Now, to be honest, Dr David Hirsh of the zionist Engage website gave me the tip-off in this post. He started factually enough:
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....So, it's all about costs and whether or not the Tribunal had made it known where it stood on the ussue.
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.
Now Hirsh gets a bit slippery:
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.
Now let's look at the parts of the judgment where the costs award against Fraser (and co) might be applicable:
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.Now the Tribunal did agree to the hearing so that could be a point in Fraser's favour but then again on hearing the case it found one of its ten claims was out of time and out of its jurisdiction and the other nine are "wholly unfounded".
Now the bits that could be said to touch on costs:
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.Now they seem to be complaining more about the cost to the Tribunal than to the UCU but there is a little word of sympathy for the union having to go to the "trouble and expense of defending proceedings".
Now, it could be that whoever hears the costs issue will not want to dissuade future complainants from er, complaining but clearly the only issue the original Tribunal can be challenged on and is being challenged on is the word or two it uttered touching on costs.
And yet here's Sarah Annes Brown of Harry's Place (who sensibly remove their wacky comments after a week):
Jewish Chronicle have put a marker down on the Recuse Excuse. Here's the JC's Simon Rocker from this morning's print edition (also on line, see link):
A battle over the legal costs relating to a defeated claim of antisemitic harassment is set to continue after a tribunal withdrew from deciding the issue.
The University College Union is trying to recover costs — understood to be around £600,000 — following the action brought against it by the director of the Academic Friends of Israel, Ronnie Fraser, who said its policy on Israel amounted to harassment.
The same tribunal, headed by Judge Anthony Snelson, which had rejected Mr Fraser’s claim in April was due to hear the case for costs.
But lawyers for Mr Fraser and for the solicitors who represented him in the harassment case, Mishcon de Reya, argued that the tribunal had been so scathing in their original ruling that they could not fairly settle the question.
The tribunal had dismissed Mr Fraser’s claim as “a sorry saga” and “an impermissible attempt to achieve a political end by litigious means”.
The UCU will now have to go to a new tribunal. Judge Snelson said: “We must recuse ourselves and a cost application should be listed before another tribunal.”I think Simon Rocker must be deliberately missing the point here. It wasn't the scathing nature of the FUCU judgment that was problematic for a costs hearing but the fact that the judgment could be perceived as having touched on costs. Rocker doesn't even mention that.
So the FUCUps are using the Recuse Excuse. Remember you heard it here first.