United Kingdom Employment Appeal Tribunal

 


BAILII case number: [1995] UKEAT 646_95_1810

Appeal No. EAT/646/95

EMLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 October 1995

Before

HIS HONOUR JUDGE J HULL QC

MR J H GALBRAITH CB

MR N D WILLIS

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MR T LYNAS          APPELLANT

PRUDENTIAL PORTFOLIO MANAGERS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY

OR REPRESENTATION ON

BEHALF OF THE           APPELLANT


 


JUDGE J HULL QC: In this case Mr Lynas was employed by Prudential Portfolio Managers Ltd at their Oldham premises (79 Union Street) as a building superintendent; his employment began on 21 August 1989 and he was made redundant on 2 December 1994. He complained to the Industrial Tribunal on 14 January 1995 that he had been unfairly dismissed.

The case was listed for hearing; the listing was done on 23 March and the hearing date was to be 26 April 1995 and on that day the Industrial Tribunal was to sit at Manchester to hear the case.

The Respondents, who are of course a well known London company, had come to Manchester from London with Counsel, the Solicitor and witnesses apparently, and the hearing in fact never took place because at 9.40 am there was a telephone call from Mr Lynas's wife to say that he was ill and wished to withdraw his application.

The Chairman Mr Leahy, who sat alone, as he was empowered to do because this was a case of dismissing an application on withdrawal, dealt shortly with the reasons for his decision as to costs. There was of course, as a result of the phone call, no dispute that the matter should be dismissed. He said that:

"The application is dismissed on withdrawal by the applicant. The respondents have applied for an order for costs ..."

And then he gave his decision:

" ... and the applicant is ordered to pay the respondents' costs limited to the sum of £200."

He said in his reasons, after setting out the facts, that Mr Lynas had consulted the Citizens' Advice Bureau and he then referred to the phone call.

"2. ... the applicant's wife telephoned to say that the applicant wanted to withdraw his claim `as he is sick'. It was pointed out to the applicant's wife that, in the circumstances of illness, he could, through her, make an application to postpone the hearing but she insisted that he wishes to withdraw. That news was communicated to the respondents upon their arrival today. They have arrived with witnesses who have travelled from London and who travelled yesterday in order to have a pre-hearing conference."

Then he set out the grounds for the application:

"3. (a) that the applicant has withdrawn 20 minutes before the hearing which, they argue, was inherently unreasonable in the circumstances; and

(b) that the applicant's conduct throughout this matter has been unreasonable, if not vexatious and abusive."

And then the Chairman referred to various documents in the bundle of documents which were before him in preparation for the hearing. The Chairman said:

"5. It is evident to me that there was detailed, careful and protracted consultation with the applicant's union prior to any step being taken to terminate his employment by reason of redundancy, and the applicant met that step by raising a number of red herrings which, sad to say, included serious but irrelevant, untrue and `dead' allegations of corruption and misconduct on the part of certain officers of the respondent company. He continued to maintain those allegations in his reply to the respondents' solicitor's letter of 24 February."

Pausing there, we can say that allegations of that sort, however unjustified, quite apart from causing great worry and perhaps distress to the other party, in the nature of things are likely to add very greatly to the costs which are incurred.

So what the Chairman said was:

"6. I am satisfied in these circumstances that the applicant has behaved unreasonably in withdrawing at the last minute and I am doubtful as to the genuineness of the argument that he has withdrawn because of ill-health in view of the offer made to consider postponement of the case until he was better. Further, it is unreasonable, without doubt, for applicants to raise the sort of allegations which have been raised in circumstances in which they had been thoroughly explored and dealt with by the chairman of the respondent company, and then to persist in those allegations. In those circumstances I find that the applicant has acted unreasonably and that the respondents are entitled to an order for costs. I take into account, however, all the circumstances of the case in limiting this order to the sum of £200."

One of those circumstances, of course, was the relative lack of means of Mr Lynas and that was the order which the Chairman made in the circumstances. Needless to say, we can only interfere if a question of law arises.

The order was quite plainly a matter of discretion, like all orders for costs and we can act only if, in our view, a question of law arises in that the Chairman went outside the proper range of his discretion and made an order which is wholly unreasonable and insupportable in the legal sense of the word.

So we look to see what is said on this appeal. The Applicant has said, among other things:

"I was not a member of any union so how could there have been any protracted consultation with my union?".

And he criticises the Chairman for the view which the Chairman formed of the documents and the inferences which he drew and he said:

"My wife telephoned to say that I was ill (and still am) and that I wished to withdraw my application. From the correspondence received it appears to me, that the Prudential Representatives and Mr Leahy had a `discussion or hearing' at which all sorts of allegations were lodged against me; allegations that I had no chance to defend."

He continues:

"How does Mr Leahy [the Chairman] know that my allegations of corruption within the Prudential were untrue? ... I still maintain that there was serious corruption by certain Prudential staff."

And he denied that he had been told that he could have the matter adjourned, or could apply, at any rate, to have the matter adjourned. He has written us another letter in which he refers to his difficulties and he says that he is content for us to hear the appeal in his absence.

The situation (as I say) is that we can interfere only if we are satisfied that the Chairman has made an error of law. It is quite plain, on looking at the documents, that there was a great deal of material before the Chairman on which he was entitled to form the view that the applicant had behaved unreasonably. It is unreasonable, on the face of it, to refuse a suggestion by the staff, which the Chairman was quite entitled to accept was made, a suggestion that if the applicant was ill the matter should be stood out or there should be consideration of standing it out so that he could attend again when he was well enough to do so.

It is most certainly unreasonable to make allegations of a serious and unpleasant sort, which in the view of the Chairman could not carry the matter further. The Chairman, of course, had to act on the application on such material as was before him and we cannot see that he went outside his jurisdiction in any way. What he did do, as a matter of discretion, was to reduce the sum for costs to the sum of £200; that, again, is a matter entirely within his discretion. Some people would say that in the circumstances that was a very small sum; others might say it sounds a very large sum to a man in the position in which Mr Lynas is. However that may be, we are all satisfied, having thought about it, that it was a sum not outside the discretion of the learned Chairman and that too shows no error of law or principle.

In those circumstances, Mr Lynas not having attended and we having dealt with the appeal with his consent in his absence, all we have to say is that this appeal should not proceed to a hearing, for which inevitably the costs would be a very great deal more than £200; it must be dismissed at this stage.