England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Bean, Mr A. Harris and Mrs R. Chapman
Appeal No: UKEAT/0275/12/RN, BAILII: [2012] UKEAT 0275_12_2410

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st October 2013

Lord Justice Rimer :

1. This is the judgment of the court.
2. The court handed down its judgment on this appeal on 16 October 2013: [2013] EWCA Civ 1226. The court thereby allowed the appeal of JJ Food Service Limited ('JJF') against the order of the Employment Appeal Tribunal ('EAT') dated 24 October 2013, set aside paragraphs 1 and 2 of that order and restored paragraph 3 of the judgment of the Employment Tribunal ('ET'). The respondent is Zeki Zulhayir, who had failed in the ET but succeeded in the EAT. The court has received submissions from the parties as to costs, and this is the court's judgment as to costs. We shall take our prior judgment as read.
3. JJF, having succeeded on the appeal, asks for an order for costs against Mr Zulhayir. Mr Zulhayir has, since 22 May 2013, had a legal aid certificate for the purposes of the appeal, of which he belatedly notified JJF on 16 October 2013. He resists any order for costs. In addition, he has applied for a 'costs-capping' order under CPR Part 52.9A, which reads:

'Orders to limit the recoverable costs of an appeal

52.9A-(1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.

(2) In making such an order the court will have regard to-

(a) the means of both parties;

(b) all the circumstances of the case;

(c) The need to facilitate access to justice;

(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).

(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.'

4. The chronology is as follows. Rimer LJ gave JJF permission to appeal on 22 February 2013. Part 52.9A came into force on 1 April. Mr Zulhayir was acting in person in relation to the appeal until 7 May. Down to then, he had made no application under Part 52.9A. As from then, Stephensons Solicitors came on the record as acting for him. The associate solicitor who says he had conduct of Mr Zulhayir's case was on leave from 16 May to 29 May, but following his return a Part 52.9A application was made on 18 June, it was sent to JJF's solicitors on the same day, acknowledged by them on 20 June and issued on 26 June. The application came before Rimer LJ on the papers on 27 June, with the substantive appeal due to be heard on 1 July. He directed that it would be unfair to rule on the application without JJF having had the opportunity to make representations upon it (he was unaware that it had been sent to JJF's solicitors), and adjourned the application to the appeal. At the hearing of the appeal, counsel agreed at the outset that the application should be considered after the giving of judgment.
5. In our view, as submitted by Mr Milsom for JJF, the short answer as to why it is not appropriate for the court to consider Mr Zulhayir's application is that it was not made 'as soon as practicable', whereas sub-rule (4) shows that to be a mandatory condition of such an application. We understand the reason why Mr Zuhayir did not himself apply for such an order to be that he was unaware of the right to do so. It cannot, however, be that a litigant's ignorance of such right means that it was not 'practicable' for him so to apply and we do not subscribe to the view that there either are, or ought to be, special rules for litigants in person. But even if we are wrong as to that, there is no sufficient explanation as to why his solicitors waited from 7 May to 18 June before making the application a mere fortnight before the hearing of the appeal. Even if, which would be an inadequate reason, they were awaiting the provision of legal aid, they still did not make the application for nearly a month. There is therefore no question of the application having been made 'as soon as practicable' and we do not follow why, as Ms Mallick submits, the court either can or should ignore the sub-rule (4) requirement. It may be an old-fashioned approach, but we prefer the view that rules should be interpreted as meaning what they unambiguously say; and if sub-rule (4) was not regarded by the rule makers as important, they would not have included it.
6. We do not therefore entertain the Part 52.9A application. To do so would be to reduce the mandatory requirement of Part 52.9A(4) to a dead letter. We add though, that even if we had been satisfied that Part 52.9A could and should be regarded as in play, we would, in light of the 'circumstances of the case' (see Part 52.9A(2)(b)) which we explain further below, anyway have regarded this as an inappropriate case in which to exercise a discretion limiting Mr Zulhayir's liability for JJF's costs of the appeal.
7. Approaching JJF's costs application according to general principles, we have no doubt that it is in principle appropriate to make an order for costs against Mr Zulhayir. His application to the ET was, in our view, a manifestly opportunistic one, at least as regards his unfair dismissal claim. If he had held any real concern at the realisation in June 2009 that JJF no longer regarded him as an employee, he would not simply have responded to Kennedys' letter by bringing unfair dismissal proceedings; he would have explained that JJF had made a mistake as to the true position, and that, even though he had not done any work for JJF for over four and a half years, he remained a willing employee who was anxious to retain his employment and resume work as soon as possible. He did, however, nothing of the sort. That is because it is plain he had no wish to remain an employee of JJF. The inference is that he simply regarded Kennedys' letter as opening another opportunity to claim money from JJF in addition to the compensation he was seeking by his damages claim.
8. In the event, his claim was rejected by the ET. He chose to appeal against that rejection, an appeal which in part involved a departure from the boundaries of his disability discrimination claim that had sensibly been agreed by his previous counsel at the ET hearing and which, as regards the unfair dismissal claim, involved what in this court's view was a misguided focus on the irrelevant events of June 2006. True it is his appeal succeeded on both grounds, although this court found it difficult to understand how that came about. It was, however, no surprise to it that JJF should have wished to challenge the EAT's conclusions, and its challenge was successful.
9. If no order for costs is made by us, JJF will be left bearing its costs incurred in this court and in both tribunals below. In the circumstances outlined, that would be unfair. Our assessment is that Mr Zulhayir's claim should never have been brought and that he should not have appealed the ET's correct rejection of it. It would be unjust not to make an appropriate order for the costs of the appeal to this court against him.
10. We shall order Mr Zulhayir to pay JJF's costs of the appeal down to and including 21 May 2013 (after which he was legally aided), such costs to be the subject of a detailed assessment on the standard basis. As for the subsequent period during which he was legally aided, we shall also make an order against him to pay JJF's costs in respect of that period, but do not attempt to specify what amount, if any, of JJF's costs he should pay. That is a matter for determination by the costs judge. The costs of the appeal claimed by JJF are £9,840.60 (£8,200.50 plus VAT). That is criticised by Ms Mallick as disproportionate, but we disagree. We add also that, to the extent that JJF has incurred costs in responding to the Part 52.9A application, we consider that it incurred costs that it ought not to have been required to incur at all.
11. We would ask counsel to submit for the court's consideration an agreed form of order that covers both the substantive decision of the court in relation to the appeal and also reflects the orders as to costs that we make.