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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Jiad v. Byford & Ors [2002] UKEAT 1306_00_1405 (14 May 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1306_00_1405.html Cite as: [2002] UKEAT 1306__1405, [2002] UKEAT 1306_00_1405

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APPEARANCES

 

For the Appellant	DR JIAD IN PERSON
For the Respondents	MR J BOWERS QC Instructed by: BBC Litigation Department White City 201 Wood Lane London W12 7TS


 


MR JUSTICE BURTON

1. This is an appeal by Dr Jiad against the Decision of the Employment Tribunal at London Central, given on 11 August 2000. That Employment Tribunal had before it an application by the Respondents, Mr Byford, Ms Granger, Ms Youngson and Mr Dyke, who are all employees in various capacities of the BBC, to strike out the Appellant's claim against them under Rule 13(2)(d) of the Rules of Procedures. Rule 13(2)(d) reads:

"A tribunal may
…..

(d) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, frivolous or vexatious."

2. Pursuant to that application by the Respondents, the Employment Tribunal struck out the Appellant's claim and ordered him to pay the costs of the Respondents, to be assessed, if not agreed. It is against that Decision that the Appellant appeals.
3. Two matters must be dealt with to start with, in order to set the context. The first is the question of the identity of the Respondents. It is quite clear that the Originating Application brought by the Appellant named the four Respondents and no others. We shall, in due course, read the content of that Originating Application.
4. It is also clear that the Decision of the Employment Tribunal was in respect of an application by those four Respondents against this Appellant, as Applicant. No decision was made the Employment Tribunal in respect of any other party, no other party being before them. Dr Jiad has asserted before us today that he believed, although the BBC was not named by him in the original Originating Application, that in some manner, the BBC had become, or been treated as a party to the proceedings. Whether or not there be any substance to that, we made it clear in the course of argument that it was not for us to decide that issue. The BBC were not party to the Decision of the Employment Tribunal which is before us on an appeal, which was a Decision limited to whether the four named Respondents should have the actions against them struck out. Whereas it seems unlikely on what we have seen, that it can be said that in some manner or other, the BBC became a party to this application, nothing we say can reflect on that aspect if it be the case, and we are dealing only with the parties who were the parties to the Decision of 11 August and the parties to the appeal before us.
5. The second matter that must be dealt with preliminarily is the nature of this jurisdiction which was exercised by the Employment Tribunal. Dr Jiad has pointed out to us that in the words of the Rule, there is provision for the Tribunal to strike out or amend any Originating Application or Notice of Appearance, or anything in such Application or Notice of Appearance on the grounds there set out, and it was part of his submission before us that the Tribunal could have taken an alternative course to striking out.
6. In a moment we shall deal with the jurisdiction of striking out, but we should indicate that of course the position is that if the Tribunal had not considered it appropriate to strike out, then they would not have done so; but the reference to amendment in the Order does not appear to us to be relevant, at least in this case. It must, in our view, have two relevances in other cases. First, if the application before the Tribunal is to strike out some part of an Originating Application or a Notice of Appearance on the grounds, for example, that it is scandalous, making some reprehensible allegation, one way or the other, in one of the paragraphs of one or other of the documents, which cannot be justified and is, for example, simply done for the purposes of publicity or embarrassment, or something of that kind, not of course the case here, then the Tribunal may order that that particular part of the paragraph be amended, so as to exclude the scandalous allegation, or something of that kind.
7. A second relevance would be, where an application is made and looks as though it is going to be successful on the basis of the pleading as presently drafted, that it is very often the case that the proponent of that pleading, be he the applicant or the respondent, may persuade a Tribunal to allow him or her to save the pleading, by adopting an amendment which would undoubtedly be formulated by the litigant himself or herself, although I suppose in some cases there might be assistance by the Tribunal in the precise formulation of the amendment, consistent with the view, provisional or otherwise, that the Tribunal may then have formed. But again, that has nothing to do with this case. The Appellant's case at all times has been that his Originating Application in its pristine and unamended form should be allowed to go forward, and that there is no justification for the strike-out application or the strike-out decision, and he has put forward no alternative case that if, contrary to his contention, there is something wrong with his pleading, it could be saved by some amendment to it. In those circumstances we do not see that there is any force at all in his contention that some alternative option was available to the Tribunal. Either they were entitled to strike out or not.
8. As for striking out it is clear that this Tribunal, in paragraph 6 of the Decision, recognised that to strike out is a draconian measure, and also recognised that all circumstances should be taken into consideration, both of which are submissions which the Appellant emphasised and repeated before us; a draconian measure, obviously, because it means that the case is struck out without a hearing, and the corresponding assertion, that all circumstances should be taken into consideration, would involve not only that, before striking out, the Tribunal would want to consider the circumstances before them very carefully, but also the fact that the very striking out of the case means that there will not be a trial at which the full circumstances would then be fully investigated. It is, therefore, as the Tribunal said, a draconian measure, and only to be taken in cases where the Tribunal is clear that the case being put forward is unarguable and, as Mr Bowers QC has accepted in his written Skeleton Argument before us, for that purpose the case for the Appellant must be accepted. There is no question of assuming in favour of the Respondents that there is some alternative explanation based on some alternative set of facts put forward by them.
9. The fact that the remedy is draconian was recognised in recent dicta, in the speech of Lord Hope of Craighead in the House of Lords in Anyanwu -v- South Bank Students' Union, to which attention was drawn by His Honour Judge Clark on the preliminary hearing of this matter. Lord Hope at paragraphs 37 and 38 of his speech emphasised that discrimination issues of the kind that had been raised in that case should as a general rule be decided only after hearing the evidence. However, at paragraph 39 he made clear:

"Nevertheless I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. Time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail"

and it was that conclusion to which this Tribunal came and that conclusion which is challenged by the Appellant and supported by the Respondents.

10. The facts of the case which were before the Tribunal can be shortly stated, and they are so, by reference to an e mail sent by the Appellant to a Mr Byford, the first named Respondent, dated 7 February 2000. The incident in question is an incident which is alleged to have taken place earlier on that day at the premises of the BBC, where the Appellant, who is still employed by the BBC, was then employed also, and the background is that the third named Respondent, Ms Youngson, was an in-house employed solicitor at the BBC and had, it is alleged, wanted to speak to the Appellant.
11. The subject matter of the intended conversation does not matter, but it is common ground that, at that time, the Appellant was involved in litigation with the BBC, there being, indeed, two outstanding previous applications to Tribunals which he had brought against the BBC. The e mail, as quoted by the Employment Tribunal read as follows:

"I need your help to protect me from the bullying of your solicitor, Ms Janet Youngson. She came today at 4.50 pm, whilst I was serving a coffee for our ex-colleague and a professor of mass media at the Institute of Journalism in Tunisia ….She interjected herself forcefully and insisted in front of the guest to speak to me. When I said it was not appropriate she waited for me by the main lifts and accompanied me to our offices and said she was getting me to a meeting in Mr Muawad's office ….She accompanied me (just like a detainee) to the open plan of the Arabic Services …..The help I need is to ask you kindly to impress on Ms Youngson to stop jumping into the office as she likes and when she likes and bullying me. She is not my line manager and she is putting tremendous psychological stress and pressure on me. This disrupts my duties."

That sets out both the brief history of the incident, to be treated effectively as Further and Better Particulars of the Originating Application, and also the nature of the complaint that was made by the Appellant at the time.

12. The documents that followed on are relevant, not simply in order to complete the picture, but because the complaint against Ms Youngson relates to that incident, while the complaints against the other three Respondents relate to their alleged discrimination by failing to take adequate steps to investigate. The subsequent correspondence is as follows: the next e mail was sent by the Appellant to Mr Byford on 26 February 2000 with a copy to a number of people, among them

"Greg Dyke - and - Annette"

I am unclear who Annette is, but she is in that respect bracketed with Greg Dyke and Lesley Granger who is now also named, like Mr Dyke, as a Respondent. There are other people to whom the e mail was copied, Barry Langridge, Gamon McLellan and Adli Hawwari, who have not been named, as Respondents. That e mail stated:

"Dear Mr Byford

I wrote to you on 7 February 2000 on the bullying manner of your solicitor, Janet Youngson, I am disappointed that I had not received any reassurance for a protection for me as one of your long serving staff producers. I visited my GP on an emergency basis on the next day of the bullying incident suffering from emotional distress. He prescribed me with medication and he suggested to me to report back to the police, but I was reluctant to involve my employer, the BBC, in such a sensitive issue with the police, I waited, preferring seeking protection from you"

and then he continues with the letter.

13. On 27 February there was a response from Ms Granger to the Appellant and to Mr Byford, again with copies sent to all the recipients of the earlier e mail from the Appellant and in that document Ms Granger said:

"Dear Dr Jiad

As you know, Mark Byford passed your letter to me to reply. Unfortunately, I was in the United States at the time, and I apologise for the time it has taken to write back to you formally, I did however, on my return, take immediate steps to speak to Janet Youngson to find out the background and a letter is on its way to you. As you are currently in litigation with the BBC, our lawyers have to be in touch with you from time to time about the details of your case. The normal process would be for Janet, acting on your behalf, to deal directly with your legal representative. However, as you are not represented by a lawyer, and you do not wish to give her your telephone number, Janet has no alternative but to contact you directly"

I interpose to say that that is in issue and it is not intended by my reading the contents of this letter to emphasise the truth or otherwise of the contents of them, but simply to indicate the nature of the Appellant's case against the other three Respondents, in relation to their alleged failure to investigate.

"I believe that as you are both BBC employees it is reasonable for Janet to attempt to see you on BBC premises. I do not accept that this amounts to bullying or putting psychological pressure on you."

14. The letter to which Ms Granger had referred was, in fact, sent on 28 February, again, repeating that she had been asked to deal with the matter by Mark Byford, explains why she had held up her original response and continued as follows:

"You have now referred to the BBC's harassment policy, in relation to your complaint against Janet Youngson. As I said in my e mail, I would like to make it clear that on return from the USA, I took immediate steps to look into your complaint, as I would with any complaint brought under the BBC's harassment policy."

And then the letter continues at some length. The original letter making a complaint, of 7 February was passed on by Mr Byford to Ms Granger, as appears from the bundle of documents before us on 9 February, asking her to respond, but as has appeared, she appears to have been away in the United States for some time, and did not respond until 26^th.

15. On 27 February a further e mail was sent by the Appellant to Lesley Granger and Mark Byford, once again, with copies to the same six other recipients, and the Appellant said:

"It is sad to feel as if your reply condones harassment and bullying, which is a breach of BBC policy."

On 6 March, he e mailed Ms Granger to say:

"You promised and confirmed to me on 27 February that a letter was on its way to me. I have not received any letter yet."

It appears that he cannot, by then, have received the letter sent on 28 February, and then on 7 March, a further e mail to Ms Granger saying:

"I am greatly disappointed for your failure to protect me from bullying rather you were condoning such actions"

and he, apparently, had still not received the letter of 28 February which, presumably he must, after that have received. Finally, on 22 March, he sends an e mail to Mark Byford, Lesley Granger and Greg Dyke and Annette saying:

"Dear Mr Byford

I can see with deep regret that I have not been assured, in compliance with BBC policy on harassment, that I will not be bullied or harassed any more. Ms Granger's response was in contravention to the above policy."

16. The Originating Application which was issued by the Appellant, as we have indicated against the four individual Respondents but, on its face, not against the BBC, was received by the Employment Tribunal on 20 April 2000. It began as follows:

"I believe that the respondents:"

And then he names Mr Byford, Ms Granger and Mrs Youngson

"might have committed the unlawful act of direct and indirect Racial Discrimination and victimisation in breach of Race Relations Act 1976, BBC policies and guidelines on equal opportunity, harassment, fair treatment and others including failure to fairly and properly investigate a grievance.

(4) I would also like to adjoin in this application, and on similar grounds, Mr Greg Dyke, BBC General Manager …..

for his failure to fairly investigate an incident of bullying and harassment against me which might have been racially motivated in his capacity and duties to apply the Race Relations Act 1976 and BBC policies and guidelines."

17. The grounds of appeal by the Appellant against the Decision of the Employment Tribunal fall into four main areas, apart from his challenge to their Order for costs against him which, of course, stands distinct.
18. The first is that the Tribunal failed adequately, or at all, to consider the fact that the incident was not as they assert, one off, but that there had been, in 1999, earlier alleged incidents of what he describes to have been bullying or high handed conduct by Ms Youngson. So far as that is concerned, it is plain that the Tribunal was, and was entitled, to look at the case at its highest, brought by the Appellant, and as he accepted in the course of submissions before us, his case stands or falls by the incident of 7 February 2000. If that was, arguably, an act of discrimination, then he may be able, at a trial, to establish that that was one of a series of acts, such as to entitle him, if he were to seek to rely on them substantively, to rely also on any alleged earlier incident, even though those incidents would otherwise be out of time and statute barred.
19. If, on the other hand, looking at 7 February 2000 incident at its highest, he has no case for discrimination or victimisation arising out of it, then the fact that there may have been alleged incidents, some considerable time earlier, would be irrelevant. In those circumstances, it appears to us, and we conclude, that this is not a self-standing ground of appeal. It requires that the Tribunal look at 7 February, taking into account all the circumstances as they were put by the Appellant, and decide whether his case was or was not arguable on that basis, and that is what the Tribunal appears to us to have done.
20. The second issue related to what he called the issue of vicarious liability, which he asserts that the Tribunal got wrong. So far as this is concerned, the case falls differently as between the case against Ms Youngson, and the case against Mr Byford, Ms Granger and Mr Dyke. If the BBC were a party to this application, or indeed, any other application, and it were alleged against the BBC that one of the BBC's employees discriminated then, of course, the position is clear, statutorily and, indeed, at common law, that, subject to the usual defences, it would be likely that it would be at least arguable that the BBC would be vicariously liable for the act of such employee, as well as the employee being individually liable for his or her own act of discrimination.
21. However, that does not apply in respect of the position, simply, of other fellow employees of the alleged discriminator, even if they be more senior to him or her; and the case against the three other Respondents than Ms Youngson is not put by the Appellant on the basis that they are to be held liable in respect of the incidents of 7 February 2000, in any event. The case against them is said to be that they discriminated against the Appellant, or, it is unclear, perhaps even victimised him, by virtue of their alleged failure to investigate, fully or at all, the alleged incident of 7 February. So far as they are concerned, even between the three of them there appears to be a different position. Mr Byford was the recipient of the original e mail, but he appears to have asked Ms Granger to investigate; Ms Granger did investigate, but it appears not until after a gap whilst she was on holiday, and she did respond in a way that was not satisfactory to the Appellant. Mr Dyke's position is that he was simply copied in, as were indeed others, and as indeed was the unidentified, but bracketed, "Annette", and the case against him does not begin to be particularised in any way by the Appellant.
22. It appears clear to us that whatever might be the nature of the case against Ms Youngson, the Tribunal was entirely justified in dismissing the case in discrimination against the three whose role is alleged to have been to a varying extent an alleged failure to investigate, but the reasons which we set out in a moment, in relation to our belief that the Tribunal was correct in its striking-out against Ms Youngson, are the more strenuous and clear in relation to the dismissal of the case against the other three.
23. We turn then to the third matter which was addressed by Dr Jiad, and which he put at the centre of his submission. In order for discrimination to be established, there must be, and for the purposes of the strike-out there must be an arguable case of, detriment suffered by the alleged victim. The Tribunal summarised in paragraph 6 what Dr Jiad's case was as to this, he said:

"the effects of [this] harassment"

that is what he alleged occurred on 7 February

"were psychological, physical stress, depression, fear and humiliation."

To that, before us today, although it is not clear to us as to whether it was specifically raised by him before the Tribunal, he added loss of dignity because he referred to the BBC's harassment policy, which indicates that one of the justifications for having a policy to deter harassment is that employers are committed to providing a workplace in which the dignity of individuals is respected.

24. The case that was put before the Tribunal is that as a result of the incident on 7 February, the Appellant consulted his General Practitioner, and again by way, effectively, of particulars of his case on detriment, he relied upon a letter from his General Practitioner dated 9 August 2000, two days prior to the hearing, and of course, itself, some six months after the alleged incident. The letter is quoted in full by the Tribunal in paragraph 18, and it reads as follows:

"Mr Jiad consulted me on 9 February 2000 with a history of insomnia and depression."

I pause there to say that insofar as there is said to be a history of insomnia and depression, that, insofar as it occurred prior to 7 February, could not be relevant to his claim against these Respondents.

"He alleged that his symptoms followed an incident at work which made him feel bullied and humiliated.

He felt 'physically and psychologically wounded' by the actions of a female solicitor.

I prescribed amitriptyline 15 mgs nocte and reviewed his progress on 28 February when he was still feeling upset and depressed by the incident. He has not consulted me since 28 February about this matter."

And so it is clear that insofar as there was what was described as "insomnia and depression" he did not feel the need to consult his doctor again after 28 February, as is noted in paragraph 19 of the Decision. The Tribunal concluded in that paragraph that the alleged detriment was "tenuous", and in paragraph 19 also, the Tribunal said as follows:

"On the face of the Originating Application, the Tribunal is not satisfied that the matters complained of amount to detriments. The Tribunal notes that Adekeye -v- P O No 2 [1997[ IRLR 105 is authority that the provisions of the Act do not cover someone who is generally aggrieved."

25. Before us, the Appellant has referred us to the well known case of Ministry of Defence -v- Jeremiah [1980] ICR 13 and to an unreported decision of His Honour Judge Peter Clark, at the EAT, of 13 February 2001. In the former case, a detriment was identified by the Court of Appeal by reference to a financial loss. In the latter, a detriment was identified by way of the serious offence which was caused to the only black officer in the relevant force, by way of his being laughed at by white officers and consequently, degraded.
26. The latter decision of His Honour Judge Clark does not address, in detail, issues of detriment in the way that it was addressed in Adekeye or Jeremiah, and itself must be read subject to the subsequent decision to which we were referred by Mr Bowers QC. That is Shamoon -v- Chief Constable of the Royal Ulster Constabulary, a decision of the Northern Ireland Court of Appeal, reported at 2001 IRLR 520. That decision, although, of course, not strictly binding upon us, is nevertheless a decision of a friendly Court of Appeal within the United Kingdom, but its significance is that it specifically approves the decision of the Employment Appeal Tribunal in Lord Chancellor -v- Coker and Osamor [2001] IRLR 116 and further, it relies upon the decision of the Court of Appeal in Barclays Bank PLC -v- Kapur [1995] IRLR 87 which is, of course, binding upon us. The passage in the judgment of Lord Chief Justice Carswell at paragraphs 14 and 15 reads as follows:

"The Employment Appeal Tribunal in Lord Chancellor v Coker and Osamor [2001] IRLR 116 adopted, in our view correctly, a construction of 'detriment' ……holding that 'there has to be some physical or economic consequence as a result of discrimination to constitute detriment in this context, which is material and substantial.

This is in accord with the decision of the Court of Appeal in Barclays Bank PLC v Kapur[1995] IRLR 87, that an unjustified sense of grievance cannot amount to a detriment."

And it was pointed out that there was no loss of rank and no financial consequence, and, on the construction of detriment which they considered correct, they were of the opinion that no Tribunal, properly applying the law, could conclude that the applicant there had suffered a detriment.

27. We are entirely satisfied that the Employment Tribunal asked itself the right question, namely whether there was an arguable case that the detriment described by the Appellant, suffered as a result of the incident in which Ms Youngson stood by him in the hall of the BBC, wishing to speak to him, and when he would not do so, followed or accompanied him up into the lift and into his own office area, such that he felt, on his case, so distressed that he consulted his doctor two days later after suffering depression, could, at its highest, amount to detriment which is a physical consequence, or indeed, which is material and substantial, and that the conclusion by the Employment Tribunal in the light of the submissions made to them, that the case for detriment was tenuous, is one that they were entitled to come to.
28. The fourth ground which was put forward by the Appellant related to his attack on the Tribunal's further and independent conclusion, that this was not an act, even put at its highest, which fell within the race discrimination laws. He accepts that the law requires consideration of a comparator, be it actual or hypothetical, because before he can establish a case of race discrimination, he must show that the Respondents treated him less favourably than, in those circumstances, they treated or would have treated, other persons not of the same race. He submits that what occurred here, with Ms Youngson hovering over him and "escorting him", as he puts it, up into the lift, was harassment which fell within the BBC policy, which is of course why he complained about it to Mr Byford. But that, of course, would not mean that it amounts to racial discrimination or victimisation, and it needs to be looked at within the terms of section 4 of the Act, as the Tribunal did. He did not seek to identify, even on an arguable basis before the Tribunal, any comparator, and he points only to a Skeleton Argument which he put before the Employment Tribunal which read as follows:

"The incidents are unlawful acts of discrimination where less favourable treatment could be established through a comparison to hypothetical or actual comparators".

That clearly is an assertion that he made in the Skeleton, as to how it is that acts of discrimination can be established, but it does not show that he put forward, nor was it apparent from the Decision that he put forward, any actual such case. It is perhaps noteworthy that in his own application, from which we have quoted, the case against all the Applicants was only put on the basis that there 'might have been' or they 'might have committed' acts of discrimination.

29. The Tribunal's conclusion, in paragraph 20, was as follows:

"In addition, Dr Jiad must identify how the Respondents have treated him "less favourably than in those circumstances he treats or would treat other persons." In relation to a complaint of direct racial discrimination, Dr Jiad would have to show a comparator of a different race than his own who was more favourably treated. There is nothing in the Originating Application identifying such a person or, indeed, suggesting that such a person exists."

I should interpolate that in the course of argument before us today, Dr Jiad asserted that he was, or might be, the only Iraqi employee of the BBC. This is not only a fact that was contested by Mr Bowers QC on behalf of the existing Respondents, but a matter in relation to which, plainly, there was no evidence adduced below.

30. In relation to the complaint of victimisation, the comparator would be a person who had not done the protected act. Again, no attempt has been made in the Originating Application, or in the submissions to the Tribunal today, to identify any such comparator. We can see no basis on which we can, or would wish to, interfere in law with the conclusion which the Tribunal reached.
31. In those circumstances, we are entirely satisfied that with regard to the three who are alleged to have failed to investigate, a fortiori, Mr Dyke, who was one of the recipients of e mails, but even in relation to the lady who is alleged to have done the alleged acts of harassment on the ground floor and up in the lift of the BBC premises on 7 February, the Tribunal was entirely right to conclude, and certainly was entitled to conclude, that there was no arguable case against them of discrimination or victimisation within the act; that there was no arguable case of detriment; that there was no arguable case of less favourable treatment, and in relation to the three recipients of letters, that there was no arguable case that any act that they had done could amount to an act of discrimination, and for similar reasons, even if they could and/or could amount to victimisation, they failed for the same reason as those we have set out above in respect of Ms Youngson. In those circumstances, we conclude that the Tribunal was entitled and right to dismiss this claim at the summary stage; albeit that it was a draconian step, it was one which fell entirely within the principle which Lord Hope enunciated in Anyanwu, to which we have referred.
32. As for the Appellant's complaint in respect of the Order for costs it is, of course, not unusual, where a case is struck out as unarguable, for costs to follow the event. The grounds that are set forward by the Appellant are that the award of costs was oppressive and has abused the exercise of discretion, that finding an application to show no cause of action or be struck out is not, in itself, a call for an automatic award of costs, that the purpose of the legislation and justice is undermined, because it amounts to a double penalty in the event of both lack of success and an Order of costs; and further that the Employment Tribunal did not ask the Applicant for his means although, on examination, the Appellant accepted that in the course of the hearing he was given time, albeit he says, not as long an opportunity as he would have wished, to oppose the Order for costs, and that he did not, on the invitation of the Tribunal, put forward any case that he did not have means to pay, it being known, that he continued in the employment of the BBC.
33. In those circumstances, we have considered the grounds put forward by the Appellant and the award of costs against him by the Tribunal, which was set out in the following way:

"25. The Tribunal considered that Dr Jiad's claim was entirely without merit and, having found that it should be struck out as vexatious, he had acted vexatiously in bringing the proceedings, and accordingly an order for costs under Rule 12(1) was appropriate. The Tribunal took into account that Dr Jiad was working as a producer with the BBC and therefore did have an income. It is the unanimous decision of the Tribunal to order that Dr Jiad pay the costs of the Respondents in these proceedings"

We can see no ground to challenge that conclusion whether, as a matter of law or, indeed, so far as it was an exercise of discretion. We therefore dismiss the appeal.