United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R GREENING (Of Counsel) Messrs R Gwynne & Sons Solicitors Edgbaston House Walker Street Wellington Telford Shropshire
For the Respondent	ISS C HYDE (Of Counsel) Messrs Maurice Andrews Solicitors 203 Corporation Street Birmingham B4 6RP


 


MR JUSTICE WOOD (PRESIDENT): This is an application for costs made on behalf of Mr Miller, who was an applicant before an Industrial Tribunal, and it is the cost of a hearing before us on the 29th and 30th June of this year on an application by the original Respondents, Blockleys plc, for a review of a decision of ours given on the 7th June 1990.

The time-table is of some importance in an understanding of the issues involved. The Originating Application is dated as long ago as October 1987. There was a hearing before an Industrial Tribunal in October 1988. Mr Miller succeeded. The respondent employers, the Company, appealed to this Appeal Tribunal. The matter was heard in March 1990, we gave a decision dismissing the appeal on the 7th June 1990. We refused leave sought by the employer, the Company, to appeal to the Court of Appeal.

The Company then applied for a review on the 19th June 1990, and that of course under our rules, Rule 26 had to be brought within 14 days. Thereafter the Company sought leave to appeal on the 3rd July 1990. That was granted on the 12th September 1990, a Notice of Appeal was dated the 21st September and there was also an indication on the 10th or 16th October of additional grounds.

The Court of Appeal gave a date for the hearing of the appeal of the 19th June 1991. The Company were content with this but those advising Mr Miller wanted the review application to this Court heard first and with the consent of the employers that date was vacated.

The hearing before us, as we have indicated, was on the 29th and 30th June. We reserved our judgment and gave it on the 30th July and we decided the matter, after considering a number of authorities, on the basis that we had no power to review our decision in the particular circumstances and, secondly, that because leave to appeal to the Court of Appeal had already been given it would be, to use an American expression, "abuse of process" to have reviewed our decision, which was about to be criticised in the Court of Appeal.

There was no opportunity to apply for costs at the time we gave our judgment on the 30th July and as a result this application is made today. Miss Hyde makes the application for the cost of the review hearing of 29th and 30th June and Mr Greening opposes that and asks for his costs of today. We can deal with that last matter quite quickly saying we reject that, there is no unreasonable conduct here by Miss Hyde in the way that this matter has been conducted on behalf of Mr Miller for the application of costs.

The basis upon which the application is made by Miss Hyde is first, that the bringing of the application for review was unnecessary and constituted unreasonable conduct and then she contends that the continuation of that application, after the leave to appeal had been granted by the Court of Appeal, was likewise unnecessary and unreasonable conduct.

The answer to the first point from Mr Greening is that because Rule 26(2) of the Employment Appeal Tribunal's Rules requires an application for review to be made within 14 days, it had to be made. We agree with that view, there was nothing unreasonable in the application itself.

The criticism, which is of greater moment, is in the continuation of the application for review. Mr Greening makes a number of points, first of all there was an answer put in to the application for review, that was dated 14th February 1991, and the two points upon which Mr Miller ultimately succeeded, namely that there was no power to review and, secondly, that it would have been an abuse of process so to do were not taken. He, secondly, relies upon the fact of the vacation of the earlier date given by the Court of Appeal. Thirdly, some ten days before the hearing before us in June 1992 there was communication indicating possible corrections of a textural nature on the facts of the judgment of this Appeal Tribunal and no mention of their two relevant points. Fourthly and fifthly he points out that due to the courtesy usually found, and found in this case between Members of the Bar on the day of the hearing, at the last minute, there was an indication between leading Counsel that the two points were going to be taken here, namely, that EAT had no power to review and secondly, the abuse of process. It is right and it is within the recollection of the Members sitting here today, that Mr Weitzman, for Mr Miller, was taken somewhat by surprise at the two points properly taken and that we rose early and gave him some time over the evening adjournment to look into the matter because it was in the end a difficult matter and we reserved our judgment, we examined a number of authorities and we gave leave to appeal on those points also because we would gladly accept guidance from the Court of Appeal in that connection.

It seems to us therefore, that there was no unreasonable conduct or unnecessary behaviour on the part of the Company in the way that they approached the hearing of the application for review. Of course it is in our discretion whether or not we award costs, but it is not quite the wide discretion one has in the High Court and we are bound by the words of Rule 27 of our Rules. The words, as I have said, relied upon by Miss Hyde are, "unnecessary and unreasonable conduct".

Having looked at the whole matter and the history, as indicated to us, and indeed, not challenged, we are unable to accept that there is behaviour here which merits an award of costs against the Company. They lost, as Mr Greening put it, "they lost comprehensively", but they lost on two very difficult points and they were points that were raised very much at the last minute, although successfully, on behalf of Mr Miller.

It follows therefore, that both the application and the cross-application for costs in front of us this morning are dismissed.