England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ PETER CLARK
Employment Appeal Tribunal (the EAT)
dated 23 January 2008

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/09/2009

Lord Justice Wall :

1. I would like to begin this judgment with my apologies to both parties for my delay in dealing with the outstanding question of costs in this case. I regret to say that it has simply been overlooked in the press of other work. I have, however, for the purposes of this short judgment re-read the judgment which I gave on 3 February 2009 ([2009] EWCA Civ 38), and have considered carefully all the submissions made to me. I have also consulted the senior costs judge and other colleagues who sit to hear EAT appeals. I have, in addition, re-read the documents to which reference is made below.
2. As I pointed out in my previous judgment, a respondent would not normally be represented on a renewed application for permission to appeal. The University was, however, represented in the instant case because, when refusing permission to appeal on paper, Sir Richard Buxton (who is, of course, a retired judge of the Court of Appeal) directed that any renewal should be on notice to the respondent. I fully understand the importance which the University attaches to a case of this nature, and in my judgment, it was entitled to attend the hearing by counsel, and to seek an order for its costs if, as proved to be the case, the application was unsuccessful.
3. Furthermore, Sir Richard gave very detailed reasons for refusing permission to appeal, and specifically warned Professor Fosh that she and those advising her "must consider carefully whether they are justified in pursuing this matter any further". Professor Fosh did not heed that warning, and in all the circumstances, it seems to me that the University was entitled to seek an order for its costs.
4. In this context I have to say that I am unimpressed with Professor Fosh's protestation that she is not a lawyer and should not thus be burdened with an order for costs relating to technical issues which she did not understand. In my judgment, and despite Sir Richard's erroneous reference to CPR PD 52.4.14A, Professor Fosh was given clear warning of the consequences of pressing ahead both by Sir Richard and by His Honour Judge Clark (see his reasons for refusing permission to appeal at tab 5 of Professor Fosh's bundle).
5. In summary, therefore, there is nothing in the material submitted by Professor Fosh which causes me to change the views which I expressed in paragraphs 53 and 54 of my previous judgment. Unfortunately, it has not proved possible to agree a figure, and I now have to determine what order for costs should be made.
6. In reaching my conclusion, I have borne in mind the fact that, despite the length and the detail of the grounds of appeal submitted by Professor Fosh, and the erudition she displays, this was, at best, an unpromising application. Furthermore, it was, as I pointed out in paragraph 55 of my previous judgment, a renewed application for permission: it was not a substantive appeal. More important for present purposes, it was a case well known to leading counsel who had conducted the University's case before the EAT, and very sensibly, in my judgment, the University chose to reinstruct Ms Simler QC for the hearing before me.
7. In these circumstances, and against this background, I have to say that I regard the bill presented on behalf of the University as very substantially excessive. Whilst I fully appreciate their duty of care to the University, the time spent by the University's solicitors on the case cannot be justified. I appreciate, of course, that counsel had to read herself back into the case, and given her general seniority, I cannot say that her fee is excessive. However, despite Denton Wilde Sapte's high professional standards, I do not think it would be appropriate for Professor Fosh to pay anything other than a token contribution to the costs which they have incurred. In my judgment, their role in the application was limited in the extreme, and - as between themselves and Professor Fosh - comes nowhere near justifying the bill they have put in.
8. All in all, therefore, and taking into account all the representations made to me, I have come to the conclusion that the total sum which Professor Fosh should contribute to the University's costs is the sum of £3,000 inclusive of VAT. In my judgment, this sum fairly reflects the proper costs of the application from the University's perspective.
9. The sum of £3,000 should be paid within 28 days or any extended period either agreed between the parties or, in default of payment or agreement, as ordered by a costs judge. Quite how the sum is allocated - if re-negotiation is to be considered - is a matter, of course, entirely between counsel and the university's solicitors.