Held, appeal dismissed. (1) Where an employment tribunal was making a summary consideration under rule 39 of the Employment Tribunals Rules of Procedure of whether a specific allegation or argument had “little reasonable prospect of success”, it was not making a binding decision or conducting a trial, or anything like a trial. Rather, it was simply forming a view, well before the final hearing and determination, about whether it “consider[ed]” that any specific allegation or argument had “little reasonable prospect of success”, which was necessarily a matter of impression. It followed that the common law rule whereby findings of fact in proceedings were inadmissible at subsequent trials did not apply to rule 39 considerations. That conclusion was particularly apposite in the present case where the company was a party to and vigorously contested the earlier proceedings and where the period of time covered by those proceedings and the deposit order determinations was the same. In that situation there was no injustice in introducing the previous proceedings, and in fact it was just and fair that the outcome of proceedings on identical facts and law should be admitted into the rule 39 consideration, all the more so because the company was party to both (paras 60–65).

(2) There was nothing wrong in principle in deciding that the threshold test for striking out the company’s allegations and arguments was not met but the test for making deposit orders in respect of them was met, since the tests were different. The employment tribunal was not required to refrain from making deposit orders in respect of arguments with little reasonable prospect of success. The decision to leave the consequences of the tribunal assessment up to the company, while concentrating its mind on the weaknesses in its case by making the deposit orders, was fair, just, reasonable, consistent, and in accordance with the interests of justice (paras 67, 72–73).

(3) The nature of a deposit order, which was refundable if the assessment of the argument as having little prospect of success proved to be wrong, meant it could not sensibly be regarded as penal unless it was a sum the party had difficulty in paying in the first place. In any case the purpose of a deposit order was not penal but persuasive. The reason that the order in the present case was greater than had it been limited to one order per contention was that the company had decided to persist with weak points which affected 327 parties. Even if individual parties were not involved in any test or sample cases, everyone was affected by a test or sample case, including if they were not one of those selected for the purpose. The weak arguments hung over them and their cases were made more complex by their inclusion. They were as entitled to a deposit order as if the weak points were directed against them as they would have been if they had no other parties standing with them (paras 109–110).

(4) Rule 39 was not limited to beneficiaries who had paid legal representatives. The benefit of a deposit order was one to which a claimant was entitled for the trouble, anxiety and complication of weak claims being persisted with even if they were not incurring legal costs. In any case, the deposit did not have to be about a benefit to the successful claimant, but was a measure directed against the paying party. The costs arrangements entered into by the beneficiaries of the deposit orders were not relevant and did not entitle the company to conduct an enquiry into them, or to require disclosure of them, as an additional pre-condition to the award of a deposit order in favour of any particular claimant (paras 116–117).