United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 268_94_1901

Appeal No. EAT/268/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 January 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR E HAMMOND OBE

MR J A SCOULLER

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GROSS KLEIN & CO          APPELLANTS

MRS S COLLINS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR A P KLEIN

MR H GROSS

(Appellants in person)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against an order for costs made in proceedings between Mrs Susan Collins and her former employers, the firm of Gross Klein & Co., accountants.

Mrs Collins was employed as a secretary and, later, office manager with Gross Klein from middle of June 1987 until May 1992. The circumstances in which she left employment were the subject of her complaint of unfair dismissal to the Industrial Tribunal presented on 28 May 1992.

The hearing on the merits of her case was due to take place on 16 February 1993. The Chairman of the Tribunal at London (South) was Mr D J Walker. On that day the members of Gross Klein & Co attended. So did Mrs Collins and her solicitor and her Counsel, Mr Oppenheim. Unfortunately, Mr Scuplak, an employee of a firm of personnel consultants, representing Gross Klein, did not turn up.

The circumstances in which he did not turn up are the subject of an affidavit sworn by Mr Scuplak pursuant to an order made by me in Chambers in the Employment Appeal Tribunal on 23 March 1994. He explains how Gross Klein were his employers' client and that he was representing them in connection with Mrs Collins' claim. He gives an account of how he set out on 16 February 1993 to travel to London (South) Industrial Tribunal by train, leaving Leicester, he believes, at 6.50 am on a train that was due to arrive at St Pancras at 8.20 am. He left home to drive to the station. He was feeling "under the weather". He developed stomach cramps during the course of the train journey and, by the time he arrived at St Pancras between 8.20 and 8.30 am, he was in severe pain and in no state to present a case before the Industrial Tribunal. At about 9 am he telephoned from St Pancras Station to the Industrial Tribunal to inform them that he was in no state to appear. He informed the Clerk that he was on the way to the London (South) Tribunal from Leicester to represent Gross Klein, but had become ill along the way and could not continue the journey or represent the Company. He apologised and asked that the Company's witnesses, of whom he expected Mr Gross, Mr Klein and Mr Ladhani to be attendance, should be asked to seek a postponement. He says in his Affidavit:

"I had with me the bundles of documents that had been produced and which I had collated on the previous day."

He has no direct knowledge of what happened on the application for the postponement which was granted, subject to the costs order that was made. The order was that £500 in costs should be paid by Gross Klein & Co to Mrs Collins.

He completes his Affidavit by saying that he stayed at St Pancras until 11 am, though still in pain and then felt able to undertake the journey home. He arrived in Leicester at about 12.30 pm and was home by 1 o'clock. By that time he was no longer in pain and did not think it necessary to arrange an appointment to visit the doctor. He does not know the cause of his illness.

What happened in the absence of Mr Scuplak was that an adjournment was granted. The order, which contains the order for costs, states that the Chairman was there and the Members, Mr Hardwick and Mr McGuinness, and that the order was made on 12 February 1993. The date is certainly an error. It is also an error to state that two Members took part in the making of the Order. It was made and signed by the Chairman. I will read the Order:

"The parties having attended before the Tribunal this day for the hearing of this Originating Application upon the merits of the case, and the Respondents having applied for an adjournment because their representative was apparently taken suddenly ill and had in his possession in Leicester their original documents relating to this case, the Counsel for the Applicant, Mr Oppenheim, having contested that application and sought an order for costs against the Respondents in the event of the adjournment being granted IT IS HEREBY ORDERED THAT this hearing be adjourned on Monday and Tuesday, 22nd and 23rd February 1993 respectively, and that the Respondents do pay to the Applicant the sum of £500 in respect of her costs of this hearing pursuant to Rule 11(2) of the Industrial Tribunals Rules of procedure 1985."

That is the Order the subject of this appeal. I should mention, as I mentioned in the judgment given on 23 March when this matter was previously before the Tribunal, that there has been a history of attempts to get the Industrial Tribunal, which heard the case on the merits, to review this Order. The ultimate conclusion of the Tribunal was that there was no power in the Tribunal under the 1985 Rules to review an Order made by the Chairman alone. The only remedy was to appeal. Hence this appeal, instituted by a notice of appeal served on to this Tribunal on 4 August 1993. It was the subject of the Order I made on 23 March 1994 extending the time for filing that appeal, which was otherwise out of time. On that occasion I over-ruled the Registrar's Order refusing an extension of time. The reasons for that decision are set out in the judgment of 23 March 1994.

Since the appeal has been lodged with this Tribunal, there has been a further development. There was a review hearing held by the Industrial Tribunal on 20 June and 11 July 1994. Mr Walker chaired that review hearing. Mrs Collins appeared in person and Mr Gross appeared for Gross Klein & Co. I should read two paragraphs of a 21-page statement of reasons for the decision of the Tribunal on review, which decision was notified to the parties on 17 November 1994. Paragraphs 3 and 4 deals with the aspects of costs:

"3. Mr Gross commenced his address by referring to the order for costs made in these proceedings on 12 February 1993. Despite the names of two Members being shown on that order in error, the order was, in fact, an Interlocutory Order made by the Chairman, exercising the power vested in him to do so. On that occasion, one Member who had been allocated to the Tribunal, Mr McGuiness, had not arrived, and, upon the Chairman being informed by the Clerk that the Respondents were seeking an adjournment, the Chairman decided to deal with that application, exercising his own powers, rather than keep the parties waiting longer until the third Member of the Tribunal had arrived or a replacement had been found. Mr Hardwick, who was designated a Member of that Tribunal (and, as it happens, is a Member of this Tribunal), was physically present during the proceedings but played no part in them. Whether an adjournment is granted by a Chairman alone or a Tribunal, Rule 12 confers a complete discretion to award costs in that respect.

4. As the Chairman was obliged to point out to the Respondents' former representative, Mr Scuplak, at an earlier hearing before this Tribunal, and was further pointed out to Mr Scuplak in a letter by the Regional Office on 13 July 1993, neither a full Tribunal nor a Chairman can review an Interlocutory Order made by a Chairman sitting alone - see Nikitas v Metropolitan Borough of Solihull [1986] ICR 291. Therefore, this Tribunal has no power to conduct a review of the order for costs. Whilst Rule 11(6) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, which came into force on 16 December 1993, permits a review of a Decision made by a Chairman acting alone to be held by a Tribunal appointed by either the President or a Regional Chairman, it does not appear that that Rule can have retrospective effect, so as to authorise the President or Regional Chairman to appoint a Tribunal to review the order of a single Chairman made so long before the Rule became effective."

That is the background to the continuance of the appeal in the Employment Appeal Tribunal against the order that Gross Klein & Co pay £500 costs.

Mr Gross has presented the main arguments on the appeal. As it is a preliminary hearing, he only has to satisfy us that there is an arguable point to justify the matter going to a full hearing but, as we emphasized to Mr Gross at the outset, it has to be an arguable point of law because, under s.136 of the Employment Protection (Consolidation) Act 1978, an appeal only lies to the Appeal Tribunal:

"on a question of law arising from any decision of, or arising in ny proceedings before, an industrial tribunal under"

the relevant legislation. The relevant legislation in this case is the 1978 Act.

As we also explained to Mr Gross at the outset, a question of law is one which involves the interpretation of legislation or its application to the facts of a particular case or involves a decision which can be described as perverse in the sense of a decision which no reasonable tribunal, correctly directing itself on the law and the facts, could have arrived at.

Has Mr Gross shown an arguable legal point? He has presented the main submissions. Mr Klein added a few comments of his own. We invited Mr Ladhani if he wished to say anything. He declined.

The main point made by Mr Gross was that there is an arguable error of law as Mr Hardwick, the Chairman, had no power to make the costs order. That would be a point of law if there was anything in it. There is nothing in it, having regard to the provisions in the Rules which were then in force, the 1985 Rules. Under the 1985 Rules, there is provision in Rule 11 for orders for payment of costs on a postponement or adjournment of a hearing. Rule 11(1) deals with the general provisions for ordering costs. That is confined to cases where the Tribunal is satisfied that the proceedings have been brought or conducted frivolously, vexatiously or otherwise unreasonably. Paragraph 1 is, however, subject to paragraph 2, which deals specifically with adjournments and postponements, that provides:

"Where the tribunal has on the application of a party to the proceedings postponed the day or time fixed for or adjourned the hearing, the tribunal may make orders against or, as the case may require, in favour of that party as at paragraph (1)(a) and (b) of this Rule as respects any costs or expenses incurred or any allowances paid as a result of the postponement or adjournment."

That power is not subject to the precondition that the Tribunal is of the opinion that the proceedings have been brought or conducted frivolously, vexatiously or otherwise unreasonably.

There was, therefore, power to order costs without regard to matters of vexatious or frivolous or unreasonable conduct. The question did the Chairman (alone) have power to make the order? There is no doubt that he had power to grant the adjournment. Under Rule 12(2)(b) it provided that a Tribunal may, if it thinks fit:

"postpone the day or time fixed for, or adjourn, any hearing".

The powers of the Chairman to do acts which the Tribunal could have done is governed by Regulation 12(4) which provides:

"Any act other than the holding of a pre-hearing assessment under Rule 6, the hearing of an originating application or the making of an order under Rule 10(1), [Rule 10(1) deals with reviews of tribunal decisions] required or authorised by these Rules to be done by a tribunal may be done by, or on the direction of, the President or the chairman of the tribunal or any chairman being a member of the panel of chairmen."

That rule makes it clear that the chairmen alone had power both to adjourn or postpone the hearing of the originating application and had power to make an order for costs under Rule 11(2).

In those circumstances there is no arguable point to the effect that the Chairman had no power to make the order.

The other complaints made by Mr Gross and Mr Klein are not, in our view, complaints which constitute errors of law. There is a complaint that Mr Gross and Mr Klein did not receive, as litigants in person, the guidance which should have been given by the Chairman. There were complaints that, in any case, Mrs Collins was not ready to go on, as evidenced by the fact that within a short time she made amendments to her originating application and later applied for witnesses to be ordered to attend. They felt generally that they had been badly treated by the Chairman who, they said, was cross with the situation which he had been asked to deal with. As to the comment that, if any action was to be taken by Gross Klein & Co, it was against their representative, for his failure to turn up with the documents to represent them, they felt that would have been a divisive thing to have to do. That was all part of the unreasonable way in which they were treated at the hearing on 16 February.

In addition to that, Mr Klein has drawn our attention to the clerical mistakes in the order. The date is wrong. It is wrong as the order was made by the Chairman alone, to include the names of the Members. It was wrong to include the name of Mr McGuinness, as one of the Members anyway, because he had not turned up to hear the case that he was allocated to hear.

They are errors, but they are not errors of law. They are clerical or factual errors, but there is no appeal against those.

Having examined the arguments put forward by Mr Gross and Mr Klein and bearing in mind the principles referred to in their submissions as laid down by the cases (and there are a fair number of cases cited as relevant to the appeal against costs), we have come to the conclusion that there is no arguable point of law. They may feel aggrieved at what happened; that it was not their fault that they found themselves in a situation without a representative and without papers; that they found themselves in a situation where they felt unable to conduct the case and to ask for an adjournment. There is not an appeal simply on a grievance of that nature. There has to be a point of law. There is not one on this appeal that is even arguable. We therefore dismiss the appeal.