Ilesanmi v Greenwich & Bexley Cottage Hospice

On a second-stage appeal, permission requires a material error of law or another compelling reason. The appellate court cannot reopen factual findings made by the tribunals below. An Employment Tribunal may order costs under Employment Tribunals’ Rules, rule 40, where proceedings are found to be misconceived. The appellate court will not interfere with the amount of costs where the tribunal considered proportionality and the claimant’s means, unless an error of law is shown.

Mrs Ilesanmi renewed her application for permission to challenge an Employment Appeal Tribunal decision. HHJ Peter Clarke had upheld an Employment Tribunal order requiring her to pay £5,000 costs to Greenwich & Bexley Cottage Hospice. The Employment Tribunal had found her proceedings misconceived after hearing the evidence and had considered the respondent’s costs, proportionality and her means. The central questions were whether there was an arguable error of law in the decisions below and whether the amount of costs could properly be challenged.

The renewed application for permission to appeal was refused.

1. Permission at this stage could be granted only if Mrs Ilesanmi showed a material error of law or another compelling reason. Because this was a second-stage appeal, an even stricter test might apply. The Court of Appeal was not permitted to reinvestigate or reopen factual findings made by the tribunals below.
2. The Employment Tribunal had heard the evidence and concluded that the proceedings were misconceived. Its order requiring payment of costs was authorised by rule 40 of the Employment Tribunals’ Rules. The relevant question for the Employment Appeal Tribunal was whether the Employment Tribunal had been entitled, on the facts found, to reach that conclusion. HHJ Clarke had adopted the correct approach.
3. The findings that the grievance had been properly and genuinely investigated, and that the allegations were unsupported by evidence, disclosed no arguable error of law. Mrs Ilesanmi’s disagreement with those findings could not justify appellate intervention.
4. The alternative challenge to the sum of £5,000 also failed. The Employment Tribunal had considered her means and proportionality, and the Court of Appeal could not treat the amount as legally erroneous.

Order: application refused.

1. Court of Appeal (Civil Division): On 11 November 2011, Lord Justice Davis refused the renewed application for permission to appeal.
2. Employment Appeal Tribunal: On 31 March 2011, HHJ Peter Clarke upheld the Employment Tribunal’s costs order.
3. Employment Tribunal: In reasons dated 29 September 2009, the tribunal ordered Mrs Ilesanmi to pay £5,000 costs under rule 40.