Fraser Tribunal Recuses Itself in Costs Hearing

The University and College Union (UCU) came back to the Employment Tribunal this morning in an attempt to punish Ronnie Fraser and his lawyers for trying to blow the whistle on institutional antisemitism in the union.  An account of the case itself, and the tribunal’s trenchant findings against Fraser, are on Engage here.  The union is now demanding £580,000 in costs.

The case for costs was to be heard by the same tribunal which produced the strongly worded substantive judgment rejecting outright the evidence given to it by 34 academic, labour movement and Jewish community witnesses about antisemitism in the union.

Fraser’s lawyers argued that the tribunal should recuse itself from hearing the case relating to costs because the tribunal had already expressed a clear opinion in its judgment not only on the substantive issue of harassment, but also on the issue of costs; for this reason, it had prejudiced its ability to be seen to be impartial in the hearing over costs.

Fraser’s Lawyers relied on precedent from the Employment Appeals Tribunal in which the findings of previous tribunals had been overturned on the basis that the original judgments had prejudiced subsequent decisions over costs.

Lawyers for UCU did not oppose the arguments for recusal.

The tribunal decided to recuse itself in this case.  The judge said that he did not accept that their judgment had already articulated a view on the question of costs, but he admitted that a reasonable outside observer may come to the conclusion that it had.

In this sense at least, the tribunal admitted that it had over-reached itself in its substantive judgment.

If UCU continues its bid to punish Ronnie Fraser, its case for costs may now be heard by a fresh tribunal.  However, it is not clear what evidence the UCU can adduce to show that Fraser’s claim was vexatious, since the evidence upon which it is relying is the relevant section from the judgment in which the tribunal appeared to prejudice the hearing on costs.

The relevant paragraphs from the original judgment are as follows:

Outcome and Postscript

177 The result is that the proceedings are dismissed in their totality. The Claimant has put before us one claim which, on initial examination, appeared arguable on its merits. Closer scrutiny, however, showed it to be clearly unsustainable. And, being hopelessly out of time, it is outside our jurisdiction in any event. The other nine claims are wholly unfounded and many are also defeated by the jurisdic tional time bar.

178 Lessons should be learned from this sorry saga. We greatly regret that the case was ever brought. At heart, it represents an impermissible attempt to achieve a political end by litigious means. It would be very unfortunate if an exercise of this sort were ever repeated.

179 We are also troubled by the implications of the claim.  Underlying it we sense a worrying disregard for pluralism, tolerance and freedom of expression,principles which the courts and tribunals are, and must be, vigilant to protect (for a recent example, see Smith-v-Trafford Housing Trust [2012] EWHC 3221 (Ch)). The Claimant and his advisors would have done well to heed the observations of Mr Beloff and Mr Saini concerning the importance which the law attaches to political freedom of expression.

180 What makes this litigation doubly regrettable is its gargantuan scale. Given the case management history, the preparations of the parties and the sensitivity of the subject-matter, we thought (rightly or wrongly) that it was proper to permit the evidence to take the course mapped out for it, provided that the hearing did not overrun its allocation. But we reminded ourselves frequently that, despite appearances, we were not conducting a public inquiry into anti-Semitism but considering a legal claim for unlawful harassment. Viewed in that way, a hearing with a host of witnesses, a 20-day allocation and a trial bundle of 23 volumes can only be seen as manifestly excessive and disproportionate. The Employment Tribunals are a hard-pressed public service and it is not right that their limited resources should be squandered as they have been in this case. Nor, if (contrary to our view) it was proper to face them with any claim at all, should the Respondents have been put to the trouble and expense of defending proceedings of this order or any thing like it.