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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Parchment v IBC Vehicles Ltd [1995] UKEAT 239_95_0310 (3 October 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/239_95_0310.html
Cite as: [1995] UKEAT 239_95_310, [1995] UKEAT 239_95_0310
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At the Tribunal
HIS HONOUR JUDGE J HULL QC
MR L D COWAN BA
MR R SANDERSON OBE
JUDGMENT
Revised
APPEARANCES
For the Appellant MR LEE
Law Consultant
Supreme Public Law
PO Box 211
Luton
Bedfordshire
LU4 8PN
For the Respondents MR J LEWIS
(Of Counsel)
Messrs Rakinson
Solicitors
27 Chancery Lane
London
WC2A 1NF
JUDGE HULL Q.C.: This is an appeal by Mr Devon Parchment who worked until 16 July 1993 for a firm called IBC Vehicles Ltd in Luton. He was first employed either in December 1988 or December 1989 (different dates are given) and he suffered a large number of injuries whilst he was at work. The work consists of work in connection with vehicle manufacture and he was a production welder/assembler. On 6 April 1993 there was a memorandum written by the employers concerning his health, which of course had been affected by a number of these accidents. What was written was:
"This is to confirm (said the employers) the content of my discussion with you on nightshift 5th April 1993 (in the presence of two representatives - a supervisor and a union representative)"
"Following a discussion you were advised that in the circumstances of your continuing inability, due to medical ailments, to perform normal production operations, it was necessary to place you on a 3 month review period until the end of June 1993."
"During the 3 month period it will be necessary for you to demonstrate your ability to satisfactorily perform full and normal work, also to attend work on a regular basis."
"Regrettably, if you are unable to do so, it will necessitate your dismissal for incapability of fulfilling your contractual obligations for medical reasons."
That was the letter that was written. In parenthesis, it appears from what we have been told, and read, that some of these injuries have led to litigation in which Mr Parchment has made claims (about which of course we know nothing, but which he is no doubt entitled to maintain or at any rate to bring) against the employers. Those are nothing to do with us and of course he had no right to bring them in the Industrial Tribunal, he had to go to the Courts, either the County Court or High Court, to bring those claims.
On 16 July, the three-month trial period having elapsed, he was dismissed. A letter dated 22 July 1993 from his employers states:
"Dear Mr Parchment, This is to confirm that at a meeting held by M.Shea Shift Manager on 16th July 1993, in the presence of D.Budge Assistant Manager, C.Donoghue Supervisor, J.Hooper AEEU Representative and yourself, you were advised following a full discussion that you were discharged for incapability of fulfilling your contractual obligations effective immediately with 34 weeks money in lieu of notice."
It was on the face of it a dismissal for incapability, being one of the grounds upon which an employer is entitled, if he acts fairly and reasonably, to dismiss an employee. Mr Parchment issued his IT1 on 18 August 1993 complaining of unfair dismissal and discrimination, and claiming compensation. He set out various matters and he complained of improper procedures. The employers put in their IT3 on 24 September 1993 and said the reason for Mr Parchment's dismissal was incapability of fulfilling his contractual obligations. The complaint and the response to the complaint have not, so far as we know, been dealt with yet and they await trial. However, what we are concerned with are certain events which took place before any matters had been tried. On 16 August 1994 there was an application to transfer the application from the Bedford Tribunal to Croydon. Mr Lee was apparently the person responsible for the letter, although it is signed under the somewhat grandiloquent title of Supreme Public Law (International). What was written to the Regional Office was this:
"The above matter is listed for a hearing in the Bedford Tribunal on 15th and 16th September 1994, however in view of the manner an earlier hearing was conducted and ordered we are certainly not happy for this matter to be heard in the said Tribunal and hereby request that the matter be removed and transferred to the Croydon Industrial Tribunal South London at an early date."...
The next letter came from the Bedford office of Industrial Tribunals on 24 August 1994 addressed to Supreme Public Law:
"I refer you to the above case and to your letter of 16 August 1994... I have referred the case file to the chairman (Mr J G Drysdale) who directed I write to you in the following terms:
`Please ask the applicants representative to be more specific in his objection to the pending hearing in Bedford'
I would appreciate your reply within 10 days."...
The next letter dated 30 August 1994 from Supreme Public Law (International) said:
"We were not at all happy in regards the conduct and adjudication of the last hearing in that Tribunal by the Chairman, in the case of Mrs S.Clarke v Luton and Dunstable Hospital (NHS Trust) where it was noted that the Chairman did not conduct the proceedings fairly and did not adhere to our request on behalf of the applicant that an ACAS officer being called in the proceedings to give evidence was objected to and force the applicant representative to agree against his wishes under protest to hear the said ACAS representative by over-ruling the objection." (Contrary to certain statutory provisions which are then set out.)
The writer makes various complaints about the Chairman who had sat in that case and goes on:
"There-fore from the conduct of the proceedings and the manner it was hastily adjudicated upon and failure to review where the chairman had erred in failing to so consider the originating application and heard the proceedings twice as a perliminary hearing contrary to the rules of procedure, there is no doubt that the present applicant in these proceedings will not obtain justice and fairness in the Bedford Tribunal, where big corporation is concerned and it is for the reasons and the case of Mrs Clarke including previous experience in other proceedings in that Tribunal that it is requested the said case be transferred to the Croydon Industrial Tribunal for a determination."
That was saying in terms that at any rate one Chairman of the Industrial Tribunals sitting at Bedford in one previous case - and also in others it is suggested - had shown such an unfairness that it could be said, on behalf of this Applicant in the present case, that he would not get a fair trial. That was the way in which it was put. There was a letter written on 1 September 1994 by the Office of Industrial Tribunals:
"... I have referred the case file to the chairman (Mr J G Drysdale) who directed I write to you in the following terms:
`Please ask the applicants representative to identify the chairman concerned so that consideration can be given to having the case heard by a different chairman.'
I would appreciate your reply within 7 days. This correspondence has been copied as indicated below."
The next letter dated 5 September 1994 from Supreme Public Law states:
"We acknowledge your communication of 1st September 94 with reference the above stated parties. As requested the chairman in the case of Clarke v Luton & Dunstable Hospital was a Mr JM.Wheeldon. However we must stress that we do not want the case to be heard by a different chairman in the Bedford Tribunal as suggested, but to be heard in Croydon or in one of the London Tribunal if at all Croydon is only unable to accommodate the case at a later date."
At page 10 the letter dated 9 September 1994 from the Regional Office of Industrial Tribunals states:
"I have referred the letter and case file to the chairman (Mr W B Carruthers) (this time a different Chairman, who I understand is even more experienced than Mr Drysdale - both are very experienced chairmen) who directed I write to you in the following terms:
`I note he requests a transfer to the London South region on the grounds of bias in connection with another case where he acted for the applicant at Bedford. The respondents oppose the transfer.
I refuse the transfer. If the applicant is dissatisfied with the decision in the other case (that is referring to the case of Clarke which the correspondence had referred to) and has grounds for appeal in that case, it is certainly not a reason for transferring the case to another region. So far as the chairman and members of the case are concerned, I leave that to the clerks to arrange in the usual way. The chairman and members in the other case are not debarred from sitting in the present case'."
On the face of it, the application to transfer was on the basis not merely that a particular Chairman had shown bias in another case, but that nobody sitting at the Tribunal at Bedford should hear the case; and it is very important to remember that the Tribunal consists not only of the Chairman but of two other Members, lay Members as they are sometimes called, who have an equal voice with the Chairman in the decision on facts which have to be reached.
That was the state of affairs on the application for transfer which had been made in August; it had been refused.
The hearing date was not far off. It had been fixed a substantial time before. It was to be on 15 September. Supreme Public Law (International) wrote on 12 September to the Regional Secretary of Tribunals as follows:
"We thank you for your fax of today's date and refer you to our correspondence of 30 August and 5 September where your office has been notified that we do not wish the matter to be heard in the Bedford Tribunal. In such circumstances the said matter must stand adjourned to another Tribunal as instructed and in such circumstances we do not understand as to the reason why yourselves are it would appear still interested but it was seen in that Tribunal. In the circumstances as the personal representative and legal adviser the matter must stand adjourned as previously notified. No attendance to take place by either party to the proceedings. Yours faithfully."
The substance of that letter was put in a letter of 12 September to the Respondents' solicitors.
"The Bedford Tribunal it would appear that they are insisting that the hearing take place in that Tribunal and we have notified the Regional Office at Bury St Edmunds since 16 August that we do not want the hearing taking place in the Bedford Tribunal. The question now arises who is authorised to give leave of the Applicant for a hearing in a different Tribunal. We were only notified at today's date that the hearing had been altered from 2 to 1 day. Since our application to Bury St Edmunds we have other appointment for 15 September 1994 which we are bound to attend and our objection still stands that we do not want this said case to be heard in Bedford Tribunal."
It was true, apparently, that Supreme Public Law (International) had been notified that instead of the two days which had been set aside to hear this case, the Chairman would not be available on the second day (16th September) and therefore the matter would proceed on 15 September and if it were not finished on that day, it would, in the usual way, continue to an adjourned hearing; which would be a misfortune because adjournments are always a source of additional work to the parties and involve extra work for the Tribunal too, in getting the case up again. That was what the Tribunal proposed to do.
As can be seen from looking at the letters which I have read, the application had been duly made to the Tribunal but the Tribunal had refused it in the letter to which I have referred. The letters which I have just read are written on the plain basis that that refusal, first of all, was a matter of doubt because it was not clear who should have refused it and secondly, and in any event, that the Applicant had a right to say in which Tribunal his case should be tried on the grounds that all those Chairmen who sit at Bedford are disqualified by bias, or something of that sort, from presiding over any such trial. It was to be transferred elsewhere. The Applicant had a right to that.
That is, on the face of it, a wholly irregular view. Irregular in every way. The complaint, as the Chairman pointed out, about the Tribunal which had tried another case and the conduct of the Chairman in that case, if it was a just complaint, should be made the subject of an appeal. As to the allegation (quite apart from that case) that the Members of the Tribunal at Bedford were in some way disqualified, no particulars whatsoever were given to justify that averment and indeed to accede to such an averment would mean that an applicant could go as it is called "forum shopping". That is to say, that if he did not like a particular tribunal, he could say no, I would rather the case went to Northumberland or whatever it might be. Apparently the Applicant was insisting on a right. I will continue with the narrative before I make any further comments on that matter.
The matter came before the Industrial Tribunal sitting at Bedford under the chairmanship of Mr Drysdale on 15 September 1994. The Respondents were there and represented and wished to proceed. The Tribunal, with its Chairman, was there and ready to proceed. Mr Lee, who under the title of Supreme Public Law appeared too, in spite of having as he said an appointment elsewhere, applied for an adjournment. I hope that the convenient course is for me to read what was said by the Tribunal in dealing with the application. The Chairman, and the Members through the Chairman, said in their Extended Reasons:
"1 A Notice of this Hearing, as a 2-day hearing, for the 15 and 16 September 1994, was sent to the parties on the 18 February 1994. (In other words, something of the order of 7 months before.) On the 16 August 1994 the applicant's representative applied for this case to be transferred to Croydon Industrial Tribunals, South London "In view of the manner an earlier hearing (at Bedford) was conducted". On the 24 August 1994, the tribunal asked the applicant's representative to be more specific in his objections to the hearing being heard at Bedford. (They then refer to the reply dated 30 August 1994) the applicant's representative said that what they objected to was the conduct of the Chairman at a recent tribunal hearing."... (They go through the history of the correspondence which I have already read) By a letter of 9 September 1994 the applicant's representative was informed that the application for transfer of the case away from Bedford was refused. By a fax of 12 September 1994 the applicant's representative was asked to contact the tribunal to confirm that somebody would be attending the hearing on Thursday the 15 September and was told that it would not continue to Friday the 16 September. The applicant's representative was also told by fax, the same day, that the request for transfer to another region had been refused,... By fax of 12 September 1994 the applicant's representative reiterated his objection to the hearing being held at Bedford and indicated that he did not intend to attend. On the same day he sent a letter to the Respondent's solicitors, not copied to the tribunal, in which he accepted that the tribunal was insisting that the hearing should take place at Bedford, objected to the hearing being altered from two to one day, and stated that he had another appointment on the 15 September.
2 At this hearing, Mr Lee, the applicant's representative asked for an adjournment on the following grounds:
(i) The application for transfer ought not to have been refused.
(ii) He wanted to appeal to the EAT against the refusal of the transfer.
(iii) He objected to the involvement of a certain representative of ACAS.
(iv) He wanted a hearing of two days, not merely one.
(v) He objected to receiving witness statements on the day of the hearing, and in this connection referred to Rule 8(5) of the Industrial Tribunals Regulations 1993.
(vi) He had an appointment at 2.45 pm which it was necessary that he should keep.
3 As to these various grounds:
(i) The tribunal has no power to reverse a refusal already made by the Regional Chairman.
(ii) The applicant's representative had not earlier indicated an intention to appeal against the refusal of the request for a transfer.
(iii) The representative of ACAS in question was not involved in these proceedings.
(iv) The hearing for Friday the 16 September had had to be abandoned because a Chairman was not available. However, the hearing of today could, of course, have been adjourned to a further hearing at an early future date if necessary.
(v) The relevant passage in the Rules refers to representations in writing, which would be made by a party not intending to attend. Mr Lee's objection was to statements of evidence added to a bundle of the documents already in Mr Lee's possession, the evidence being that which would in due course be given by the witnesses. Miss Wheatley offered to withdraw these statements if Mr Lee did not want them included.
(vi) Mr Lee has known of this hearing since the 18 February 1994. It was entirely his own fault that he had made an appointment on a date of which he was already aware. He had no reason to assume that his application for a transfer would be granted.
4. Mr Lee confirmed his intention to appeal against the decision to refuse the transfer of this case to another region. We do not think that we should put any pressure on Mr Lee to pursue this appeal. It is sufficient that this case should merely stand adjourned and that the tribunal takes no further action in connection with this case until an application is made for a hearing on behalf of the applicant."
Then they come to the question of costs:
"5. Miss Wheatley has applied for the respondents' costs of and occasioned by this adjournment in a sum which she has limited to £500, relying on Rule 12 of the Industrial Tribunals Regulations 1993. We think that in the circumstances the respondents' costs of attending the hearing have been incurred unnecessarily and that we should award costs against the applicant in the exercise of our discretion under that Rule."
I mention that particularly because that is part of the appeal to us.
That was the state of affairs on 16 September. On 19 September the applicant put in his appeal again acting with Mr Lee's assistance. It was a Notice of Appeal which is at page 1 of our bundle:
"TAKE NOTICE:- that the applicant is appealing against the decision of the Chairman of the Industrial Tribunal (Bedford) to refuse his application of 16th August 1994 for transfer of the proceedings to the Croydon Industrial Tribunal or to one of the London Industrial Tribunals as afforded him under Rule 19 of the Industrial Tribunal Rules of Procedure 1993 and further take notice that this application shall also be treated as a notice to the Industrial Tribunal (Bedford) to review the chairman decision of his own without a hearing as afforded the applicant under Rule 11 of the Industrial Tribunals Rules of Procedure 1993:"...
Grounds are then given for the appeal against the refusal of the application to transfer. There is an appeal against the costs which had been awarded on 15th September by the Tribunal. The Appellant makes various comments on the order for costs. He then refers to various matters which he has not dealt with before us today and which are clearly incompetent. First of all he wants to include an application under the Health and Safety at Work Act. That is referred to but has not been mentioned today. Then there is a matter which was mentioned today but then abandoned; it was said that the Chairman had ordered the Applicant to lodge his appeal within 7 days. We asked Mr Lee whether he could point out to us the order, the passage in the judgment, or whatever it might be, in which that order had been made; and he could not. Furthermore, it is quite clear from the decision of the Tribunal, which I have read, that the Tribunal expressly said that it would be wrong to bring pressure to bear on Mr Lee to pursue this appeal and as he had applied for the matter to be adjourned, that is exactly what they did. But they say in their decision that in fact the Respondents had been brought there unnecessarily and that it was right to order the Applicant to pay costs of £500.
That is the situation with regard to the Notice of Appeal. It will be observed that the Notice of Appeal is said to serve also as a notice of an application to review the decision not to transfer. That would appear to be an improper way of proceeding. A Notice of Appeal is addressed in a quite different way and has quite different consequences from an application to review but nonetheless, however informally, that was apparently treated as an application to review the decision.
I now come to matters which are pure narrative and which cannot affect our decision. On 18 October, Mr Carruthers did entertain the application for review. His decision is at page 17 of our papers. He decided, and gave his reasons, that he had in fact no power whatever to conduct a review. Of course we are not hearing an appeal (I should like to emphasise that) against Mr Carruthers' decision. The Notice of Appeal ante-dates the promulgation of that decision and there has been no further Notice of Appeal, so far as appears to us. But what Mr Carruthers says appears to be right. It is a well-known curiosity of the delegated legislation contained in the Rules that there is no power to review an interlocutory order. That has been held in several cases not to prevent a Tribunal, or a Chairman acting on behalf of the Tribunal, from reconsidering an interlocutory order. Indeed, it is obvious that justice cannot be done unless a Tribunal can reconsider its interlocutory orders. One thinks of many examples: the Tribunal may at an interlocutory stage adjourn a case or order some further particulars. It may make an order for discovery. It may make all sorts of interlocutory orders which may prove, in due course, not to be what is required. The circumstances may change and the orders may have to be varied or added to.
The mere fact that the Tribunal cannot, as a matter of strictness, "review" these orders, does not mean that it cannot reconsider, as part of its duty to conduct a fair trial, any interlocutory orders that it has made. Mr Carruthers, having quite rightly as far as we can see decided that he had no jurisdiction in the matter, nonetheless went on to consider other grounds and to see whether he should act informally: and he said that he found the suggestion justifying the application for a transfer to be scandalous. It was a scandalous suggestion, he said, and he would, if he had the power to entertain a review, refuse it on the basis that it had no reasonable prospect of success. That is criticised. He should not have sat by himself says Mr Lee. But it seems to us that the Chairman was well justified and had full jurisdiction to consider the matter if the order was said to require reconsideration. He could reconsider it while not reviewing it and he has reconsidered it in that way, informally, and given his decision.
Again, as a matter of history, in due course the Tribunal, this time sitting as a full Tribunal under Mr Drysdale's Chairmanship with two Members, did review its decision about costs. It found that it had no reason whatever to interfere with its own decision as to making an order for costs, but in view of the fact that the Applicant was without adequate funds they reduced the amount of the order for costs.
I now turn to the matter before us today, which relates to the refusal to transfer, and also the order for costs which was made on 15th September. Mr Lee, who is either employed by the organisation called Supreme Public Law (International) or, so to speak, trades under that name, put forward various matters to us. He said that the appeal was against, amongst other things, the refusal to review. As the refusal to review which I have referred to came after the Notice of Appeal that is an obvious absurdity and cannot possibly proceed. If there is to be an appeal about that or any other part of the case, it must be pursued by other means.
Then he said, and this echoes the letters of 12 September, that the Applicant was entitled to have the matter transferred under Rule 19 of the Industrial Tribunal Rules. Having heard that submission, we look at Rule 19 of the Industrial Tribunal Rules and we find that Rule 19 has simply nothing whatever to do with it. It is concerned solely with the procedures to be followed if a Tribunal wishes to transfer proceedings from England and Wales to Scotland or vice versa, if a Tribunal in Scotland has decided to transfer proceedings to a Tribunal in England and Wales. It has absolutely nothing whatever to do with an application to transfer proceedings which are pending in Bedford to Croydon or any other Tribunal in England.
When we pointed out that view, which we formed provisionally, to Mr Lee, he at first said that he felt unable to understand what we were saying; so we had really a rather embarrassing discussion with Mr Lee in which he said "Well you tell me how I can get it transferred." The answer seems to be simply this (although we have not looked into it) that under Rule 5 the President or Regional Chairman shall fix the date, time and place for the hearing of the originating application. A notice is to be sent then to the parties not less than 14 days before the hearing. As we have said this was arranged seven months before the hearing and it was not until August, 6 months later, that Mr Lee applied to have it transferred.
What has been fixed can of course be changed. There is plenty of authority for saying that. With regard to these interlocutory orders, if good reason is shown for a transfer, the Regional Chairman can order it.
I deal first of all with the order to transfer. As I have said, in our view, the Tribunal had ample jurisdiction, notwithstanding that it could not review this order, to make a fresh one and to transfer the case if the requirements of justice so dictated. Not a light thing to do, not a thing which should be done without careful consideration but the Chairman, having considered the matter, and having asked for particulars of what was complained of, said that he would not transfer it. The Order was refused. When it came before Mr Carruthers on the application, however misconceived, for a review, he said, with justice we think, that what was said on behalf of the Applicant in support of the application to transfer was not merely unjustified but scandalous. As he well said, if another case had gone wrong and the Chairman had shown bias or was alleged to have shown bias, the correct remedy was to appeal the matter: and that appeal would be entertained, because bias is always a matter of law and we will not allow a decision to stand if we find it to be produced by bias on the part of the Tribunal.
With regard to the suggestion that no Tribunal that sat at Bedford was fit to try the case that was, as the Chairman said, scandalous. It was a plain suggestion that those very experienced Chairmen who sit to try these cases, and the industrial Members who sit with them, were not fit to try the case, based apparently on the experiences of Mr Lee. Anybody who wonders if Mr Lee might possibly have had a slightly rough passage in front of one or more Tribunals and is wondering why that might be, has only to consider the papers and the facts in this case. We can find no fault in the exercise of the discretion of the Chairman to refuse the transfer. He asked upon what grounds it was made; he considered those grounds; and he refused it. We would agree with what fell from Mr Carruthers when he conducted the reconsideration of the order not to transfer.
We now turn to the order for costs which was made. It appears to us that anybody reading the facts, set out with admirable clarity in the decision of 15 September, would be very surprised if an order for costs had not been made against the Applicant. This was an application to adjourn made on grounds which appear to be wholly frivolous. Mr Lee said that he, appearing on behalf of an organisation called Supreme Public Law, had an appointment elsewhere at 2.45 p.m. that afternoon. That is a frivolous thing to say in the circumstances. It is also plain from the letters that Mr Lee had been under the false impression throughout that having asked for a transfer he was entitled to it. Nothing could be further from the truth than that. It is based on a misapprehension which we do not think could possibly be formed by any person familiar with the law. He was asking for something which was in the discretion of the Tribunal and the only matters which he put forward to support it were scandalous matters. It was quite impossible, we think, for that application to be granted.
However, whatever our views on the subject, the question is whether there was material upon which the Tribunal could make the order for costs, which we have referred to. In our view, there was ample material. The Rules provide expressly for such a matter. Rule 12(4) says:
"Where the tribunal has on the application of a party postponed the day or time fixed for or adjourned the hearing, the tribunal may make orders(that is for costs) .... against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment."
That gives the Tribunal in such circumstances an unfettered discretion. When one reads the decision of the Tribunal given on 15 September, it is quite plain not merely that there were grounds upon which they could exercise their discretion, but that those grounds were indeed overwhelming. We should be surprised if an order for costs had not been made in the circumstances.
Mr Lee complained of one or two other matters. I deal with these shortly out of courtesy to Mr Lee because they do not arise directly. He complained that at the hearing on the 15th he was handed, by the Respondent's representative, witness statements which were proposed to be used in due course. He referred us to Rule 8(5):
"If a party wishes to submit representations in writing for consideration by a tribunal at the hearing of the originating application he shall present his representations to the Secretary not less than 7 days before the hearing and shall at the same time send a copy to each other party."
That seven days is almost certainly subject to variation in the discretion of the Tribunal (Rule 15) but that does not arise. What Mr Lee says is that those witness statements, which were handed to him on that occasion, were "representations for consideration by the Tribunal." We are all of the opinion that that is simply an impossible construction of Rule 8(5). They were nothing of the sort. The Respondent could, had it wished, have called the witnesses viva voce in the ordinary way, without putting in their statements, but in accordance with good practice which is encouraged by all courts and tribunals witness statements are handed to the Tribunal and to the opposite party as soon as it can conveniently be done, so as to save that party and the tribunal a lot of unnecessary writing. So far from being a "representation" to the Tribunal they are nothing of the sort. They are simply the witnesses' statements. As a concession to justice and as an advantage to the other side, it is normal I think, and certainly common, for parties to hand over witness statements at an early stage to the other party and to the Tribunal.
Needless to say, if those statements or anything else which occurs take another party by surprise, the Tribunal may have to hear an application for an adjournment. Nothing of that sort is suggested in this case, it is simply said that there was a non-compliance with Rule 8(5). It appears to us, both for the reasons put forward by my colleague Mr Cowan and on the plain reading of the rule, that that submission is quite ill-founded.
Then Mr Lee says that the Chairman should not have heard the application for review, he should have held a pre-hearing review under Rule 7. That appears to us to be a submission which is misconceived in every way.
A pre-hearing review is for the purposes set out in Rule 7 and the Chairman, Mr Carruthers, did conduct the matter properly and said that having reconsidered it he could not grant the review for the reasons which he set out. For the reasons we have stated, we cannot in any event exercise any jurisdiction in the matter.
We have considered the matters which were put before us at this hearing. We have each of us considered all the papers. We are all satisfied that this is an appeal which is brought under a number of misconceptions. It is without any justice or support whatever and is misconceived. We think that the allegations made in support of the application to transfer are indeed scandalous and that impression was reinforced when Mr Lee suggested to us that the order for costs was made because the Chairman had "an axe to grind". Having heard everything said by Mr Lee we are satisfied that there are no merits in this appeal. The only reason I have gone on at considerable length is the hope, however faint, that Mr Lee and his client Mr Parchment will understand the basis upon which we have decided this case and in respect of Mr Parchment's other complaints (which may, for all we know, be very well justified matters in which he is entitled to justice at the earliest opportunity) will to use the colloquial expression "get on with it" and not waste time with technical legal points of no merit whatever, which I am afraid we very definitely got the impression Mr Lee had no understanding of.
Our decision is that the appeal is dismissed.
COSTS D PARCHMENT v IBC VEHICLES LTD
We have all come to the conclusion that this appeal was indeed unnecessary and improper and vexatious and that there has been unreasonable conduct in bringing it. We think that in those circumstances we should exercise our discretion to make an order for costs. We have been told that the Applicant is impecunious. It may well be that the only practical effect of making an order for costs will be a set off, if he is successful in those proceedings which he brings against the company. We think they are quite irrelevant to our considerations. The fact is that an appeal has been brought to us which is not an appeal on a matter of law at all, which involves scandalous allegations and a failure by Mr Lee to understand the first principles on which such an appeal can be brought. In those circumstances we propose to make an order for costs in the sum of £750 which we are told are the costs of the Respondent's appearance here. It is in our view a modest sum and no adequate response to this not entirely simple case could have been mounted without costs of at least that sum. So we make an order for £750 costs against the Appellant. We think you should ask yourself Mr Lee, very seriously, whether those are not costs which your firm should indemnify the Appellant against. It is quite clear to us that it is on your advice, and on the view which you take in these various matters, that this frivolous appeal has been brought.