LORD JUSTICE MUMMERY: For the reasons given in the draft judgments made available to counsel, this appeal is dismissed. The parties have been able to agree most of the provisions that will go into an order consequent on the dismissal of the appeal. The following parts of the order have been agreed. (1) That the appeal be dismissed on the terms set out in the court’s judgment. (2) The case is remitted to the Employment Tribunal. (3) The trial of the action shall be before an Employment Tribunal chaired by a circuit judge.

Unfortunately the parties were unable to agree on what should be the appropriate order for costs, save that everybody agreed that the Intervener in the proceedings, the Secretary of State for the Home Department, should neither have costs against any other person, nor be liable to pay the costs of any other person. As far as the appellant and the respondent are concerned, written submissions have been received from both sides and they have been considered by the court. The position is that, having had the benefit of written submissions, I am in a position to state, with the concurrence of other members of the court, what should be the appropriate order.

It was argued by counsel for the appellant that, although her appeal was dismissed, the successful respondents should pay the unsuccessful appellant’s costs. Alternatively, it was submitted that, if that failed, then the appropriate order should be no order as to costs. The appellant’s written submissions reminded the court of the broad discretion that it has in relation to costs, and pointed out that, although the appeal was dismissed, it was relevant for the court to look at the course of the proceedings and the reasoning of our judgments on the various issues that have arisen in the case. The court had decided not to uphold the “unless orders” made in the Employment Tribunal, but it recognised that the circumstances in which they were made were extraordinary, baffling and Kafkaesque. It was pointed out that, having obtained that order in her favour, the appellant was entitled to resist the appeal to the Employment Appeal Tribunal, and had appeared in the Employment Appeal Tribunal deploying arguments on European Community law and Convention Rights law.

It was said that in the light of the decision of the Employment Appeal Tribunal the appellant had little choice but to appeal to this court, and in doing so was entitled to rely on her rights under European Community and Convention Rights law. It was pointed out that the respondents had unsuccessfully attempted not only to resist the appeal, but to maintain the rulings that had been made in the Employment Appeal Tribunal on the issues that had been argued. This court had decided that those matters should not be resolved at this stage, but should await determination until there had been a hearing of all the evidence in the Employment Tribunal. So it was pointed out by the appellant that the respondents had failed in their attempts to uphold the reasoning of the Employment Appeal Tribunal, and therefore had a degree of success. In those circumstances the appellant sees the dismissal of her appeal as a victory for her, so she should have the costs, which should be summarily assessed. Alternatively, no order as to costs, because the Court of Appeal had found that neither party had adopted the correct position in this extraordinary litigation.

I should refer briefly to the respondents’ written submissions on costs. They say that as the appeal was dismissed the costs should follow the event, and the case which they had presented in this court had been largely successful. They pointed out that the appellant had failed on her appeal in relation to the “unless order” and in relation to those other points that were taken on the European Community and Convention Rights law. It was pointed out that there were no good reasons for departing from the general rule that costs should follow the event.

The decision of the court is that the appropriate order in this case is there should be no order as to costs. The reason for that is that, although the appeal was dismissed, the court is of the view that some of the problems which have arisen in this case from the very beginning have been the result of the respondent, Metropolitan Police, taking a point, which the court considers to be quite hopeless, that all the proceedings were an abuse of process. That is not the case, as the court explains in its judgments. It is perfectly possible, despite the complications of security and intelligence considerations which arise in this case, for the matter to proceed to a hearing before the Employment Tribunal at which there is evidence which can be heard on both sides relevant to the claim of race discrimination and which will not give rise to any problems in relation to matters of security or intelligence. If the tribunal comes to a point where it feels that it is not able to decide the case on all the material which it does have, and that it is necessary to probe further into the questions of security vetting, then the issues which have been canvassed in the Employment Appeal Tribunal and on the hearing before us may have to be confronted by the Employment Tribunal. It is at that stage, not at this stage, that the rulings should be made on the legal questions that arise in relation to race discrimination and the right to a full and fair trial.

For those reasons, we make the order which has been agreed, and on the matter that is not agreed we direct that there be no order as to costs. In those circumstances it is not necessary to deal with the application for summary assessment.