United Kingdom Employment Appeal Tribunal

 


BAILII case number: [1994] UKEAT 925_94_1312

Appeal No. EAT/925/94

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 December 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR L D COWAN

MR W MORRIS

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MR J PEDDUBRIWNY          APPELLANT

(1) STEVENAGE TAXIS

(2) MR K WARD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR I TYSH

(Solicitor)

Messrs Hughmans

Solicitors

59 Britton Street

London EC1M 5NA

For the Respondents NO APPEARANCE BY

FIRST OR SECOND RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from an order made by the Industrial Tribunal held at Bedford on 4 July 1994. The Tribunal heard proceedings between the Applicant, Mrs Mueller and the Respondents, Stevenage Taxis and Mr Kevin Ward.

The proceedings were initiated by an originating application presented on 18 January 1992. In the originating application, Mrs Mueller complained of sexual harassment. It is not necessary to go into the details of her claim. The relevant point for today's appeal is that she set out in box 3 of the IT1 the name and address of her representative, Mr John Peddubriwny of GMB at an address in Ilford, Essex.

At the hearing on 4 July 1994, the Tribunal unanimously decided, for reasons notified to the parties on 3 August, that the proceedings should be adjourned to a date to be fixed by agreement with the parties. That part of the order gives rise to no problems. The second part of the Tribunal's order gives rise to this appeal. The Tribunal ordered that Mr Peddubriwny, as Mrs Mueller's representative, should be ordered to pay the Respondents costs of that day thrown away by the necessity to adjourn, such costs to be taxed if not agreed.

Mr Peddubriwny is dissatisfied with the decision and appealed by a notice of appeal dated 9 September 1994. The ground of his appeal is that the Industrial Tribunal has no jurisdiction to make a costs order against a party's representative.

The Tribunal made the order for the reasons which are set out in detail. The crucial part of the reasons are contained in paragraph 6 of the decision, which states:

"In our unanimous view Mr Peddubrinwy has acted in a way which is both disruptive and wholly unreasonable and in those circumstances we feel it fair to the respondents to order Mr Peddubrinwny to pay the respondents' costs of today thrown away by his actions, such costs to be taxed if not agreed."

That order was made on the application of the Respondents.

It does not appear from the decision or the reasons for it that there was any reference to the Rules under which costs orders might be made or any discussion of their scope. The relevant rule of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 is Rule 12, contained in Schedule 1 to the Regulations. It provides:

"(1) Where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the tribunal may make -

(a) an order containing an award against that party in respect of the costs incurred by another party;

...

(3) An order containing an award against a party (`the first party') in respect of the costs incurred by another party (`the second party') shall be -

(a) where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £500;"

The short ground of the appeal, on which Mr Tysh appears for Mr Peddubriwny, is that the Industrial Tribunal is a creature of statute. It has no inherent jurisdiction. Its power to award costs under Rule 12 is limited to the awarding of costs against a party. Mr Peddubriwny was not a party. The word "party" is not defined in the Rules. According to its ordinary meaning it would not include a representative or anyone other than an applicant or a respondent to the proceedings.

We agree with that submission. It is clear from reading other Rules in Schedule 1 that a distinction is drawn by the Rules between a party and his representative. For example, in Rule 20(3), which deals with the delivery or sending of notices and documents, it is expressly stated that:

"... a notice or document sent or given to the authorised representative of a party shall be deemed to have been sent or given to that party."

The rules recognize that a representative is not, by virtue of being a representative, a party. If he is to be a party he must be made one either in the IT1 or by subsequent order of the Tribunal.

Mr Tysh has also referred to the provisions of s.51 of the Supreme Court Act 1981, which gives the courts covered by that section power to order the legal, or other representative, concerned to meet the whole of any wasted costs or such part of them as may be determined in accordance with Rules of Court. Rules of Court have been made in relation to wasted costs. Those do not apply to the Industrial Tribunal (or to the Employment Appeal Tribunal). It is expressly provided in s.51(1) that the only courts covered by those provisions are the Civil Division of the Court of Appeal, the High Court and any County Court. The Industrial Tribunal does not fall within those provisions.

We shall, therefore, allow this appeal on the short ground that the order made by the Tribunal against Mr Peddubriwny was made without jurisdiction. The order of the Industrial Tribunal is set aside.