England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
The Honourable Mr Justice Underhill (the President)
Appeal No: UKEAT/0340/12/SM

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2014

Lord Justice Rimer :

1. This is the judgment of the court.
2. On 14 May 2014, we handed down our reserved judgments giving our reasons for dismissing Mr Crossland's appeal. We have received written submissions from Mr Nawbatt, for the respondents, and Mr Crossland, the appellant, as to the form of the order and costs. We considered it appropriate to explain in a written judgment our reasons for making the order we propose to make. We shall take our main judgment as read. It explains the relevant background to this appeal and says all that needs to be known for this judgment to be intelligible.
3. Mr Nawbatt has asked for orders providing for the dismissal of the appeal, the payment by Mr Crossland of the costs of OCS Group UK Limited ('OCS') and British Airways Interior Engineering Limited ('BAIE'), such costs to be the subject of a detailed assessment if not agreed, and for Mr Crossland to make a payment on account of costs of £3,000. That is an entirely conventional form of order for the successful respondents to ask for, and we comment that the £3,000 figure is apparently a modest one.
4. Mr Crossland asserts that the hearing was part of what he called a 'more expansive hearing', involving, he says, four separate claims, of which three are against OCS and one against BAIE. He asks that the question of costs be deferred for determination by the employment judge at the final hearing of those claims. He says also that such a course would be appropriate because he currently has no money with which to pay any costs.
5. There is, we consider, no justification for referring the question of costs to any other tribunal. Mr Crossland's appeal raised a discrete issue as to the correctness or otherwise of the making by Employment Judge Cadney in the Employment Tribunal ('ET') of an order that Mr Crossland pay a deposit of £250 as a condition of being allowed to continue his disability discrimination claim against OCS and BAIE. The Employment Appeal Tribunal ('EAT') dismissed Mr Crossland's first appeal against that order and we have dismissed his second appeal against it. The starting point in the exercise of our discretion as to what costs order to make is that the loser should pay; and although we recognise that that is not necessarily also the finishing point, we can see no reason why Mr Crossland, as the losing appellant, should not pay the successful respondents' costs. We shall order that he does. We shall also order him to make a payment of £3,000 on account of those costs. The making of such an order is usual and there is no good reason not to make one in this case. Such payments are ordinarily required to be made within 14 days of the order for payment. We shall direct that the payment be made by 4 pm on 4 June 2014.
6. Another matter that Mr Crossland raises is this. As Rimer LJ explained in [3] of our main judgment, Mr Crossland refused to pay the £250 deposit ordered by Judge Cadney. He first sought a review of that order, which Judge Cadney refused. Judge Cadney treated the review application as one for an extension of time for paying the deposit and he extended the time for doing so until 3 April 2012. Mr Crossland still refused to pay it, with the consequence that on 5 April 2012 the ET made an order striking out Mr Crossland's claims against OCS and BAIE under rule 18(7)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. That order brought Mr Crossland's discrimination claim to an end.
7. On the footing that Mr Crossland had, as we presume he did, real faith in the quality of his discrimination claim, his decision to refuse to pay the £250 and allow it to be struck out defies easy comprehension. His decision not to pay the deposit was, however, deliberate. He explained to us that he was concerned that, if he paid it and then lost his case at the full hearing, he might be at risk of being made to pay the costs of the proceedings on the basis that he had unsuccessfully pursued a claim that had little reasonable prospect of success: and the deposit order was of course made because Judge Cadney assessed the claim to be of that quality (see [6] of our main judgment for the applicable rule).
8. Having formed that concern, Mr Crossland chose to follow what might be regarded as the high risk strategy of allowing the strike out to take place and to embark instead on an appellate challenge to the making of the deposit order. He appealed first to the EAT, which dismissed his appeal; and then to the Court of Appeal, which has now done likewise. Had either appeal succeeded, it is clear that the consequence would have been a setting aside both of Judge Cadney's deposit order and of the strike out order made (on this hypothesis) in consequence of the non-compliance with a deposit order that had been wrongly made. The discrimination claim would then have been back on track and could have been pursued to a full hearing. As, however, Mr Crossland's appeals both to the EAT and this court have failed, he is left in a position in which his claim remains struck out.
9. Mr Crossland submits that we ought, however, to save him from such a disastrous outcome by setting aside the strike out order and extending yet further his time for paying the deposit. The respondents' stance is, predictably, that we have no jurisdiction to set aside the strike out order: Mr Crossland has not appealed against it and now that it has been vindicated both by the EAT and this court, the order has been shown to have been made entirely properly. We agree that we have no jurisdiction to set that order aside. In the circumstances, the discrimination claim cannot now be revived.
10. Mr Crossland complains that it was unreasonable for the respondents not to argue either before the EAT or before us that 'once the strike out took effect in the ET, … the courts had no jurisdiction to alter that …'. That is a surprising point for Mr Crossland to make. He brought his two appeals in, we presume, the expectation, or at least the hope, that he had a real prospect of success in them. If he had succeeded, we have explained how consequential orders would then have been made that would have revived his discrimination claim. We do not, however, understand why Mr Crossland considers that the respondents should have argued at the hearing of either of his appeals that if he were to lose them, he would be faced with the consequence that his claims would remain struck out. The reason the respondents did not, and did not need to, advance any such argument is that it was irrelevant to the only substantive question raised by Mr Crossland's appeals; and it was only to the answering of that question that the respondents needed to, and did, devote their arguments at the hearings. What Mr Crossland appears really to be complaining about is that the respondents did not advise him of the folly of his own decision to refuse to pay the deposit and instead to put all his eggs in a risky appellate basket. That, however, was not their job; they owed no duty to advise Mr Crossland of the apparent imprudence of his chosen course. Mr Crossland had to calculate that risk for himself. It now appears that it may not have occurred to him that, were his appeals both to fail, his claim had been irretrievably struck out. If so, we regard that as surprising.
11. Mr Crossland says, in his submissions of 13 May 2014, that:

"If, that is their argument then why was that not put at the EAT, or for that matter at the Court of Appeal hearing. Rimer LJ certainly believed that it was possible at the hearing to both amend my claim and open to me to pay the deposit; and that contention was not challenged by the defendants. Furthermore, there [sic] contention has not appeared in any of their skeleton arguments.'

12. The first and last sentences go to the points referred to in [10] above. As for the rest, Rimer LJ has listened to a recording of the hearing in the Court of Appeal. The only thing he said in the course of argument that came even close to what Mr Crossland has attributed to him was at a point (at about 3.15 pm) when Mr Crossland submitted that the reason the appeal hearing was taking place was because the respondents had made no reasonable adjustments for him. Rimer LJ responded by saying:

'Well, I think that is not exactly a question for today. It is more like a question which is appropriate for the trial, if we ever get that far. Well, we presumably will get that far but it is not a question for today.'

13. Rimer LJ at no point said that it was now open to Mr Crossland to amend, nor did he say that it was open to him to pay the deposit. Kitchin LJ, in an exchange with Mr Nawbatt, did suggest that it would or might be open to Mr Crossland to apply in the employment tribunal to amend his claim. Towards the end of the hearing, when Mr Crossland was explaining why he had chosen not to pay the £250, Rimer LJ said that it would have been open to Mr Crossland to have applied at the hearing of the PHR to amend his claim, or else to have so applied once he had received Judge Cadney's judgment. That, however, was a reference to the making of such an application before the claim had been struck out.
14. Neither Rimer LJ's comment referred to in [12] nor Kitchin LJ's comment referred to in [13] was made in the context of a consideration of the consequences for Mr Crossland's claim if his appeal failed. The argument in the case occupied approximately 3.25 hours, which were all devoted to the merits of the fairly narrow ground of appeal advanced by Mr Crossland. The argument at no time either addressed or considered the consequences for Mr Crossland if the appeal failed: that was irrelevant to the substantive question raised by the appeal. Questions as to that were destined to arise only when and if the appeal failed. Neither of the comments referred to operated to confer a jurisdiction on the court that it does not have.
15. The result is that, although the order that we will make need say nothing about it, its consequence will be that Mr Crossland's discrimination claim against the respondents will remain struck out. The court of course has sympathy for Mr Crossland that such a consequence has arisen, but it is one that has resulted from his own response to the making of the deposit order.
16. The court will make an order: (i) dismissing Mr Crossland's appeal; (ii) that he must pay the respondents' costs of the appeal, such costs to be the subject of a detailed assessment on the standard basis if not agreed; and (iii) that he must pay £3,000 on account of such costs by 4 pm on 4 June 2014.