law which ought to be allowed to proceed to a full hearing. His skeleton argument opens by saying that:

"By implication this appeal is also against the decision of Mr Latham…
on 29 November 2001"

We make it clear, as emphatically as we can, that this appeal is not against that decision, either expressly or impliedly. That decision was the subject of the notice of appeal which Mrs Ayobiojo had issued on 9 January 2002. This Appeal Tribunal dismissed that appeal on the preliminary hearing of it on 7 March 2002, and the Court of Appeal refused permission to Mrs Ayobiojo to appeal against that decision in September 2002. The suggestion, therefore, that this Appeal Tribunal can be in any way concerned with the merits of Mr Latham's decision of 29 November 2001 is an absurd one. We do not, therefore, propose to take any more time in considering the points that Mr Edward's skeleton argument appears to make in relation to Mr Latham's ruling.

13. The first point to consider on the appeal which is before us is the complaint that the Employment Tribunal were wrong not to adjourn the substantive hearing until after the disposal of the then pending appeal against Mr Latham's Decision. Mr Edward's main point is that, once the appeal against that decision had been instituted, the Employment Tribunal could, in effect, only exercise its discretion one way, namely to adjourn the substantive hearing until after the disposal of the appeal. His skeleton argument submits that:

"it is a fundamental principle of law and rule of procedure and precedent that a lower court or Tribunal must defer to a superior court or Tribunal once that superior court has properly seised of the case involving the same subject matters which was for determination before the inferior court or Tribunal."

We wholly disagree with the way in which Mr Edward so advances this point, and we are of the clear view that there is no such fundamental principle or rule. The mere fact that Mrs Ayobiojo had presented an appeal to this Appeal Tribunal against Mr Latham's Decision did not require the Employment Tribunal to adjourn the substantive hearing. It was, of course, a matter for it to take into account in considering the adjournment application, and in many cases an Employment Tribunal might well consider it appropriate to defer proceeding further with an application before it until after the disposal of an appeal against an interlocutory decision made in the course of the application. But every case turns on its facts and we are in no doubt that the fact that an appeal had been instituted against Mr Latham's decision did not require the Tribunal to postpone the hearing of the substantive hearing. The Tribunal had a discretion as to whether or not to do so, and exercised it in the way they did, having regard to the various matters we have summarised. They said, in paragraph 30 of their reasons that:

"….. all the factors weigh against a postponement of the hearing."

We cannot identify any factor they pointed to that might be said to have supported a postponement. It is apparent to us that the main matter that weighed heavily with the Tribunal was the delay to the date in bringing the matter on for hearing, that that delay had prejudiced Camden, and that any further delay would prejudice it further. They also attached weight to the fact that Mrs Ayobiojo did not appeal against Mr Latham's decision until 9 January 2002, and did not seek a postponement until 11 January 2002.

14. In his skeleton argument, although he did not develop the point in his oral argument to us, Mr Edward criticised the Tribunal's reliance on the alleged delay in instituting the appeal because Mr Latham's extended reasons were not, it is said, received by Mrs Ayobiojo until about the end of 2002. Any notice of appeal had to annex those reasons to it (see Rule 3(1) of the Employment Appeal Tribunal Rules 1993) and so it is said that Mrs Ayobiojo could not have appealed much earlier than she did. That is a fair point, although it is not clear that it was made to the Tribunal on 25 January 2002, even though it is clear that Counsel for Camden made a point about the delay until 9 January 2002 before the institution of the appeal. It may, therefore, be that the Tribunal did not have their minds addressed to this particular point, and, if so, the criticism that they did not take it into account becomes somewhat diluted. But if the Tribunal were, to any extent in error in this respect, we do not regard their error as one which can arguably be said to undermine the validity of their decision on the adjournment application . Even accepting that they may have attached more weight to this point than they should, it was merely one of "all the factors [weighing] against a postponement of the hearing". As we have said, the Tribunal do not appear to have identified any factor which might be said to have supported a postponement of it, and we do not consider it arguable that, had the Tribunal had in mind the point about Rule 3 that Mr Edward makes, it would have made any difference to their conclusion on the matter. The substance of what the Tribunal were saying with regard to this particular point was that Mrs Ayobiojo had not evinced any fixed intention to appeal until 9 January 2002, and even if there were technical procedural difficulties in actually instituting an appeal much before then, she could at least have informed Camden promptly after 29 November of her intention to appeal once the extended reasons were available, although there is no suggestion that she did so. Insofar, however, as the Tribunal were in any sort of error on this particular point, we regard it as the sort of "harmless error" that Lady Justice Arden referred to in Teinaz -v- London Borough of Wandsworth [2002] IRLR 721, paragraph 36.
15. We have considered, although the Tribunal does not appear to have done so overtly (at any rate in its extended reasons) what the position might have been had (1) the Tribunal gone on to deal with the substantive application, and (2) this Appeal Tribunal had subsequently allowed Mrs Ayobiojo's appeal against Mr Latham's decision, so showing that the issues at the substantive hearing should have been more wide-ranging than they were. It seems to us that the answer is that it would then have been open to Mrs Ayobiojo, if so advised, to seek a review out of time of the Tribunal's decision, under Rule 13(1)(e) of the Employment Tribunals Rules of Procedure.
16. In our view, the Employment Tribunal's decision not to adjourn the substantive hearing was one which was, par excellence, a matter for their discretion. Having regard to the prolonged interlocutory history of the matter, and the delay in bringing it on for a hearing, we consider that their decision not to adjourn pending the disposal of yet another interlocutory battle in this Appeal Tribunal was one which was well within their discretion, and that it is not arguable that their decision was perverse or was one to which no reasonable Tribunal could have come, or one which fell outside the generous ambit within which reasonable disagreement is possible (see again Lady Justice Arden in the Teinaz case, paragraph 35).
17. Having refused to adjourn the hearing, the Tribunal then went on to deal with the substantive application. As Mrs Ayobiojo had not instructed Mr Edward to represent her on it, and as she had decided not to represent herself on it (that had been indicated in the letter of 24 January) there was no one before the Tribunal to present her case. Mr McCarthy's submission was, therefore, that there was no evidence before the Tribunal in support of the application, so that the Tribunal ought to dismiss it. He referred the Tribunal to Rule 11 (3) of the Employment Tribunals Rules of Procedure, which reads:

"If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 10(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

The Tribunal referred in terms to that rule, recorded that Mrs Ayobiojo was not there, and that she had chosen not to be there. They then said as follows:

"37 …. When the Chairman asked Mr Edward during the postponement application where the Applicant was she was told that the Applicant was too upset and distraught at the attempt to deny her a fair hearing to attend. Mr Edward has excused himself on the grounds that he was only instructed to apply for a postponement.

38. There are no witness statements from Mrs Ayobiojo to indicate her readiness to proceed notwithstanding clear directions made by Mr Latham on 29 November. It is quite clear to the Tribunal that Mrs Ayobiojo has taken no steps to prepare herself for the hearing today.

40. The Tribunal has read Mrs Ayobiojo's Originating Application, the Notice of Appearance, the Further and Better Particulars of the Originating Application, the decision of the Employment Tribunal chaired by Mr Charlton on 22 September 1999 and the judgments of the Employment Appeal Tribunal on 25 May 2000 and 9 May 2001. We have taken these documents fully into account in reaching our decision.

41 Mrs Ayobiojo has produced no evidence and the burden of proof in the three complaints remaining namely Cases A, C and E, falls on her. The Respondent is prepared and ready to proceed and has produced three witness statements.

42 It is the unanimous decision of the Tribunal to dismiss the Originating Application in its entirety in the absence of the Applicant under Rule 11(3) of the Employment Tribunals Rules of Procedure 2001."

18. Mr Edward criticises the Tribunal's decision to dismiss the application. He says that the Tribunal abdicated their function under Rule 11(3). He says they did not consider Mrs Ayobiojo's application before dismissing it. In his skeleton argument he asserted that they failed:

"to hear [sic] Camden's witness statements and they also failed to consider the documentary evidence provided in the agreed bundle by the parties."

19. We, with respect to Mr Edward's argument, regard these points as hopeless. We have to confess to finding mildly surprising the proposition that, in a case in which Mrs Ayobiojo had made the positive decision not to attend before the Tribunal and endeavour to present and prove her case, the Tribunal were nevertheless under a wide-ranging obligation to examine all the material to which Mr Edward refers before coming to a decision as to how to deal with the case which, on one view, Mrs Ayobiojo could be said to have deliberately abandoned. But we accept, of course, that Rule 11(3) shows that it would not have been proper for the Tribunal simply to conclude that Mrs Ayobiojo's absence from the hearing entitled them, without more, to dismiss her application. They were required under that Rule to consider her originating application, and paragraph 40 of their reasons shows that the Tribunal did just that, and also considered the other documentary material to which they referred.
20. We also readily accept that the consideration of the material referred to in Rule 11(3) is not a mere formality which must be performed before a predetermined dismissal of the application. The point behind the requirement that the Tribunal should consider that material is that it may be that a consideration of it would show that, even though the applicant was not present, he or she was anyway entitled to at least some or all of the relief sought. The material might, for example, disclose that part of the claim was not in issue at all. But as we have said, perhaps more than once, every case turns on its facts. Having considered the material to which they referred, the Tribunal's assessment in this case was that the burden of proof on all the issues before the Tribunal was on Mrs Ayobiojo, but she had not produced any evidence to the Tribunal in order to support her case, let alone present herself for cross-examination on it. In those circumstances, the Tribunal concluded, entirely rightly it seems to us, that they had no choice but to dismiss the application, and that is what they did. We do not consider that there is any arguable point available to Mrs Ayobiojo that they were wrong to do so.
21. Mrs Ayobiojo's notice of appeal raises certain subsidiary points which can be said to relate to the decision to dismiss the application, and Mr Edward developed them in the course of his oral submissions. First, that Mrs Ayobiojo accuses Camden of having deliberately removed what Mr Edward asserts were crucial documents from the trial bundle prepared for the purposes of the substantive hearing on 25 January, which he says were vital to Mrs Ayobiojo's case.
22. Two documents are said to have been so removed. The first is a draft letter apparently dated 8 February 1999, and the second is what appears to be a letter of 12 February 1999, which essentially follows the earlier draft. The draft pre-dates, Mr Edward tells us, the outcome of a then pending internal appeal within Camden in which Mrs Ayobiojo was engaged, and which took place in March, and Mr Edward said that the substance of the letter of 12 February indicated that the outcome of the appeal was already, in effect, determined, so showing that the appeal was a sham.
23. We consider that there is nothing in this point at all. We comment that although Mr Edward tells us that he knew on the occasion of his application for an adjournment that these documents had, as he now claims, been removed from the agreed bundle of documents, he did not take any steps to inform anyone of that at the hearing, or at any rate he did not inform the Employment Tribunal of that. But in any event, there is nothing in Rule 11(3) to require the Tribunal to consider an agreed bundle of documents before coming to their decision as to how to dispose of an application in circumstances in which the applicant does not appear, and nor did they do so. We are, anyway, wholly unconvinced that a sight of either of these documents, even if the Tribunal had had a sight of them, would have caused the Tribunal to conclude other than that the case was one which they had no alternative but to dismiss, for the reasons they did dismiss it. The letter of 12 February does not, in fact, appear to be inconsistent with a conversation on 9 February, which Mrs Ayobiojo anyway refers to under her eighth head of complaint in her originating application. In any event, it still remained for Mrs Ayobiojo to prove her case. These documents may, of course, have been of relevance if the case had proceeded to a substantive hearing, but they do not, of themselves, prove Mrs Ayobiojo's case. It is possible, and we are prepared to assume, that they might have required an explanation from Camden in the course of its evidence. But they manifestly do not show either that Camden had no case or that Mrs Ayobiojo's application was bound to succeed.
24. The other matters which Mrs Ayobiojo's notice of appeal raises relate to certain complaints she makes as to the range of issues the Tribunal considered, to the extent they did consider any issues at all, once they embarked on the substantive hearing, that is having dismissed the adjournment application. The Tribunal referred in paragraph 22 of their reasons to the various previous rulings of the Employment Tribunal and of this Appeal Tribunal and recorded that they distilled from that material that the issues which remained alive for determination at the substantive hearing were those which had been identified as Cases A, C and E. Mr Edward complains that the Tribunal ought also to have regarded the facts pleaded under Case B as also before them, because even though Case B had been struck out, the Case C claim had included an assertion that "the Applicant repeats paragraph A and B above". There is nothing in this. Case B had been struck out, which included all the paragraphs pleaded under it, and to the extent that the Case C claim purported to repeat the paragraphs comprising the Case B claim, it was repeating allegations which had been struck out and so could not therefore place reliance on them.
25. This is the view we infer the Tribunal took, and we consider that it was right to do so. The subsequent dismissal of Mrs Ayobiojo's appeal to this Appeal Tribunal, which we understand to have related to the like point, demonstrates that the Employment Tribunal, on 25 January, was correct. But even if they were not correct so to conclude, they were still entitled to conclude, as they did, that in the absence of any evidence called by Mrs Ayobiojo in support of her various claims, they must all fail. We conclude that there is nothing in any of the various criticisms which Mrs Ayobiojo's somewhat ill-drawn notice of appeal directs at the Tribunal's conclusion that her application should be dismissed. We are not satisfied that any of them identifies an arguable error of law on the Tribunal's part in their decision to dismiss the application.
26. Having so dismissed Mrs Ayobiojo's application, Camden sought an order that Mrs Ayobiojo should pay its costs of 25 January, comprising Mr McCarthy's brief fee of £2000 and £60 per hour for three hours of his solicitor's time for attendance on that day, totalling £2180. The Tribunal referred to Rule 14(1) of the Employment Tribunals Rules of Procedure, which reads, so far as material:

"14 Costs

(1) Where, in the opinion of the tribunal, a 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;"

27. The argument in favour of the making of the costs order was that Mrs Ayobiojo had acted unreasonably in not attending the hearing on 25 January, but had merely instructed Mr Edward to apply for a postponement. It was further argued that, but for the conduct by Mrs Ayobiojo and her representative in relation to the case, it would have been heard earlier than 25 January 2002. The Tribunal's reasoning and decision on the point were expressed as follows:

"46 The Tribunal took into account that the case has been listed for hearing since 29 November and that it was made clear that the postponement application could be revisited on the morning of the hearing. The Applicant herself has not attended nor has she provided any medical certificate for her non-attendance. We were simply told that she was too upset and distraught to attend. We took into account that Mr Edward was not even instructed to present her case in her absence and that this is a situation where the Originating Application was presented on 26  February 1999 and has been before a Tribunal in September 1999 and before two hearings of the Employment Appeal Tribunal and the further directions hearing.

47 We were satisfied that both the Applicant and her representative have acted unreasonably in not being prepare [sic] and not attending the hearing and that it is appropriate for an order for costs to be made."

28. We have to say that we do not find the matters referred to in the last sentence of paragraph 46 very cogent ones for playing a part, if that is what they did, in the decision to order Mrs Ayobiojo to pay the costs of 25 January. The fact that the proceedings had been somewhat protracted, involving various interlocutory battles, both before the Employment Tribunal and the Appeal Tribunal, did not of itself point to unreasonable conduct on either her part or that of her representatives. Moreover, if any earlier step in the proceedings had involved or amounted to unreasonable conduct, then that could and should have been the subject of an application for costs at that earlier stage. We do not see by reference to what principle of fairness or logic it was right to order Mrs Ayobiojo to pay Camden its costs of 25 January because of some unspecified earlier suggested misconduct in the proceedings by her or her representatives.
29. So, in our view, the only basis on which the Tribunal could award costs against Mrs Ayobiojo was because her failure to attend on 25 January amounted to unreasonable conduct on her part and, indeed, we interpret that as the real reason for the costs order which the Tribunal made.
30. We consider that it is arguable that, in so approaching the matter, the Tribunal may have fallen into error. We presume that Camden prepared for the hearing on 25 February on the basis that there was going to be a full hearing on the merits, although in the event the only contentious hearing was on the adjournment application. If Camden had been told in advance that Mrs Ayobiojo intended to apply for an adjournment on 25 January but that, if her application failed, she would not either attend or be represented on the substantive hearing, then Camden would still have had to incur costs in preparing for 25 January, although it may be that in that event the costs of preparation would have been less than in fact they were. We are satisfied that it was unreasonable conduct on the part of Mrs Ayobiojo, not to give Camden due warning that she would at most only be seeking an adjournment on 25 January, so that Camden could tailor its preparation for that day accordingly. But since Camden would in any event have had to attend the hearing on 25 January, we regard it as arguable that the Tribunal's decision that Mrs Ayobiojo should pay all Camden's costs of that day, was a decision arrived at in error: the error, of course, being that the Tribunal failed to take account of the fact that Camden would anyway have had to incur at least some costs for the purposes of the hearing on 25 January.
31. In our view, therefore, it is at least arguable that the Tribunal was in error in not enquiring whether Camden's costs of 25 January had been increased by reason of the lack of reasonable forewarning that, whatever happened, Mrs Ayobiojo would not be presenting a substantive case to the Tribunal; and, if the answer to that was "yes", in limiting the award of costs against Mrs Ayobiojo to that increased element of its costs. If in fact the costs had not been so increased, then we would consider it arguable that no costs should have been awarded at all. In short, we consider it arguable at a full hearing of this appeal that a proper exercise of an Employment Tribunal's discretion under Rule 14(1) requires it to identify a causal connection between the unreasonable conduct and the incurring of the costs which it orders the paying party to pay.
32. We will, therefore, permit ground nine in Mrs Ayobiojo's notice of appeal to proceed to a full hearing, but we dismiss her appeal insofar as it claims to rely on grounds one to eight. We will direct Mrs Ayobiojo to amend her Notice of Appeal by deleting each of grounds one to eight, and to re-serve the amended Notice of Appeal.

[Permission to appeal is refused]

[To Mr Edward]

33. We will direct, then, that you amend the notice of appeal by deleting grounds one to eight and re-serve the amended notice of appeal. We will direct that this is a Category C case with an estimated time of half a day.

[To Mr Edward]

The amended Notice of Appeal to be served within fourteen days.