United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 530_95_1904

Appeal No. EAT/530/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19th April 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS T A MARSLAND

MISS S M WILSON

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FORD MOTOR CO LTD          APPELLANTS

N A SHAH & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

APPLICATION FOR COSTS

Revised


 


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APPEARANCES

For the Appellant MR D GRIFFITH-JONES

(of Counsel)

Lovell White Durrant

Solicitors

65 Holborn Viaduct

London EC1A 2DY

For the Respondents MR R ALLEN Q.C.

Pattinson & Brewer

Solicitors

30 Great James Street

London WC1N 3HA


 


MR JUSTICE MUMMERY (PRESIDENT): On 3rd October 1995, this tribunal, constituted as at today, heard an appeal by the Ford Motor Co. against an interlocutory order made by the Chairman of the Industrial Tribunal at Stratford on 17th May 1995 granting leave to the applicants to amend their originating application by substituting amending grounds to support complaints of racial discrimination against the Ford Motor Co.

The appeal was dismissed. The reasons for dismissing the appeal were set out in the judgment handed down on 18th December 1995.

The hearing today is to determine the application made by Mr Shah and his fellow applicants for costs of the appeal.

There is no dispute about the amount of the costs incurred by the applicants on the appeal. They are set out in a schedule. The total is £1,918.19.

Mr Griffith-Jones, who appears for Ford, said that if an order for costs were made, he would not seek to have the costs taxed.

The power of the Employment Appeal Tribunal to order costs and expenses is contained Rule 34 of 1993 Employment Appeal Tribunal Rules. That says:

"34.-(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.

(2) Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge."

Mr Griffith-Jones submitted that this was not an appropriate case for costs, because there had not been any action on the part of his client that could be described as unnecessary, vexatious, improper or unreasonable in pursuing the appeal. He submitted that the point raised by Ford on the appeal was an arguable one, that is, whether the taking out of a grievance by the applicants turned an alleged act of discrimination and a decision to reject an application for an appointment into an act extending over a period. This tribunal, he submitted, decided that it did, and therefore no error of law had been shown on the part of the Chairman. He submitted that Ford had legitimate concerns about the point, and that their argument was supported by authority referred to in the judgment, namely the Adekeye case. This, he submitted, was not an untenable position. The position was that Ford were entitled, in the light of the law as they understood it before we gave our decision, to take the view that an allegation of discrimination in the course of a grievance procedure is an essentially different allegation from one relating to an initial rejection of the applications made by the applicants. There was an argument that the Adekeye case would persuade this tribunal to allow the appeal.

He said that it was never part of Ford's case that they were appealing against the exercise of a discretion. It was a point taken about whether the amendment was in relation to matters that were in time or out of time. It was a pure point of law.

We have considered those arguments, but we have unanimously come to conclusion that it was unreasonable for Ford to bring this appeal. We refer, without repeating, to the reasoning in our decision disposing of the appeal. We agree with the submissions by Mr Allen Q.C. on behalf of the applicants. In all the circumstances of this case the appeal was unreasonable. It is relevant to take into account the fact that it was an interlocutory appeal. For reasons explained by this tribunal in a number of decisions of the years, interlocutory appeals are rarely justified and may be visited by an order for costs if they are unsuccessfully brought. It is also relevant to take into account that the effect of bringing this appeal was to force an adjournment of a case which had been listed for a ten day hearing on 6th November 1995. The result of that postponement is that it has not been possible to relist the matter before the Industrial Tribunal until 24th June 1996. Any postponement of a case of that estimated length is a serious matter. Its seriousness is compounded in this case by the fact that this is a long-standing dispute dating back to 1990.

Our view without repeating what we have said in the earlier judgment, is that this appeal never stood a serious chance of succeeding. It is not for us to enquire whether there has been an error of judgment on the part of the advisers or on the part of the client. We look at the appeal objectively. In our view, it was unreasonable to bring it. In those circumstances, we order Ford to pay to the applicants £1,918.19 in respect of the costs of the appeal.