England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice The Strand London Monday 19 November 2001

Monday 19 November 2001

1. LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal. The application is made by Mr Juss on behalf of Miss Kaur who was the complainant in proceedings in the Employment Tribunal. She also has an application for an extension of time.
2. The situation revealed in the papers in this case is an unusual one for a number of reasons. The dispute relates solely to the question of costs in the Employment Tribunal.
3. The background is shortly this. Miss Kaur issued an application in the Employment Tribunal complaining of unlawful deduction of wages by her employer, John L Brierley Ltd. Early on in the proceedings the Employment Tribunal made an interlocutory ruling against which Miss Kaur unsuccessfully appealed to the Employment Appeal Tribunal. Her appeal was dismissed on 26 January 2000. At that stage no order for costs had been made against her either by the Employment Tribunal or by the Appeal Tribunal. She then decided to withdraw her claim. On 11 April 2000, the Employment Tribunal made a standard form of order on withdrawal, namely that the application be dismissed. No order as to costs was made against Miss Kaur.
4. Thereafter, on 18 May 2000, a different tribunal, consisting of the chairman alone, Mr Sneath, sitting at Leeds, made an order that Miss Kaur pay the respondent's costs to be taxed in the County Court. It appears now to be common ground that there was an error in that order, at least insofar as it included the costs incurred by the respondent in the Employment Appeal Tribunal because an Employment Tribunal's jurisdiction is solely over costs incurred in that tribunal and does not extend to costs incurred on an appeal.
5. Miss Kaur appealed against the order for costs made on 18 May, but her appeal was dismissed by the Appeal Tribunal on 27 April 2001. On 21 September 2001, the single Lord Justice who considered the matter on the papers refused permission to appeal to this court. He said that he agreed with the view of the Appeal Tribunal and that an appeal to this court had no prospect of success.
6. In my judgment, the appropriate way to proceed with this matter is for me neither to refuse nor to grant permission to appeal. I certainly will not refuse permission today for at least three reasons. First, it is very unusual in an Employment Tribunal for costs to be ordered to be paid by an unsuccessful applicant. Secondly, it is even more unusual for such an order to be made by a different tribunal than that which decided to dismiss the complaint. There may, however, be justification for the procedure that was followed in this case, since the dismissal of Miss Kaur's complaint did not follow a contested hearing. It was made following the withdrawal of her case. It is common in other forms of legal proceedings for people who bring cases and then decide to discontinue them to have to pay the costs.
7. The third point, as already indicated, is that there was admittedly an error in the decision of the Employment Tribunal on 18 May 2000 in making an order for costs which covered the costs in the Appeal Tribunal.
8. All of these factors persuade me that the best and the most convenient way of proceeding with this matter is to adjourn the hearing of the application for permission to appeal, and the application for an extension of time, to be dealt with at a hearing at which the respondent is represented. I couple with that a direction that if, on that contested application for permission, permission is granted, the substantive appeal is to be heard immediately afterwards.
9. I have also mentioned to Mr Juss that insofar as the applicant may cause the respondent to incur costs in this court and she is unsuccessful in her application or in her appeal, the normal order which follows in this court is that the losing party is ordered to pay the costs of the successful party. Mr Juss informs me that the applicant is well aware of the risk of being ordered to pay costs in relation to a dispute which is itself solely concerned with costs.
10. For those reasons I make the directions therefore that this application be adjourned and that there be an inter partes hearing of the applications, with the appeal to be listed at the same time. I make the further direction that the hearing of these applications, and any appeal which is to follow, is to be by three Lords Justices, at least one of whom has sat in the Employment Appeal Tribunal before being appointed to this court. I think that is an important point because someone who has sat in the Employment Appeal Tribunal is aware of how rare orders for costs are. The case should be given a time estimate of three hours. The costs will be costs in the application.
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