United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1064_95_0412

Appeal No. EAT/1064/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th December 1995

Before

HIS HONOUR JUDGE P CLARK

MR J R CROSBY

MRS T A MARSLAND

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LONDON BOROUGH OF HACKNEY & OTHERS          APPELLANTS

MS J DAWNAY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR ON BEHALF OF THE           APPELLANTS

For the Respondent MR T HARRISON

(Trade Union Representative)

London (East) Regional Secretary

National Union of Teachers

267 Cranbrook Road

Ilford

IG1 4TD


 


JUDGE CLARK: This is an appeal by the Appellants against a costs order made by the Industrial Tribunal sitting at Stratford on 17th July 1995 in favour of the Respondent applicant before the Tribunal.

The background to the order being made is fully set out in the Industrial Tribunal's extended reasons. From September 1990 the applicant was employed by the 1st Appellant as acting Head of Drama at Kingsland School. By an Originating Application presented to the Industrial Tribunal on 26th August 1993 she complained of unfair dismissal and sex discrimination in connection with her non-selection for the permanent post of Head of Drama and also raised a Wages Act complaint.

On 24th March 1995 notice of a three day hearing to start on 19th July was sent out to the parties by the Tribunal. The week before the hearing the applicant's representative, Mr Harrison, sent a letter to both the Tribunal and the London Borough of Hackney Legal Department, which represented both the Appellants, enclosing an index to the Applicant's bundle. That letter referred to the hearing date on 17th July 1995. The letter, Mr Harrison believes, was faxed and also sent to the Legal Department on 13th July 1995.

On 17th 1995 the Applicant, her witnesses and her representative attended the Tribunal hearing. The Applicant and her two witnesses were each employed at the Second Appellant's school and had been given time off to attend the Tribunal. No one turned up from the Appellants at the appointed time of 10 a.m.

The Tribunal directed that a member of the Legal Department attend at 2 p.m. to show cause why the matter should not proceed. The Appellants instructed Counsel, Miss Valley, who appeared at 2 p.m.. She was attended by, in the Tribunal's words, "a young man sent to bring a file and sit with her." He apparently had no knowledge of the case, and was unable to provide any explanation for the Appellants failure to attend ready for the hearing.

In these circumstances the Tribunal reluctantly acceded to Miss Valley's application for an adjournment. The full hearing was postponed to 8th January 1996. However, the Tribunal found that the Appellants knew or ought to have known of the hearing date and ordered them to pay the Applicants wasted costs of 17th July 1995, which they assessed at £150.00. Mr Harrison, the Applicant's representative, had wasted that day as a result of the hearing going off.

Against that costs order the Appellant's now appeal. They have not attended today. Mr Harrison appears on behalf of the Respondent employee.

The Industrial Tribunal's power to order expenses incurred as a result of an adjournment requested by a party to the proceedings is contained in Rule 12(4) of the 1993 Procedure Rules. The expression `expenses' is wider than costs, and plainly covers the loss to an applicant and/or her trade union representative.

In the Notice of Appeal the Appellants first complain that the Tribunal failed to distinguish between two issues:

(i) whether to grant an adjournment; and

(ii) whether to make an order for costs.

We fail to understand this submission. Plainly both matters were considered and ruled upon.

Second, it is said that the Tribunal failed to distinguish its power under Rule 12(4) and the power to make a wasted costs order against a party's legal representative. Although the Tribunal speaks of "the Applicant's wasted costs of today" we think it clear that the Tribunal was exercising its power under Rule 12(4) because the order was made against the Appellants and not their legal representatives. At paragraph 6(2) of the Notice of Appeal the Appellants complain that no opportunity was given to the Appellant's legal representative to show cause why no order should be made. Reference is made to the Court of Appeal decision in Ridehalgh v Horsefield [1994] 3 AER 848. That was a case dealing with wasted costs orders against legal representatives. It is plain from what Mr Harrison said today that Miss Valley was given an opportunity to make submissions to the Tribunal and did so in relation to the question of costs.

The remainder of the Notice of Appeal deals with factual issues. It is suggested that the fact that the solicitor dealing with the case was on leave required the Tribunal to adjourn the question of costs thrown away. Further, that in the absence of a recorded delivery letter the Tribunal was wrong to assume that the Appellant's legal advisors had received the notice of hearing in March 1995. However, it seems to be accepted that Mr Harrison's communication dated 13th July 1995 was received, although the Tribunal was told that it had not reached the relevant file.

In dealing with interlocutory appeals of this type we remind ourselves of the three-stage process identified by Wood J in Adams & Raynor v West Sussex County Council [1990] ICR 546, 550H:

(1) Is the order made one within the powers given to the Tribunal? In our view it falls within Rule 12(4).

(2) Has the power been exercised within guiding legal principles (where appropriate)?

(3) Can the exercise of the discretion be attacked on Wednesbury grounds?

Applying that approach we are quite satisfied that no point of law arises in this appeal and it must be dismissed.