April 18, 2014

FUCUps go for broke

I've only just seen this Engage piece by David Hirsh about a preliminary hearing on costs in the Fraser v University and College Union case.  The case was possibly the biggest disaster to befall the zionist movement in the UK since its inception with all of Fraser's claims of antisemitism against the union found to be "without merit".

Well next up came the question of costs.  Ronnie Fraser's lawyers argued at the costs hearing last year that the original tribunal had been so scathing that they had effectively decided the question of where they (the tibunal) stood on costs at the original hearing. In fairness, going from memory, the tribunal did say that the case was an enormous waste of money.  So the original tribunal recused (absented) itself and a new hearing was ordered.

Now Fraser's people are arguing that the delay should mean a decision in Fraser's favour.

The only report on this costs business is on Engage so see what you think:
It is possible for costs to be awarded against a claimant, but there are stringent conditions.  Firstly, the claimant must not only be wrong, his action must be “misconceived or otherwise unreasonable”.  And secondly the hearing for costs must be capable of being heard promptly and quickly, in summary form.

Lawyers for the UCU argued that both of these conditions could be satisfied.  They said that the new tribunal could have one day’s reading preparation for a costs hearing and the hearing itself would be heard in another day; the decision on costs could be based on the material already in the Snelson judgment.

Barristers for Ronnie Fraser and his original lawyers did not agree.  They argued that the pursuit of costs had already violated the requirement for promptness since this was the third hearing in over a year and since any costs hearing would have to look far beyond the Snelson judgment for evidence.  Proving that the case was “misconceived or otherwise unreasonable” would require a long and complex case.

The Snelson judgment had made findings of fact on the substantive issues: were the charges made by Fraser proven?

But now the new tribunal was being asked a set of new questions: were the charges made by Fraser “misconceived or otherwise unreasonable”?

Normally, a tribunal which had already decided upon substantive issues could apply the new, more stringent test, for costs, to the same body of evidence and argument.  But in this case there was a new tribunal.  The Snelson tribunal’s determinations as to the substantive issues would be accepted, but the Snelson tribunal’s determinations as to whether the case was “misconceived or otherwise unreasonable” could already be seen, by Snelson’s own admission, to appear prejudicial to a costs hearing.

Where the Snelson tribunal did what it was supposed to do, that is, judge the substantive case, it would be accepted.

But where the Snelson judgment over-reached itself, in a consideration of whether the case was “misconceived or otherwise unreasonable”, Fraser’s barristers argued, its findings could not be relied upon in the costs hearing.  This would mean that the costs hearing would have to make new judgments as to whether elements of the case were “misconceived or otherwise unreasonable”.  This couldn’t be done by a quick one day trial but would require a re-examination of evidence, the presentation of new evidence and perhaps new cross-examinations.

The new Judge will decide if a fair hearing on costs is possible, and whether it would be within the rules of the Employment Tribunal.

Third hearing in over a year? I think that must be counting the original hearing where Fraser's people are claiming the tribunal took a position on costs and the one where Fraser's people requested the recuse.  This means that Fraser's own interpretations and actions are now being used by Fraser to bolster his own case.  Ok I'm not a lawyer. I'm just saying how it looks to me.

By the way, here's the original judgment.


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