United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1109_94_2301

Appeal No. EAT/1109/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 January 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J A SCOULLER

MRS P TURNER OBE

---

(1) MR M WYNN

(2) MR P BOYLE          APPELLANTS

(1) LEDWOOD CONSTRUCTION LTD

(2) CHB FABRICATIONS LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MISS S MOOR

(Of Counsel)

Messrs Pattinson & Brewer

30 Great James Street

London WC1N 3HA

For the 1st Respondent MR R A BOWMAN

(Solicitor)

Messrs Laytons

Saint Bartholomews

Lewins Mead

Bristol BS1 2NH

For the 2nd Respondent Messrs Blake Lapthorn

New Court

1 Barnes Wallis Road

Segensworth

Fareham

Hampshire PO15 5UA


 


MR JUSTICE MUMMERY (PRESIDENT): On 15 and 16 September 1994 the Industrial Tribunal, sitting at Southampton, heard applications by Messrs Boyle and Wynn against Ledwood Construction (Southern) Ltd and CHB Fabrications Ltd. In the extended reasons for the decision, notified to the parties on 19 October 1994, the Tribunal unanimously decided that the inclusion of the Applicants names on a list sent by their Trade Union to each of the Respondents did not amount to an indication that each of the Applicants were seeking employment, or was making an enquiry for employment, or was making an application for employment. Secondly, that the provisions of Section 137(1) of the Trade Union Relations Consolidation Act 1992 apply only to the pure membership of a trade union and not to any incidents or benefit of trade union membership.

On 23 November 1994 Messrs Wynn and Boyle served a Notice of Appeal from the decision of the Industrial Tribunal. A Respondents' answer was served by Ledwood Construction (Southern) Ltd on 14 February 1995. On 24 February 1995 judgment was given in this Tribunal in Harrison v Kent County Council [1995] ICR 434 which could reasonably be believed to give some support to the arguments of the Appellant. On 16 March 1995 the House of Lords handed down a decision in Associated Newspapers v Wilson [1995] ICR 406 which led to the reconsideration of the appeal. On 2 June 1995, Messrs Pattinson & Brewer ceased to be instructed as solicitors for the Appellants. On 14 June the Transport & General Workers Union indicated that they were not acting for the Appellants. On 22 June Mr Boyle gave notice of his withdrawal of appeal. On 18 July Mr Wynn gave notice of his withdrawal of the appeal.

The Respondents took different positions in relation to the appeal. The solicitors for the second Respondents, CHB Fabrication Ltd, had taken no active part. They were content to consent to the withdrawal of the appeal. A different position was taken by Ledwood Construction.

This is not the first time the matter has been before the Employment Appeal Tribunal. It first came before His Honour Judge Hull, Miss Holroyd and Mrs Prosser on 2 November 1995. On that occasion Mr Bowman, solicitor acting for Ledwood Construction, attended, but the Appellants did not attend and were not represented, nor were CHB Fabrication Ltd. Because there was a difficulty in the composition of the Tribunal, the matter had to be adjourned to a date to be fixed. This is the adjourned hearing.

We have had to deal with three matters. The first is whether leave should be granted for the appeal to be withdrawn, and, in consequence, the appeal dismissed. The second is whether we should, on the application of Ledwood Construction, make an order for costs of the appeal against the Appellants. The third is whether we should, on the application of the Appellants, make an order for the costs of today against Ledwood Construction.

We can deal briefly with each of these points, helpfully debated by the parties in the Skeleton Arguments and in the elaboration in oral argument. On the first point, there is no need to say much. Soon after the start of the appeal, Mr Bowman, on behalf of Ledwood, withdrew his opposition to the grant of leave to withdraw. The normal practice of the Tribunal is that, if an Appellant gives notice that he wishes to withdraw his appeal, this is communicated to the Respondent. If the Respondent consents, then an order is usually made dismissing the appeal by consent, without the necessity for an oral hearing. That saves time and money for everybody. A Respondent may, however, on certain grounds, oppose the grant of leave to withdraw: the most common one is, as has arisen in this case, that costs have been incurred in relation to the appeal. A hearing is required for the Respondents to make an application for costs. That is one of the grounds upon which the application for leave to appeal was opposed. The other ground, which has not been pursued, is that Mr Bowman submitted that this Tribunal should exercise its discretion not to withdraw the appeal, because his clients wish to have the preliminary decision of the Industrial Tribunal, against which this appeal was brought, affirmed. He explained the reasons why there would be some practical benefit for his clients in having a decision of this Tribunal, affirming the correctness of the decision of the Industrial Tribunal, even though the Appellants no longer wished to appeal.

We were, however, satisfied on reading the papers and the arguments and in our discussion with Mr Bowman, that he was right not to pursue this matter. If the Appellants wish to withdraw the appeal, knowing that the consequences of granting leave to withdraw is that the appeal will be dismissed, there is no longer any live issue for the determination of this Tribunal. This Tribunal exists to hear appeals on matters in issue between the parties. It does not have a jurisdiction to deliver advisory opinions and judgments on matters which are, or have become hypothetical, or academic. We are not here to give marks out of ten to the Industrial Tribunals for their decisions. We are here to hear an argument by an Appellant that there is an error of law in the Tribunal's decision. If there is, the appeal will be allowed. If there is not, the appeal will be dismissed. If the Appellant no longer wishes to argue that there is an error of law in the decision, the matter has become hypothetical. It would be right to exercise our discretion to grant leave. The consequence is that the appeal will be dismissed.

We would add, for the purpose of putting the matter beyond doubt, that Miss Moor accepts that, in consequence of her withdrawal and the dismissal of the appeal, her clients are estopped from challenging the correctness of that decision on the facts set out in the Industrial Tribunal decision in any subsequent court, whether it is the Industrial Tribunal or in this Tribunal. Even though we have not heard an argument and made a decision on the merits, the effect of dismissing the appeal is to create a situation in which the doctrine of res judicata will apply. Our order will not of course prevent others who are not parties to these proceedings from seeking to challenge in other proceedings the reasoning of the Industrial Tribunal decision. But we are not concerned with other proceedings. We are only concerned today with the case of Messrs Wynn and Boyle v Ledwood Construction.

For those reasons, Mr Bowman having withdrawn his opposition to the grant of leave, we grant leave to withdraw this appeal and we dismiss the appeal.

That leaves the question of costs. We heard cross-applications, that is unusual. It is unusual even to have simple applications for costs in this Tribunal, because of the limited nature of the jurisdiction conferred. This is not a place where costs follow the event. The limited jurisdiction is set out in The Employment Appeal Tribunal Rules 1993 Rule 34(1). That provides:

"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."

Mr Bowman's application was made on this basis. There had been unreasonable delay on the part of the Appellants in making up their mind on this appeal, whether to pursue it or withdraw it. He should have all the costs of the appeal in consequence. We have considered this matter in the light of the authority cited by Miss Moor, TVR Engineering Ltd v Johnson [1978] IRLR 555. We have reached the conclusion that the time which passed between the handing down of the speeches of the House of Lords in Associated Newspapers v Wilson in the middle of March 1995 and the decision of Messrs Boyle and Wynn to withdraw their appeals, notified in the third week of June, and then in mid-July 1995, was not an unreasonable period. For that reason alone, we do not exercise our discretion to make an order for costs of this appeal. We are familiar with the case of Associated Newspapers v Wilson. It is not a simple and straightforward decision of the House of Lords. It was a decision on a difficult point on which separate judgments were given. It would take time to study them, to obtain advice, and decide what to do on the appeal in a case affected by the House of Lords decision.

We have heard arguments on other aspects of this. We have had helpful submissions as to the effect on our jurisdiction as to costs of the fact that this was in a test case. It was said it was a modest claim. It was also said that, as already mentioned, there had been unreasonable delay. We do not think it necessary to express any view on the points about the test case and the alleged modest nature of the claim. It is sufficient for the purposes of our decision to say that this was not a case of unreasonable delay or unreasonable conduct, in relation to the time to reach a decision to withdraw the appeals. An application was made by Miss Moor for the costs of today. We decline to order those. She asked that the costs of today be ordered to be paid by the Respondents on the grounds, first, that the position taken up to this hearing and at the start of this hearing, that leave to withdraw the appeal should be refused, was unreasonable. She said it was not arguable. She said, as we have held, that there was no live issue in consequence of her clients' decision to withdraw the appeal. There was no prospect of persuading this Tribunal to compel her clients to continue with an appeal, which they have decided they wish to withdraw. As for the other purpose of today, Mr Bowman's application for costs, she said that that application was misconceived. It had been unreasonable conduct on the part of the Respondents to take positions on leave to withdraw on costs. That attitude had made the hearing today and the costs involved necessary.

We have considered those arguments. A number of other more detailed points were made, on which we do not feel it necessary to express a view. We reject her application for costs on the simple basis that there had to be a hearing today to deal with the application for costs, quite apart from the question of leave to withdraw. We do not think it was unreasonable on the part of Ledwood to seek an order for costs, even though we have rejected it. As is clear to us from the case of TVR Engineering v Johnson, there is reasonable room for argument about whether there has been reasonable or unreasonable delay in making a decision, whether to pursue or withdraw an appeal. We do not think that there was any unreasonable delay on the Appellants' part in making up their mind about withdrawing the appeal. But we do not think it was unreasonable conduct on the part of the Respondents to seek an order for costs. For all those reasons the order today is leave to withdraw the appeal, dismiss the appeal and with no order as to costs.