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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Snowflake Insulations Ltd v Kennedy & Ors [1992] UKEAT 32_91_0112 (1 December 1992)
URL: http://www.bailii.org/uk/cases/UKEAT/1992/32_91_0112.html
Cite as: [1992] UKEAT 32_91_112, [1992] UKEAT 32_91_0112
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At the Tribunal
HIS HONOUR JUDGE J HICKS QC
MR D G DAVIES
MR J A SCOULLER
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE APPELLANTS
For the Respondents MR P WALLINGTON
(Of Counsel)
Messrs Prettys Solicitors
Elm House
25 Elm Street
Ipswich
Suffolk IP1 2AD
JUDGE HICKS QC: This is the hearing of an appeal by the employers Snowflake Insulations Ltd against the decisions of the Industrial Tribunal on applications by six employees for unfair dismissal. The decision of the Industrial Tribunal was given on 29 November 1990 in favour of the employee applicants and it is necessary to recite some further dates because of the issues which are before us. That decision having been given on 29 November, Notices of Appeal were lodged on 10 January 1991, which we are told was the last date on which that could have been done, and then a number of matters happened which are listed in a letter which the Appellants have sent to the Court for consideration and which we have taken into consideration, from which it appears that on 19 February 1991 the Appellants had a conference with Counsel who advised certain further enquiries.
Mr Wallington for the Respondents tells us that on 15 March 1991 the Notes of Evidence were supplied by the Tribunal at the request of this Appeal Tribunal and were presumably available to the parties from that date onwards. The enquiries advised by Counsel, according to the Appellants' letter occupied from February 1991 to March 1992, but no indication of any detail or particularity is given as to what they were, or indeed what relevance they could have had to the pursuit of the appeal.
In any event, on 13 March 1992 instructions were given to Counsel to advise and on 22 June 1992 he advised the abandonment of the appeal. It was not until 22 October 1992 that notice was given to the Respondents' Solicitors that the appeal was abandoned and since then, the Respondents having indicated their intention to apply for costs, there has apparently been some negotiation and we are told (privilege not being claimed in this regard) that an offer of £500 towards the Respondents' costs was made and rejected.
In that state of affairs the matter now comes before us and, the Appellants having given notice of their intention to abandon the Appeal, Mr Wallington for the Respondents of course asks that the Appeals be dismissed and we order accordingly. What we really have to decide is whether, as Mr Wallington asks, there should be an order for costs in favour of the Respondents and if so on what basis and whether of a fixed amount or for costs to be taxed.
The relevant rule is Rule 27 of the Employment Appeal Tribunal Rules 1980. Sub-Rule (1) reads:
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."
and by subrule (2):
"Where an order is made under paragraph (1) of this Rule, the Appeal Tribunal may assess the sum to be paid, or may direct that it be assessed by the taxing officer..."
Mr Wallington asks us to find that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings and he has referred us to the case of TVR ENGINEERING v JOHNSON [1978] IRLR 555, in which the Employment appeal tribunal that was presided over by Mr Justice Slynn so found and so ordered on facts which (Mr Wallington says and we agree) show less delay than in our view occurred in this case. It was also in circumstances where the results of delay were different, because as Mr Wallington points out since then the Industrial Tribunals (Interest) Order 1990 has come into force, the effect of which is to provide for interest on money payable by virtue of a decision of an Industrial Tribunal, but only (by reason of the definition of "sum of money") after that sum has been determined, and in the circumstances of this case that has not yet happened, because the decision of the Tribunal was a decision on what one might call liability, and what in another context one would call quantum, the amount, was to be dealt with at a later hearing, and the Industrial Tribunal in accordance with its usual practice was not prepared to give a date for that further hearing while this appeal was pending, so that the persistence of this appeal has effectively put off the determination of that sum and the running of interest from the decision of the Tribunal, and no doubt a reasonable time thereafter for a further hearing date to be given, until a date which now at the earliest will apparently be 17 December.
We have come to the conclusion that there was both unreasonable delay in reaching the decision to abandon this appeal which is what was found in TRV Engineering, but also in our judgment unreasonable conduct in launching the appeal in the first place. We reach that conclusion both by reason of the chronology which I have recited, which seems to show that effectively nothing was done for very long periods and that after a conference with Counsel in February of 1991, the result of which it seems to us by reasonable inference must have been that the appeal could not be sustained unless enquiries produced some fresh material nevertheless the matter has, continued, and that even after the decision to abandon it in June of this year the Respondents were not informed until 22 October; but secondly also because when one looks at the Notice of Appeal - and one has in mind that an appeal to this Tribunal is only on a point of law the grounds advanced are expressed in this way:-
"..on the following questions of law:
(i)whether there was an implied term in the Respondent's contract of employment entitling the Appellant to lay him off work without pay;
(ii)whether there was any or any sufficient evidence of custom and practice supporting the implication of such a term;
(iii)whether the Tribunal were entitled to find on the evidence that the implication was such a term was unnecessary and that there was "no need" for such a term ..."
So that rather than point to misdirections or other errors of law in the decision of the Tribunal and identifying them, the Notice rather bears the aspect of raising questions in somewhat hypothetical terms without any particularity of the kind required. For those reasons we find that there was unreasonable conduct on the part of the Appellants in bringing the proceedings as well as unreasonable delay in withdrawing the appeals.
In view of those findings we have come to the conclusion that the right order is that the Appellants should pay the Respondents, costs of these appeals, not just from some date at which with reasonable promptitude they ought to have come to the decision to withdraw the appeals, but from the outset.
The remaining question is whether we should order a fixed sum or leave the costs to be taxed; as I have said Rule 27(2) allows for either possibility. We are told that the Respondents' global figure for costs to date is about £5,600 - the amount has not been precisely formulated because it was not known what costs would be incurred today - and Mr Wallington invites us to conclude that, making an allowance for what in practical terms would be likely to be taxed off, it would be proper to make an order for £4,000.
We have come to the conclusion that it is preferable that the costs here should be taxed. It is possible that on taxation the Respondents will be entitled to more than £4,000 or less, and we think that when that sum of money is involved it is really more satisfactory and more just to both parties that there be the opportunity of taxation. It does not of course have to proceed fully to taxation if the parties can agree, but if they cannot agree then there are issues here both as to the detail of the work done by the Respondents' Solicitors and also as to the reasonableness of doing the work, in the light of a letter from the Appellants' Solicitors at an early stage suggesting that no unnecessary costs be incurred, and we think it right that those issues should be properly examined if the parties cannot reach agreement. Our order is that the appeals be dismissed and that the Appellants pay the Respondents' costs, to be taxed if not agreed.