Omilaju v Waltham Forest London Borough Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE MAY,Lord Justice Dyson,Lord Justice Wall,Lord Justice May
Judgment Date11 November 2004
Neutral Citation[2003] EWCA Civ 1426,[2004] EWCA Civ 1493
Docket NumberCase No: A1/2004/0815EAT/0941/03,A1/2003/1826
CourtCourt of Appeal (Civil Division)
Date11 November 2004

[2003] EWCA Civ 1426






Lord Justice May


Folu Omilaju
London Borough of Waltham Forest and Others

The Applicant appeared in person

Thursday, 2nd October 2003


This is an application by Mr Omilaju for an extension of time in which to apply for permission to appeal against part of a decision of an Employment Appeal Tribunal, presided over by Wall J, on 30th April 2000. It was a preliminary hearing at which the tribunal considered two appeals by the applicant against decisions of an Employment Tribunal held at Stratford firstly promulgated on 24th September 2001 and secondly on 9th January 2002.


The applicant made claims in the Employment Tribunal against the respondent, London Borough of Waltham Forest and two of its employees, in respect of alleged unlawful direct race discrimination, race discrimination by way of victimisation and interference with trade union activities. These claims failed, I am afraid to say comprehensively, in the Employment Tribunal.


The Employment Tribunal had heard the complaints over no less than 19 working days between 9th July 2001 and 7th August 2001. They deliberated on their decision and they produced extended reasons for dismissing the substantive claims and allegations, which extended, in single space typing, to something in excess of 80 pages. Within those 80 pages they gave very careful consideration to a large body of fact and to numerous documents.


The first part of the Employment Appeal Tribunal's decision considered numerous grounds of appeal against the Employment Tribunal's substantive decision and came to the conclusion that there was nothing in these grounds of appeal which was remotely arguable or which would warrant the case going forward on its merits on the subsequent application to a full hearing. Accordingly the substantive appeal was dismissed. There is no application in this court in relation to that part of the Employment Appeal Tribunal's decision.


In the latter part of the Employment Tribunal's first extended reasons they turned to what they headed "Other matters" and made observations about the way in which the applicant had brought and conducted the proceedings before them both personally and through his representative.


As to the applicant himself, the Employment Tribunal was satisfied from the findings that they had made that in giving evidence he had manipulated the facts, ignored relevant documentary material, made false unfounded allegations against employees of the first respondent and been on some occasions dishonest and untruthful, and that he had pursued matters not in good faith.


The extended reasons proceeded to give considerable detail as to each of those findings covering a number of pages. The extended reasons then expressed concerns about the applicant's representative's conduct of the case, which they concluded in some respects had been unreasonable. They said in paragraph 14.2 of these reasons that all the above was relevant to costs. They referred to rule 14 in schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001 and they said that they intended to consider whether it was appropriate to make an order in respect of some or all of the costs of the case. They invited submissions from the representatives of the parties and they also invited them to tell the tribunal what they knew about the applicant's means.


The second decision which the Employment Appeal Tribunal considered was that on 9th January 2002, which was a decision as to costs. The unanimous decision of the Employment Tribunal, after a hearing on 17th December 2001, was that the applicant should be ordered to pay the costs of the respondents on a standard basis following a detailed assessment as follows: (i) all the costs of the adjournment of the hearing listed for and adjourned on 2nd November 2000; (ii) all the costs incurred by or on behalf of the respondent Mr Bevin Betton and Mr Barry Kendler; and (iii) 50 per cent of all other costs from receipt of the first originating application. The reference to the first originating application arose because there were in fact five originating applications, but they were all lumped together and the Employment Tribunal treated it as a single subject matter and a single hearing.


The Employment Tribunal gave extended reasons for this costs order. They referred to and quoted rule 14 of schedule 1 of the regulations, and in particular subrule (1), which provides:

"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 proceeding by a party has been misconceived, the tribunal shall consider making, and if it so decides may make:

(a) an order containing an award in respect of the costs incurred by another party."

Subrule (3) is to the effect that an award shall be of a specified sum of up to £10,000 or agreed costs, or the costs of the whole or a specified part incurred by way of a detailed assessment. Subrule (4) is a separate rule in respect of postponements and adjournments.


As they had done on the previous occasion, the Employment Tribunal gave very detailed reasons for their decision. They considered the law. They considered the parties' submissions. They held that the threshold for considering making an order under rule 14 had been reached, and they considered separately in their discretion whether they should make such an order, and they gave detailed reasons for reaching the conclusion that they should.


It was against that order that the applicant sought to appeal to the Employment Appeal Tribunal. The Employment Appeal Tribunal again considered the jurisdiction under rule 14(1) of the rules, a decision in relation to it and the details of the costs award that had been made.


Wall J said in relation to the adjournment hearing that the tribunal had taken the view that an explanation given by the applicant's representative was not sufficient to counter the submission that the applicant should pay the costs of that adjournment. Wall J said that the Employment Appeal Tribunal had looked at the reasons given by the tribunal and had come to the very clear view that it was quite impossible for them to detect any error of law in the exercise of the discretion which they had undertaken. He said this in paragraph 30 of the decision:

"The Tribunal was clearly entitled to make the findings which they made in relation to both the Applicant and to the manner in which the case was conducted before it. Those findings were very strong but the Tribunal had material on which it could make them. This Tribunal, in our judgment, has a limited function; we have to be satisfied that the discretion was properly exercised. Whether we would have exercised it in the same way, whether we would have made the same Order, is neither here nor there. Was this an appropriate exercise of the discretion which the Tribunal was given under the Regulation? In our judgment, having looked carefully at the Reasons which are given, we take the view that it would be quite impossible for any Appeal Tribunal to interfere with the exercise of that discretion, and under no circumstances could it be said to be plainly wrong."


One passage in the Employment Tribunal's extended reasons needs to be quoted. It is paragraph 4.2(iv) on page 126 of the bundle, page 7 of the reasons. It reads as follows:

"We acknowledge that the Applicant's basic salary may now be approximately £16,000 (that is, £5,000 less than the £21,000 he earned in 2000 with the Respondents) although we consider that as an estate agent he is likely also to earn commission. However, we are determined not, by reason of his relative impecuniosity, to reduce the costs that are to be awarded in this case. The law does not intend that poor applicants may act improperly with impunity. This is a matter which is properly relevant to enforcement and/or to the terms of enforcement."


The applicant needs a short extension of time for bringing this application. He has given a perfectly reasonable explanation why he was a bit late. I have no trouble in granting him that extension.


The amended grounds of appeal have been prepared for him by his representative, as I understand it, as has a written skeleton argument. The applicant, quite understandably, says that he is not in a position perhaps to understand all the details of matters that are in these papers, but he relies on those amended grounds of appeal and the written skeleton argument, both of which I have carefully considered.


There are four grounds of appeal. The first is expressed as follows: Whether the Employment Tribunal, in awarding costs against the appellant, should have taken the factor as to his ability to pay into account considering that the appellant has been out of work and has just taken up a lesser paid job as a trainee at the time. Reference is made in the skeleton argument to a decision of the Court of Appeal in Kovacs v Queen Mary and Westfield College [2002] IRLR 414, where it was held that ability to pay is not a factor which an Employment Tribunal is entitled to take into account when deciding whether or not to make an order for costs under the tribunal rules. It is then said that there is a new power, added by amendment, to...

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