United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 216_93_0911

Appeal No. EAT/216/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 November 1994

Before

THE HONOURABLE MR JUSTICE PILL

MRS M E SUNDERLAND

MR G H WRIGHT MBE

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MR W BATHGATE          APPELLANT

BRITISH COAL CORPORATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant

NO ATTENDANCE BY EITHER PARTY

For the Respondents


 


MR JUSTICE PILL: On 25 January 1993 an Industrial Tribunal held at Sheffield decided by a majority that the dismissal of the Applicant Mr William Hamilton Bathgate by the Respondents British Coal Corporation was fair.

Notice of Appeal against that decision was given on 16 March 1993. By letter dated 14 October 1994 Solicitors now acting for the Appellant, Brian Thompson & Partners notified this Tribunal that they were instructed to discontinue the matter and withdraw the claim from the list. They requested the Tribunal to vacate the current date and draw up the appropriate Order.

The only remaining matter is the question of costs. Upon hearing that the Appeal was to be withdrawn, and we approve that proposal, the Solicitors to the Respondents stated that they had incurred significant costs and Counsel's fees in preparing a skeleton argument, and they submitted that an Order for costs should be made in their favour, having regard to what they submit is the unreasonable conduct of the Appellant, or those who have acted for him.

In support of their submission they enclosed a detailed letter including a chronology. At paragraph 6 of the letter they stated that "the delay in communicating the decision to withdraw was unreasonable". They first submitted in some detail that the decision to appeal was unreasonable and that costs generally ought to be awarded. We reject that submission. However, we go on to consider the alternative submission which is that "the delay in communicating the decision was unreasonable" having regard to the fact, as they put it, that "the Chairman's notes of evidence were sent to the parties on or about 6 May 1993, that is about 18 months ago".

The matter came before this Tribunal upon the costs question on 28 October 1994. The present Chairman was in the chair on that occasion, but the Tribunal was otherwise differently constituted. We had before us the letter to which we had just referred and also a letter dated 27 October 1994 from Brian Thompson & Partners. That too included a chronology and also detailed argument as to why an Order for costs should not be made. We adjourned the Application. We did so because of the difference in the chronology upon an important point. Whereas the Respondents had submitted that the Chairman's notes of evidence were available in May 1993, the letter from Brian Thompson & Partners stated that it was on 8 August 1994 that the Notice of Hearing was received, plus the Chairman's notes of evidence.

The Tribunal as then constituted thought it right that Brian Thompson & Partners should have an opportunity to deal with the submission that, far from the notes only having been disclosed in August of this year, they were disclosed in May of last year.

The history of the matter can be stated briefly. We accept that advice was properly given that an Appeal could be entertained, but that it was essential, in deciding whether to proceed, to consider the notes of evidence given at the Industrial Tribunal. The grounds of appeal allege that the decision of the Industrial Tribunal was perverse, that they failed to take any proper account of the evidence of inconsistency, that inferences they made were contrary to all the evidence given and that the inference which should have been drawn on the evidence available was a different one. That is not a comprehensive statement of the grounds of appeal. It does make clear that the notes of evidence were essential if the prospects of a successful appeal were to be assessed. It is also common ground that Brian Thompson & Partners acted promptly upon discovery by them of the relevant notes of evidence. On the very next day to 8 August, they instructed Counsel to prepare a skeleton argument, disclosing to her of course the notes of evidence.

On 21 September, and we make no criticism of that delay, especially having regard to the time of year, Counsel advised that the prospects of a successful Appeal were poor. Accordingly, she did not prepare a skeleton argument. Instructions were then promptly sought from the Appellant and the Trade Union, the National Union of Mine Workers, were also involved and we have no doubt properly. A decision was taken on 14 October that the Appeal should not be pursued.

We make no criticism whatever of the original decision to put in a Notice of Appeal or of the decision that the Chairman's notes were necessary if the prospects of an appeal were to be properly assessed or of the very proper decisions taken following 8 August on consideration of the notes of evidence that the Appeal should not be pursued.

The further matter which has to be considered is whether the Appellant, or rather as is almost certainly the case, those advising him acted unreasonably within the meaning of that term in the Rules with respect to costs by failing to instruct Counsel until August of this year.

By letter of 8 November 1994, Brian Thompson & Partners first frankly note that there was correspondence dated 22 March 1993 indicating that the Chairman's notes would be supplied. They were not acting for the Appellant at that time and, indeed, it was February 1994 when they were instructed due, as they put it, to administrative changes in the organisation of the Appellant's Trade Union.

Brian Thompson & Partners go on to state that while the notes were released by the Chairman on 23 April 1993 there is "nothing to indicate to me exactly when after that date those notes were received until correspondence from the court dated 5 August 1994 concerning listing". It is at this stage, they continue, that the notes appear to have been made available. Our enquiries with the Tribunal staff indicate that Nabarro Nathanson, Solicitors to the Respondents, have stated that the notes were sent out in May of last year. It is fair to Brian Thompson & Partners to say that, of course, they were not acting at the time so the notes would not have been sent to them, but to those then representing the Appellant. In a letter also dated 8 November 1994, Nabarro state that their statement in their earlier letter that the notes of evidence were sent to the parties in early May 1993 is based upon the fact that the notes were sent under cover of a compliment slip "which we have on file and which bears a date stamp indicating receipt by us on 7 May 1993".

On the material before us, we accept that the notes of evidence were sent out at that time. Unfortunately, they were not acted upon. In our judgment, reasonable conduct of proceedings before this Tribunal requires that when an Appeal depends upon consideration of notes of evidence and when notes of evidence are sent the consequences of what is in them should be considered by the party concerned within a reasonable time. It is of course far from a reasonable time if there is delay between May 1993 and August 1994. Unfortunately, for reasons which Brian Thompson & Partners cannot explain to us, it was August 1994 before attention was given to the notes of evidence disclosed.

Nabarro Nathanson, entirely reasonably in our judgment, in August 1994 instructed Counsel. This Tribunal has repeatedly said that parties should prepare timeously for a hearing and skeleton argument should be disclosed well in advance of the hearing and it was to achieve that desirable end that Nabarro Nathanson for the Respondents did instruct Counsel on 17 August and did take the further steps to which they have referred. We have come to the conclusion that there should be an Order for costs in this case. However, we do not make an Order generally. We note what Brian Thompson & Partners say in their letter of 8 November. We quote the final paragraph:

"Factually, I do not believe I can help the Court more than this. On this basis, it would be impossible for me to put additional argument or submission, except on one point. If the Court is minded to find for the Respondents, I would submit that as costs should be awarded exceptionally, any award should be restrictive and that costs should be limited to the Instructions sent to Counsel, Counsel's reasonable fee and the administrative cost of forwarding the Skeleton Argument to the Court on 13 August 1994". In other words, should be limited to those between August and October 1994 when the Respondents' Solicitors had work to do on the case".

We consider that is a sound submission. While there would be an argument for making an Order for costs from a date in 1993, say 1 October of that year, the Respondents do not appear to have incurred costs in the meantime. They were reasonably waiting for an indication from the Appellant's Solicitors that the Appeal was to be pursued.

We note from the chronology that the notification to that effect was received from Brian Thompson & Partners on 17 August 1994. Accordingly, and following the reasoning of Brian Thompson & Partners, we consider that is an appropriate date from which costs should be awarded.

Accordingly, the Respondents will have the costs of this Appeal as from 17 August 1994. As already noted the Appeal has, subject to that Order, been withdrawn.