United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 534_95_2507

Appeal No. EAT/534/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 July 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR S R CORBY

MR K YOUNG CBE

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MR B A AYOBIOJO          APPELLANT

LONDON BOROUGH OF LEWISHAM          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents MR J ALGAZY

(Of Counsel)

Solicitor to the Council

Lewisham Legal Services

Eros House

Brownhill Road

London

SE6 2EG


 


MR JUSTICE MUMMERY (PRESIDENT): The second appeal considered by the full Tribunal, relates to the striking out order. This can be dealt with relatively briefly. The position is that an order was made. It was a valid order. It had not been appealed in time and it has not been complied with. No good reason has been given to the Industrial Tribunal or to this Tribunal for not complying with it. The documents ordered to be produced are relative to the issues in the case. No privilege attaches to these documents. There has only been partial compliance and that was late in the day. An application for extension of time for appealing had been refused at the time when the Chairman of the Industrial Tribunal made the decision to strike out. The position in law is simple. The Chairman had a discretion to strike out a set of proceedings for failure to comply with an order. An appeal can only be brought against the exercise of a discretion if it is shown that the discretion was exercised on the basis of some erroneous legal principle, or by taking into account irrelevant factors, or by leaving out of account irrelevant factors.

The position in this case is that Mr Ayobiojo was given ample time to comply with the order. The time limit of the end of December passed without his complying with it. He was given notice in the decision letter of 19 December that failure to comply with the order might lead to the proceedings being dismissed before a hearing. Before the striking out order was made, he was sent a letter about the Chairman's intentions and was given a chance to respond to it. He responded, but his response, in the Chairman's view and in our view, does not justify his failure to give full compliance with the Order. We cannot emphasise too strongly the importance of parties complying with Interlocutory orders, whether they are for particulars, or for discovery of documents, or for pleadings. The Industrial Tribunal system is meant to be informal and, at the same time, expeditious and inexpensive. Failure to comply with Interlocutory orders adds to the delay in the hearing of the proceedings and increases the expense of them.

In our view, the Chairman was entitled to take a serious view of the failure of Mr Ayobiojo to comply, by the end of March 1995, with an order which the Chairman had made in his presence on 17 November 1994. The effect of non-compliance was to add months of delay to the progress of these proceedings. It has also added to the expense. If the Order had been complied with, the case would have been decided on its merits by now. As it is, we are still at the Interlocutory stage.

We are not able to identify any error in the exercise of the Chairman's discretion in this case. For those reasons we dismiss the striking out appeal.

EAT/534/95 & PA/176/95 B A AYOBIOJO v LONDON BOROUGH OF LEWISHAM

COSTS

Following the judgment dismissing both appeals, an application was made by Mr Algazy, on behalf of the London Borough of Lewisham, for an order for costs against Mr Ayobiojo under Rule 34 of The Employment Appeal Tribunal Rules 1993. It provides that:

"(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."

If an order is made under that rule, costs may either be assessed by the Appeal Tribunal or a direction given for them to be assessed by the Taxing Officer. Mr Algazy submitted that these appeals, both of which have failed, were unnecessary and were unreasonably brought. They stood no hope of success. They were without merit. No point of law had been identified. When we asked him for an indication whether he wanted us to assess costs, Mr Algazy, on instructions, produced a figure of £2,000, without a breakdown, coupled with an offer to show us his brief. We wish to make two comments. First, in future, if an application for costs is to be made and we are asked to assess it, it should be accompanied by a breakdown of the figures, provided not only to us, but to the Appellant, so that we and the Appellant are in a position to consider the figures. This is particularly so when the figure which is put forward is thousands of pounds. Secondly, we reject the submission made by Mr Algazy that special consideration should be given to his client as a local authority who, he said, were in a particularly vulnerable position in claims of this kind. The law applies to local authorities and other public employers as it does to private employers. The fact that more cases may in fact be brought against local authorities and public employers does not justify any different treatment when it comes to the exercise of discretion in relation to costs. Putting those remarks on one side, do the circumstances of this appeal justify the making of an order? It is opposed by Mr Ayobiojo who has repeated some of the points which he mentioned in argument on the main appeal. We found this a difficult point to decide, but, on balance, we decline to make an order for costs in this case. As already indicated in the judgment, there were some criticisms which we felt were justified: not of the London Borough of Lewisham, but of the way in which the Industrial Tribunal delayed in dealing with the notification of the documents order to Mr Ayobiojo and also in responding to his request for an extension of time. There was a possible source of misunderstanding on his part as to the question of an appeal and how he should go about it. Even though that did not justify allowing the appeal, it does, to some extent, explain his appeal in these cases to the E.A.T. In these circumstances, we do not make an order for costs. In saying that, we give it with a warning. As already indicated in exchanges with Mr Ayobiojo, nothing has been achieved in these proceedings, save the incurring of legal costs. That is an unsatisfactory situation. He brought a claim for racial discrimination. It is a serious complaint to bring. The object of the Industrial Tribunal system is to see that those complaints are investigated and ruled upon one way or the other. The effect of what has happened in this case is that this claim has not been adjudicated upon on its merits and never will be. Time and money, public and private, have been spent in dealing with unnecessary Interlocutory wrangles. None of this would have happened if Mr Ayobiojo had complied with the order for production of documents or, if he did not wish to comply with it, had served a Notice of Appeal within the time limits. Mr Ayobiojo should bear in mind for the future, if he is involved in other proceedings of this kind, that it is within the jurisdiction of the Industrial Tribunal, as well as the Appeal Tribunal, to make orders for costs in cases where they consider the proceedings are unnecessary or unreasonably brought or conducted. For those reasons, we give a warning as to the future, but we make no order for costs in relation to this appeal.