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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gardiner v Birmingham Stoppers & Cycle Components Co Ltd [1995] UKEAT 158_91_1201 (12 January 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/158_91_1201.html
Cite as: [1995] UKEAT 158_91_1201
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR T S BATHO
MR P DAWSON OBE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF THE
APPELLANT
For the Respondents NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF THE
RESPONDENTS
MR JUSTICE MUMMERY (PRESIDENT): In this matter the parties have agreed that the Tribunal will deal with an application for the costs of an abandoned appeal on the basis of written representations.
The application by the Respondent, Birmingham Stoppers & Cycle Components Co Ltd, is that the Appellant, Mr W Gardiner, should pay the costs of an appeal to this Tribunal which was withdrawn the day before it was due to be heard. The background to the matter is that a claim by Mr Gardiner for unfair dismissal was heard by the Industrial Tribunal sitting at Birmingham on 12 December 1990 and 25 January 1991. For full reasons notified to the parties on 5 March 1991 the Tribunal unanimously dismissed Mr Gardiner's claim. He appealed by Notice of Appeal dated 26 March 1991. A preliminary hearing of the appeal was first before this Tribunal on 16 March 1992. It was adjourned. The adjourned hearing did not take place until 17 December 1993. At that preliminary hearing a direction was given that the appeal should proceed to a full hearing. An Order was made for the production of the Chairman's Notes of Evidence. An undertaking was given on behalf of Mr Gardiner, that within 28 days of the receipt of the Notes of Evidence, his advisers would inform the Appeal Tribunal whether he was continuing with the appeal. In March 1994 the Chairman's Notes were produced. A letter was written on 26 April 1994 confirming that the Appeal would proceed.
The appeal date was notified to the parties on 2 August 1994 as fixed for 11 October. It appears from the written representations that on 7 October a conference was held with Counsel for the Appellant. A decision was made to withdraw the appeal. The Employment Appeal Tribunal was not notified of the withdrawal of the appeal until 10 October when a fax was received here saying that the appeal was withdrawn. It is in those circumstances that the Respondents argue that the Appellant should be ordered to pay the costs of the appeal. They say they have incurred costs. Counsel was instructed following the receipt of the letter from the Appellant's solicitors dated 26 April 1994. Counsel's fee, exclusive of VAT, amounted to £445. There are also items of travelling expenses - £79 for the cost of travelling to a conference with Counsel on 28 June and another £79 paid for rail tickets purchased for travelling to the Appeal Tribunal on 11 October. Because of the late withdrawal it was not possible to claim a refund of the cost of those tickets.
The claim for those costs and expenses is made under the Employment Appeal Tribunal Rules 1993, Rule 34. That provides:
"(1) 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.
(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, from whose decision an appeal shall lie to a judge."
The Respondents' main point in the written representations is that this was a case of unreasonable delay or other unreasonable conduct of the appeal proceedings. It is unreasonable because no good reason has been shown for delaying the decision to withdraw the appeal until the late stage when that decision was made. It is submitted that it was possible to make the decision at the earlier stage when the Notes of Evidence of the Chairman had been produced. But a decision was taken at that time to continue. No explanation has been given as to why there was a change of view about the pursuit of the appeal.
We agree with the Respondents that in this case there has been unreasonable delay in the conduct of the proceedings. The unreasonable delay is in making a final decision as to whether or not to proceed with the appeal. If parties are hesitant or doubtful about whether they should go on with an appeal, they should make a decision as early as possible in order to be fair to the Respondent who might otherwise incur costs in relation to resisting the appeal and in order to be considerate to this Tribunal in the arrangement of the hearing of cases.
The case in our view does fall within Rule 34, but whether we order costs or not is a matter of discretion. There are two factors in this case which lead us to decline our discretion to order costs.
First, the position of the Appellant. It appears from the written representations that he has at all relevant times been legally aided, that he is unemployed and has no money. If we were to make an Order it would be in the form that it could not be enforced without the leave of the Tribunal. In our view, the fact that he is legally aided is a factor to take into account in deciding how to exercise our discretion.
The second factor which leads us not to order costs is a matter affecting the Respondents. The Respondents' representation was through the Engineering Employers Federation to whom they pay an annual subscription in return for various services, including representation in Tribunals. It appears that the fee for Counsel, which is the major item of expense claimed, was incurred by the Federation, not by the Respondents to the Appeal. As appears from Rule 34 we only have power to order costs to be paid to a party. We do not have power to order costs to be paid to someone who is not a party. The Engineering Employers Federation who instructed Counsel and who it appears will bear the fee, are not a party to the case. They are merely acting as a representative of the party.
For those two reasons we decide not to exercise the discretion to order costs, even though we conclude that there was unreasonable delay and conduct in this appeal. The application for costs is refused.