Scott v Russell

The Court of Appeal refused permission to appeal against the Employment Appeal Tribunal's dismissal of Mr Scott's appeals and its costs order. The court endorsed the Employment Tribunal's exercise of its broad discretion to strike out claims under Rule 18(7)(b) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Rules SI No 1861 of 2004 where claims have no reasonable prospect of success, and concluded that the tribunal was entitled to make a costs order under Rule 40 where a party has acted vexatiously or unreasonably.

The court also upheld the EAT's refusal to admit fresh evidence on appeal, applying the threefold Ladd v Marshall test as adopted in the EAT Practice Direction 2008: evidence could not have been obtained with reasonable diligence for use at the ET, the evidence would have had an important influence on the hearing, and it is apparently credible. The court found the applicant's proposed fresh evidence would not have affected the outcome and that the Registrar and the EAT were entitled to treat the appeal as misconceived.

Background and procedural posture:

• Mr Scott was employed as a part-time office manager in the constituency office of Sir Bob Russell MP and was summarily dismissed after a complaint by a colleague. He brought proceedings in the Employment Tribunal alleging unfair dismissal for making a protected disclosure under section 103A of the Employment Rights Act 1996, sex discrimination, and breach of contract.
• The Employment Tribunal conducted pre-hearing review hearings, concluded that the pleaded heads of claim had no reasonable prospect of success and struck out the claims under Rule 18(7)(b), and later ordered Mr Scott to pay the respondent's costs under Rule 40. The Registrar of the EAT refused permission to adduce further evidence on appeal. The EAT dismissed Mr Scott's appeals and ordered him to pay costs of the (misconceived) appeal against the Registrar's decision.

Nature of the application in the Court of Appeal: Mr Scott sought permission to appeal the EAT's dismissal of his appeals against the ET's strike-out and costs orders and the EAT's refusal to permit fresh evidence.

Issues framed by the court:

• Whether the ET and the EAT had erred in law or acted perversely in making costs orders against a litigant in person in circumstances where factual issues were disputed and much of the evidence arose during pre-hearing review.
• Whether the Registrar and the EAT were wrong to refuse admission of fresh evidence on appeal under the Ladd v Marshall criteria as reflected in EAT Practice Direction 2008.

Court's reasoning and outcome: The Court of Appeal emphasised that appellate interference with costs orders is limited and that tribunals are entitled to take a broad-brush approach. Having accepted that there was a sufficient factual basis for striking out the claims, the court held that the ET was entitled to find that the claims had no reasonable prospect of success and that the appellant had acted unreasonably and vexatiously in the conduct of proceedings. On the application to admit fresh evidence, the court agreed with the Registrar and the EAT that the material would not have had an important influence on the outcome and that the appellant had failed to follow the appropriate procedure under paragraph 7 of the EAT Practice Direction 2008. Permission to appeal was refused.

The Court of Appeal refused permission to appeal. The court held that the Employment Tribunal and the Employment Appeal Tribunal had properly exercised their discretionary powers: the ET was entitled to strike out the claims under Rule 18(7)(b) as having no reasonable prospect of success and to order costs under Rule 40 given the claimant's unreasonable conduct; and the Registrar and the EAT were entitled to refuse admission of the proposed fresh evidence on appeal under the Ladd v Marshall test as reflected in the EAT Practice Direction 2008.

Appeal to the Court of Appeal from the Employment Appeal Tribunal order dated 20 April 2012 which had dismissed appeals from the Employment Tribunal's strike-out order of 4 January 2011 and its costs order (ET). A rolled-up hearing was ordered by Mummery LJ on 13 November 2012 to consider permission and the substantive appeal together.