Appeal No.	 EAT/0428/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 December 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR H SINGH
MRS J M MATTHIAS

MR T P CROOK	APPELLANT

MINISTRY OF DEFENCE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T P CROOK
(The Appellant in Person)	
For the Respondent	MR R COLEMAN
(of Counsel)
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London
SW1H 9JS	

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us by way of a Full Hearing the appeal of Mr T P Crook in the matter Crook v Ministry of Defence.  Mr Crook has appeared in person this morning.  Contrary to an impression which might have been gathered from his documents, he spoke only very briefly in his opening address, but rather longer in reply.  The Ministry of Defence appears by Mr Coleman. 

2	The first thing we had to deal with this morning was an application for an adjournment made by Mr Crook based on the late supply to him of documents by the Ministry of Defence.  We took the view that those papers were put in by the Ministry of Defence out of an abundance of caution and were not necessarily going to need to be referred to and in fact they have not needed to be referred to.  We permitted the matter to go forward without adjournment on the footing that if it transpired that the documents were referred to and that Mr Crook was therefore put at some disadvantage in not having had time to consider them, then we would then and there consider an adjournment.  However, as it has happened no renewed application needed to be made and the documents in issue were not referred to in any material way.  In fact, given the way that the argument has run, relatively few documents do need to be referred to.

3	The chronology is that on 6 September 1999 Mr Crook issued an IT1 for harassment against Group Captain Bullen.  That was given a number that ended 290/99.  It was for victimisation, as it would seem, on account of Mr Crook’s having expressed concern about some degree of contractual favouritism.  He also said that his attendance at a Master of Science course had been suspended because of ongoing disciplinary action against him.  On 12 October 1999 on behalf of the Respondent, Group Captain Bullen, an IT3 was put in saying that there was no statutory basis on which the claim made in 290/99 could be proceeded with and that the claim therefore should be struck out.  On 1 December 1999 there was a Directions Hearing and the Ministry of Defence was substituted as a Respondent for Group Captain Bullen, who then fell away as a party to the case.  An Order was made that within a specified time the Ministry of Defence was to be able to request further and better particulars and that if they did so then within a further period specified Mr Crook was to give further and better particulars.  At that time it was thought that the case could be set down, looking ahead, at a date in March or April 2000.

4	On 9 December 1999 Mr Crook issued a second IT1 that was given a number that ended 160/99.  He claimed relief in respect of being dismissed unfairly, he said, following a protected disclosure, although the nature of the protected disclosure was not identified.  The dismissal which he claimed had happened was on 9 December, the very day on which the IT1 was issued.  He had been employed from February 1989.  He was Station Energy Manager at RAF Lyneham.  That was his second material IT1 for present purposes.  On 10 December 1999 there was an Order in proceedings 290/99 for disclosure of documents by the Respondent.  They were required to disclose:

“All relevant documents.”

5	On 14 January 2000 there was an Order made in 290/99 for the RAF to produce a letter of a specified date - 8 January 2000.  On 19 January 2000 the Treasury Solicitor, in a letter, set out some 41 documents by list saying that if Mr Crook required copies of them would he let the Treasury Solicitor know.  At one point this morning it seemed that Mr Crook was saying he had never received that letter, although I am bound to say that it was very difficult to get a straight answer to the question of whether he had or had not.  I think we can only go forward on the footing that he did receive that letter on or about, say 20/22/23 January 2000.  Certainly there is no evidence to the contrary.  

6	On 20 January 2000 the Ministry of Defence put in an IT3 to 160/99.  They said that Mr Crook had in fact been dismissed for misconduct; that was their allegation.  The misconduct was said to have consisted of demanding money under a false pretence, absence from work without authority and failure to comply with a reasonable request.  The Ministry alleged that there had been no protected disclosure made and that in any event Mr Crook could not have thought that his disclosure was protected after he had received a particular letter from the Ministry of Defence of 26 August 1999.  

7	Mr Crook had made an application for interim relief.  On 27 January that came before the Employment Tribunal and his application for interim relief was refused.  Evidence was given.  It was a not insubstantial hearing.  As is the nature of those hearings, the Tribunal has to make some guess at how the case is likely to turn out and it seems they did not think very highly of Mr Crook’s case.  He had on that occasion, too, applied for an adjournment.  The basis on which he had applied for it was that he could not proceed properly and that the case could not fairly be dealt with further without further discovery.  The Tribunal ruled against that; that appears in a decision of the Tribunal on 27 January, sent to the parties on 3 February 2000, and also is referred to in the document which we will come on to shortly, which is the decision of the Tribunal that struck out Mr Crook’s claim (where they said, in their paragraph 11,  
à propos the hearing of 27 January, that the hearing had therefore addressed the issue of discovery and inspection, at least in relation to the interim relief application, and had decided that the application could proceed without further discovery).

8	So the case was set to go forward without further discovery at any rate at that stage.  By 16 February 2000, Mr Sara, the Chairman, saw a need for an Interlocutory Hearing to deal with a number of issues in both 160/99 and 290/99.  A date was fixed for 13 March 2000 for that Interlocutory Hearing.  Amongst the questions which the Chairman said would need to be dealt with was whether the applications (both of them) should be struck out as being conducted scandalously, frivolously or vexatiously.  The position was that Mr Crook had been deluging the Tribunal with correspondence and that practice had continued notwithstanding a warning that he should not.  

9	On 13 March 2000, the date fixed, a hearing took place at Bristol before a full panel of 3 members.  It was in both 290/99 and 160/99.  The result was given orally at the end of the hearing, namely that the 2 cases would be struck out.  On 15 March, before he had received the Extended Reasons for the decision, Mr Crook sought a review.  On 24 March the decision and the Extended Reasons were sent to the parties.  The unanimous decision of the Tribunal was that the Originating Applications (that is both of them) were struck out and the claims dismissed.

10	Although there is no appeal before us against that striking out order, there are some passages in the Tribunal’s judgment that need to be referred to, simply to give a flavour of the case as by then it seemed to be.  Thus in paragraph 8 of that decision the Tribunal said, à propos some complaints that had Mr Crook had been making about a Miss G, they said:

“Nevertheless it was clear at that hearing that the applicant was alleging that Miss G was deliberately spreading AIDS around the camp.  That, it seems to us, is a scandalous allegation within the normal meaning of that word.  Of course, if true it would be a very serious matter and the kind of disclosure that the Public Interest Disclosure Act is intended to protect and we, in considering this case, have been very much aware of the need to distinguish between our sense of revulsion at the allegation and the need for the applicant to have the opportunity to make out any allegation however scandalous.  It is however a matter of significance that the applicant has not produced either from his documentation or in the evidence before the interim hearing a shred of corroboration for his own allegations which are based on alleged admissions by her, which she denies.”

A little later in paragraph 9:

“Since the first proceedings were presented in September 1998 the applicant has conducted both sets of proceedings in such a way as to make it almost impossible for the case to proceed in a fair way."

(I am not sure the 1998 reference is right).  In paragraph 10 the Tribunal says:

“On 6 January 2000 the applicant was sent a letter by the Tribunal which said this: -
	“I am directed to inform you that we wish to make it clear that you should not write to the tribunal informing us of the steps you take in the action, but only where you are applying for some kind of order from the tribunal.  The tribunal is not in a position to process the volume of letters you send and if it does not diminish, further action will be taken.””

They then continue in their paragraph 11:

“On 14 January the Tribunal sent the applicant a very detailed letter dealing with his various points.  On 19 January 2000 the applicant was sent a further letter from the Tribunal the last paragraph of which stated: -
“Moreover, since January 2000 you have sent to the Tribunal some 24 separate letters.  This is not a reasonable way to conduct proceedings and you should limit your correspondence to what is strictly necessary…..””

They then comment that this did nothing to stem the flow of letters from the Applicant.

11	Dealing with that flow of letters, they continued in paragraphs 12, 13, 14 and 15, which I think we probably do need to set out:

“12	The flow of letters continued and on 16 February the tribunal decided to list the case for an Interlocutory hearing to deal first with the manner in which the proceedings were being conducted, then, if necessary, with a Pre-hearing Review and then with any Directions including any further discovery.
13	Now on 13 March just over 2 months from the letter of 6 January 2000 the tribunal has received over sixty further letters from the applicant, most of them with substantial enclosures.  It is clear that the applicant has totally ignored the indication in the letters of 6 January and 19 January.
14	That situation is made worse by the similar volume of correspondence which has been sent to people employed by the respondents to the extend that the bundle of documentation produced for this hearing (which excludes his correspondence with the tribunal) runs to five hundred and seventy pages the majority of which, consists of documentation produced in the applicant’s own hand.  The preparation of the case by the respondents has been made more by the applicants’ refusal to comply with the clear directions that he should send correspondence to the Treasury Solicitor who is acting on behalf of the respondent.  That has been made plain to the applicant both by the respondents and by the tribunal but he then persisted in writing to Group Captain Bullen who was the initial respondent in this case but who was removed as a respondent by the Tribunal’s Order of the 1 December 1999.
15	In addition to writing to the Tribunal and to the respondents, the applicant has written letters about the case to the Prime Minister, the Chancellor of the Exchequer, Secretary of State for Defence, The Solicitor’s Complaints Bureau, the Treasury Solicitors’ Complaints Department and the President of the Employment Tribunals, all of them complaining of the manner in which either the respondent or the tribunal has managed or conducted themselves in this case.  These have included complaints of dishonesty by the respondent’s solicitor and by the respondent’s counsel for which the applicant has not a shred of evidence.”

Then in paragraph 18:

“In our view, a person coming before an Employment Tribunal owes a certain duty to conduct himself in a proper manner.  He should comply with the Orders of the tribunal and with the directions that are given in order to speed the hearing and to clarify the issues.  Otherwise cases cannot proceed to a fair hearing.  A bombardment of paper of the kind perpetrated by the applicant prevents justice being done.  It is impossible for the Tribunal to extract any scintilla of merit which might lurk beneath and makes it impossible for the respondents to prepare their case.  It seems to us plain that the applicant has totally failed to comply with these principles.  He has conducted this case in a vexatious and, in certain respects, a scandalous manner and we have no hesitation in striking out the Originating Application.”

That gives a flavour of the reasons why the Tribunal struck out the 2 IT1s.

12	On 25 March, Mr Crook reapplied for a review.  It will be remembered that the earlier application had been at a stage when he had not seen the Extended Reasons because they did not then exist.  He applied to the President of the Employment Tribunals, His Honour Judge Prophet.  On 5 April 2000 there was a Notice of Appeal in both cases but it is only as to the failure to review.  In fact at that point, 5 April, Mr Crook had not been told that he was to be declined a review but he put in a Notice of Appeal on the basis that he had been refused a review on the ground that he had not yet heard the answer and time had passed.  He alleged bias and misconduct on the Tribunal’s part.  That Notice of Appeal of 5 April 2000 is given a number that ends 428/00.  On 2 May 2000 the review was in writing refused on the ground that it had no reasonable prospect of success.  As is usual it was refused, it would seem, by the Chairman alone although in fact the heading to the paper does mention all 3 of the persons who had been concerned in the striking out as being involved in the declining of the review but the language of the decision suggests it was in fact made by Mr Sara alone.  The decision was sent to the parties on 3 May 2000 and it says:

“In exercise of the powers conferred on me by Rule 11(5) of the Rules of Procedure set out in the Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, I refuse the application for Review made by the applicant in the letter dated 15 March 200 [2000] on the grounds that it has no reasonable prospect of success.”

On 26 May Mr Crook put in an affidavit as to the Tribunal’s bias which he said was manifested by their decisions.

13	On 7 June 2001 there was a Directions Hearing at the Employment Appeal Tribunal that came before me.  I made the comment that there was no appeal against the striking out itself.  That excited some response from Mr Crook that he had put in a Notice of Appeal against the striking out itself but no copy was produced then nor has it been produced since and, as I indicated then and as I indicate now, we can only go forward on the basis that there is no appeal against the striking-out order itself.  The appeal 428/00 as to the failure to review did seem proper to be sent forward to a Full Hearing, not on the basis that any clear error of law in the judgment was then identified but that it would be likely that the Employment Appeal Tribunal would need the assistance of both sides in order to come to an informed decision on the case.  I declined on 7 June to make an order for disclosure of any particular documents in relation to the appeal 428/00, which is, of course, the appeal which is in front of us.  So far as I know there is no appeal pending in the Court of Appeal or application pending in the Court of Appeal to overturn any part of the directions that I gave on 7 June.

14	So much for a chronological approach.  We ought to remind ourselves, I think, of the exact nature of the power to review.  The relevant rules have been changed from 1993 to 2001 but the particular edition that is relevant to this case is that of the 1993 rules of which Rule 11(1) says:

“Subject to the provisions of this rule a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that –
	(a)	the decision was wrongly made as a result of an error on the part of the tribunal staff;
	(b)	a party did not receive notice of the proceedings leading to the decision;
	(c)	the decision was made in the absence of a party;
	(d)	new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or
	(e)	the interest of justice require such a review.”

Rule 11(4) says:

“An application for the purposes of paragraph (1) may be made at the hearing.  If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full.”

Rule 11(5) says:

“An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in the opinion it has no reasonable prospect of success.”

Of those grounds, Rule 11(1)(a) to (e), only (e), as it seems to us, is relevant - the interests of justice.  It has to be noted that the grounds on which a review is requested have to be stated in full and in writing.  Those grounds, so far as stated in the letter of 15 March, were simply that the decision to strike out was wrong.  Mr Crook’s letter said:

“The decision to have my application ‘Struck out’ is wrong.”

15	On 25 March, as we mentioned, Mr Crook reapplied for a review.  It is, of course, the case that ultimately, although addressed to the President of the Employment Tribunals, His Honour Judge Prophet, the application came to the notice of the Bristol Tribunal.  The amplification that was then made was that the Tribunal at Bristol had been biased against Mr Crook.  Mr Crook gave a long catalogue of complaints against the Respondent in respect of its failure to supply documents.  He said there had been deliberate and vexatious conduct on behalf of the Respondents in not supplying documents and that that had been supported by Tribunal staff at Bristol.  He said:

“They prove the Respondent has lied and forced [I am having difficulty reading the writing - I’m looking at page 56 – I think it is forced] the direct order on him and also cause two orders on myself to be failed.
The tribunal at Bristol are not simply in error they have acted in bias and are guilty of misconduct with the Respondent.
The ‘Strike out’ order under schedule 1 13(2)(e) was at the direction of the chairman alone and not on application of the Respondent – deliberate act of bias.
A review is required in the interests of justice…”

It was also said that the earlier refusal to give interim relief to Mr Crook had been an indication of bias and misconduct on the Tribunal’s part.

16	Mr Crook’s complaints about the failure as to his being granted a review can broadly be divided into 2 main headings.  The first is complaint as to personal bias against the Tribunal in relation to the hearing of 13 March and in relation to the decision and Extended Reasons promulgated on the later date, 24 March, and that one can call ‘Category One’.  The other category, ‘Category Two’, is all other complaints made relative to that hearing, that decision and those Extended Reasons.

17	First we need to look at Category Two.  The Chairman in refusing a review dealt with a number of reasons in Category Two as follows; first of all he said at paragraph 3:

“The applicant’s first point is that the respondent “has behaved in a vexatious unreasonable and frivolous manner throughout the proceedings”.  As is clear from paragraph 11 of the Extended Reasons, the question of whether the applicant’s actions, as set out in the Reasons, were prompted by the failures of the respondent to give proper discovery were fully considered at the hearing and this point was rejected.  This, therefore, is a matter for appeal and not review.”

That reference to paragraph 11 is a reference back to the passage that we have already referred to, namely:

“The Tribunal did therefore address the issue of discovery and inspection at least in relation to the interim relief application and decided that that application could proceed without further discovery.”

It is a reference to the position as at the interim relief hearing on 27 January.  The case was held to be fit to go forward without any order being made there and then for further discovery.  It has to be remembered that the Ministry of Defence had already listed 41 documents or so in their list of 19 January 2000 and had indicated that if copies were required they could be supplied.

18	Mr Crook’s argument on this part of the case seems to us to be as follows: that the Respondent had behaved badly as to the supply of documents to Mr Crook.  That the failure by the Respondents to supply documents to Mr Crook meant in turn that he could not perform his (that is Mr Crook’s) duties as to documents and as to the supply of further and better particulars.  It was therefore wrong - so I think runs the argument - to blame Mr Crook, as he was blamed in the strike out proceedings, for not giving further and better particulars and not completing his discovery, and therefore the claim should not have been struck out as striking it out represented punishing the wrong side.   That, as it seems, is what Mr Crook’s case needs to be, and is, on this part of the matter.  I have already read the passage from the declining of the review as to a failure on the Respondent’s part to give proper discovery.  The next paragraph, paragraph 4 had said:

“His second point relates to his failure to comply with an Order for Particulars, which he attributes to the respondent’s failure to give Discovery.  This point is dealt with at paragraph 16 of the Extended Reasons.  It was fully considered at the hearing and is, therefore, a matter for appeal and not review.”

19	The Tribunal, as long ago as 27 January, albeit ruling then relative to a limited part of the case, ruled that the case was fit to proceed without further discovery.  If there was error of law in that then that should have been appealed against.  The Tribunal was right to take the point on 13 March 2000 that the Tribunal had said that the case could and should go on without further discovery.  The Tribunal was therefore right on 13 March not to exonerate Mr Crook on account of the other side, the Respondent’s, failings.  In turn the Tribunal was right to lay the blame entirely at Mr Crook’s door for his failure to supply particulars and his failure to supply documents.  It is in any event difficult to see how the Respondents could be blamed for Mr Crook’s failure to supply further and better particulars of his own case, or for his failure to produce such documents as he held.  The line between what is proper material for a review in the interests of justice and what is rather a matter for appeal can occasionally be difficult to draw but here we see no error of law in the Chairman’s view that this part of Mr Crook’s complaint was, if anything, proper for appeal and not for review.

20	The next of what one might call Category Two complaints, as understood by the Chairman at the review stage, was as he expresses it in his paragraph 5 where he says:

“His next point is that the striking out was not on an application by the respondent, but by the tribunal of its own motion.  It is apparent that the reason for striking out emanates from the way in which the applicant was conducting the case in relation to the tribunal itself as well as against the Respondent.  It was therefore quite appropriate for the tribunal itself to initiate the process of its own motion.  The contention was then pursued by the Respondents at the hearing.  The fact that the matter was raised by the tribunal of its own motion is not, therefore, of itself an indication of bias such as to warrant a Review under r. 11(1(e).”

21	We accept that proceedings to strike out under Rule 13(2)(e) can be set in motion by the Tribunal of its own motion.  Rule 13(2) begins:

“A tribunal may…”

and there is no restrictive provision such as to require application only to be made by a party or for the proceeding to be put in train only by a party.  Moreover, it seems to us necessary that a Tribunal should be enabled to start things of their own motion because it could well be that the other party or parties know nothing of the nature of the conduct which is causing the matter to be raised.  One could easily have conduct on, let us say, an Applicant’s part, which is unknown to the other parties but which consists of vexatious conduct by the Applicant - I am not here talking about Mr Crook, I am talking in general terms – behaviour which is vexatious in relation to the Tribunal or its staff for example but which is completely unknown to the other side.  So it is necessary for the Tribunal to be able to initiate the process of its own motion.  We do not read the express reference to “or of its own motion” in 13(2)(f) as being an exclusion of an application of the Tribunal’s own motion in 13(2)(e).  In other words, we see no error of law in the Chairman’s way of dealing with this issue in paragraph 5 which we have just cited.  That concludes Category Two.

22	As for Category One, which consists of complaints of bias on the part of the Tribunal, it cannot in our view be right to complain of bias to the very body accused of it.  The important judgment of the Court of Appeal in Lockabail UK Ltd v Bayfield Properties [2000] 2WLR at 885-886 plainly contemplates that a complaint of the bias or partiality of one Court or Tribunal is expected to be examined not by itself but by a reviewing Court or Tribunal – see passages at pages 885 and 886.  That was a case that was addressing cases as to the appearance of bias, arising, for example where, because of some association, a judge or juror was not a proper person to hear a case, or where there was some possible conflict of interest.  If that is appropriate in a case where only an appearance of bias is in issue, it seems to us that even more strongly would it be appropriate to go to a different reviewing body where what is in play is alleged to be actual bias on the part of the Judge or Chairman, which is the case that Mr Crook raises.  The insidious nature of bias is such that for the Judge or Chairman who is attacked merely to answer that he was not biased and that he had been impartial would be of little value.  The insidious nature of bias is referred to in the Lockabail case.  It is not for the Judge or Tribunal that is attacked to assess whether there was in fact bias or misconduct.  In other words, if personal bias on the part of the Chairman or the Tribunal was to be asserted relative to the hearing of 13 March 2000, the only proper course was to appeal to the Employment Appeal Tribunal and not to seek a review, as the review, by way of its very nature under Employment Tribunal Rule 11, could only be to one or more of the very people said to have been biased or to have been not impartial.  So far as the request to review based on the bias of the Tribunal is concerned the Employment Tribunal or the Chairman was entirely right to refuse the review on the ground that it was not possible.  As in other fields one has to select the right tool for the job and a review by the very Tribunal accused can no more be available as a tool to undo the Tribunal’s bias than one can use an axe as a spanner.

23	Mr Crook had his remedy, which was to appeal against the order to strike out.  We proceed, though, on the footing that there is no such appeal; none has been shown to us.  He had 42 days in which he was enabled to lodge that appeal; that is a generous period, longer than most cases are available to be appealed.  He did not avail himself of it.  The Human Rights Act was not in any event in play at the time and is not, generally speaking, retrospective.  Furthermore, it does not protect the rights of those who are given them but then chose or fail to exercise them.  So, what it comes to is that we are able to see no error or law - and we have to emphasise that it is only errors of law with which we can deal - in the decision of the Chairman not to review.  The appeal must therefore be dismissed.

24	Mr Coleman’s skeleton argument collects a number of other ways in which the appeal before us ought, as the Ministry would wish, to be refused.  We have not thought it necessary to explore further than we have gone in this judgment but it is not to be thought that we have ruled against the other ways of attacking Mr Crook’s appeal.  Rather, simply for the reasons that we have given, we dismiss the appeal.

25	At the end of the hearing which led to the judgment we delivered earlier, Mr Coleman, for the Respondent, on the instructions of the Treasury Solicitor, made application for costs.  He has, of course, referred us to Employment Appeal Tribunal Rule 34 and we have the terms of that Rule in mind.  The application on costs has been put on 2 bases.  First of all, that the appeal was vexatious, and, secondly, that it has been conducted in an unreasonable way.  It is said to have been vexatious in the sense that it was bound to fail; we are not convinced that that is an appropriate meaning of the word ‘vexatious’ in this particular context.  It may be that if an Appellant knows that his proceedings are bound to fail, especially if he pursues them with a view to causing delay, or to vex or to cause unnecessary expense without prospect of recovery to the other side, the fact that they were known to be doomed would make the proceedings vexatious, but, without more, the fact that the proceedings were bound to fail, even if true, seems not to us to carry the Treasury Solicitor far enough on the vexatious limb.  

26	The other limb is, as I mentioned, that the appeal has been unreasonably conducted.  Here, Mr Coleman, in paragraph 20 of his skeleton argument sets out in letters a) to f) a number of features which he asks us to have in mind.  He referred us to some others as well.  Those taken together do seem to us to illustrate the unreasonable conduct of the appeal.  We have given Mr Crook the opportunity of answering the points one by one but our feeling is that his answers tended more to inculpate him than exculpate.  For example, by reference to item c) of that list, it says:

“In a letter to Mr Justice Lindsay dated 4 December 200, Mr Crook accused the Treasury Solicitor of “vile, evil and scandalous action”.”

Mr Crook’s answer was that he thought that that was quite valid and that the Treasury Solicitor’s attitude had throughout been vile and disgusting.  As to d) where Mr Crook had accused the Chairman of the Bristol Tribunal of producing “a vile and untrue statement” and of “malicious libel”, Mr Crook’s answer was that there was nothing unusual about that.  Mr Crook has repeatedly throughout the conduct of the appeal spoken of deliberate and disgraceful lying on the part of the Respondents or the Respondent’s advisers.

27	These were not matters that could simply be totally ignored by the Respondent side; they had to consider matters and look at papers, and, in any event, unreasonable conduct is unreasonable conduct whether it excites expense to the other side or not.  We see this as an appeal which has been unreasonably conducted by Mr Crook on the Appellant’s side.  We are therefore of a mind to make an Order for costs.  As to its quantum, Mr Crook has addressed us in answer to questions as to his means; he is unemployed and has been for 2 years.  He was, before the end of his employment, on half pay for 6 months; he is a single man with no children, he has a home worth perhaps in the order of £63,000 with a mortgage of about £23,000 outstanding upon it, leaving an equity of redemption of about £40,000.  It is a house in Lincoln - 3 bedrooms, detached.  He says that he has no other income or capital, he has a few shares but only in what one might call penny numbers.  Rule 34, unlike some other Rules in the Employment Tribunal field (such as Rule 7, I think it is, of the Employment Tribunal Rules, which is the Rule under which deposits can be required) casts no necessary obligation on the Tribunal making the order for costs to look into the payor’s means.  We have done that, although strictly speaking we need not have done, and it is in any event more a question that arises at the enforcement stage than necessarily at the making of the Order itself.  We can either assess the sum to be paid or direct that it be assessed by a taxing officer.  We have been handed an estimate prepared by the Treasury Solicitors that comes to £6,770.  That does not include all of today’s costs but it does include costs not only of today but of the earlier hearing on 
7 June.  We do not regard that sum as being unreasonable in all the circumstances, but we think the better course is for costs to be directed to be assessed by the taxing officer and so what we shall do is order that Mr Crook do pay the Respondent’s cost of and incidental to today’s hearing and, so far as the hearing of 7 June related to this appeal, of and incidental to that hearing, the same to be taxed if not agreed and paid by Mr Crook to the Respondent’s solicitor, the Treasury Solicitor.