United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 818_95_2902

Appeal No. EAT/818/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 February 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P DAWSON OBE

MR R N STRAKER

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MR O EKWURU          APPELLANT

LONDON GENERAL BUS COMPANY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Ekwuru, in proceedings against the London General Bus Company, complaining of unfair dismissal and wrongful dismissal. He was employed by the company for eleven days, between 14 February and 25 February 1994. His complaint was that, after that short period of employment, he was dismissed on racial grounds.

The case came before the Industrial Tribunal held at London (South). The first hearing was on 16 August 1994. Mr Ekwuru attended. The Bus Company was represented by a solicitor. The case was adjourned to give Mr Ekwuru an opportunity to seek advice and representation. The date for the adjourned hearing was agreed. There was then a request for postponement on two separate occasions. They were refused. At the hearing on 12 December 1994 the Bus Company's representative turned up but Mr Ekwuru did not. On the application of the Respondent Bus Company, Mr Ekwuru's application was dismissed.

There was an application for costs. The Tribunal found that the Bus Company had been put to considerable cost and inconvenience. They had had to take buses off the road because of the hearing. All the driving instructors had had to attend the hearing to give evidence. The Tribunal made an order under Rule 12(3)(a) that Mr Ekwuru pay £250 costs. Their view was that he had, in conducting the proceedings, acted unreasonably. Mr Ekwuru appealed against that order. He conducted the appeal in person when the case came on as a Preliminary Hearing in this Tribunal on 5 April 1995, before Mr Justice Buckley, Mrs Marsland and Mr Thomas.

We have the transcript of the decision on that day. An order was made dismissing the appeal on the ground that there was no arguable question of law on the appeal. The judgment reads:

"... We have advised Mr Ekwuru that, if he wishes to pursue the matter of costs, that is, if he wishes to argue that he cannot afford those costs or that, the amount was too high in any event, he should apply to the Tribunal to review that order. Ask them to give an opportunity to be heard, or at the very least, to receive written representations from him. He could perhaps, put his arguments or representations in a letter, if he wished to do so. That is something which is up to him to do. We cannot take that any further. All that we can do, and do do, is with respect to the Chairman of the Tribunal, to urge him to consider whether that aspect of the matter should be reviewed. We do not say that, in any way to pre-judge the outcome of that review. But simply to urge the Chairman to consider receiving from Mr Ekwuru any representations on the costs point that, he wishes to make. If that is done, it would then be for the Chairman, of course, or the Tribunal, to make their own decision. It is not for us to impose our will on that, in any way. We would hope that, the Chairman would respond to that suggestion from us. It will now be up to Mr Ekwuru to pursue the matter."

Following that judgment, a letter was written by a firm of solicitors instructed by Mr Ekwuru to the London (South) Tribunal. The letter was dated 12 April 1995. The letter referred to the orders made on 12 December and to the extended reasons sent to the parties on 2 January 1995. The two orders were the dismissal of the application and the order for costs. The letter said that the Tribunal would be aware that Mr Ekwuru had lodged an appeal and informed them that the appeal was dismissed. The letter referred to the advice given by the Appeal Tribunal to Mr Ekwuru to request a review out of time of the costs order. The letter said:

"... We understand that the Registrar to the EAT has informed you of this."...

The letter contains representations on behalf of Mr Ekwuru as to why the order for costs should not have been made in his absence. The letter says this:

"... His argument is that when a Tribunal has an application, (for costs), made to it on one basis, it should hear both parties on that basis. When an order for costs is being considered, the absent party should be informed so as he has the opportunity to make representations as to why such an order should not be made against him, (Freeman -v- Notts CC EAT 84/85).

Our Client would have stated that he had acted in good faith throughout the proceedings, and honestly believed that the proceedings were being improperly conducted. He did not have the benefit of legal advice and meant no disrespect to either the Tribunal nor the Respondents. It was his intention to pursue an interlocutory appeal to the EAT. In the event, he did not do so.

It may well be that even having heard our client's representations, the Industrial Tribunal may have concluded that his conduct was unreasonable, but before making any order as to costs, the Tribunal should have considered his means and ability to meet any order for costs. Mr Ekwuru was, and continues to be, in receipt of Income Support. He simply cannot meet the order for costs. Clearly, the significance of such a sum is overwhelmingly higher for him than for the Respondent Company.

We respectfully ask that the decision to award costs be reviewed both as to the decision itself, or in the alternative, as to quantum."

The letter sets out clearly and concisely Mr Ekwuru's complaint about the order for costs made in his absence.

The Tribunal had jurisdiction to order a review because The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 Rule 11(1)(c) provide that:

"A tribunal shall have power on the application of a party to review ... any of its decisions on the grounds that-

(c) the decision was made in the absence of a party;"

Rule 11(2) goes on to provide, however:

"An application for the purposes of paragraph (1) may be made at the hearing. If the application is not made at the hearing, such application shall be made to the Secretary within 14 days from the date of the entry of a decision in the Register and must be in writing stating the grounds in full."

The application for the review should have been made within 14 days of 2 January 1995. The application for the review in the letter of 12 April 1995 was out of time. That is not the end of the matter, because the Tribunal Chairman has a discretion in Rule 15 to extend the time. It is a general discretion in these terms:

"A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired."

The letter of 12 April was considered by the Chairman who gave her decision in the reasons sent to the parties on 14 June 1995. It is that decision on Mr Ekwuru's application for a review that is the subject of this appeal. The decision of the chairman was that the application for a review under Rule 11 was refused because it was out of time. The Chairman did not grant an extension of time because the Chairman was not satisfied that there were reasonable grounds on which to do so. The reasons for the decision refer to the events already summarised, in particular the circumstances in which the case was heard on 16 August and 12 December 1994; the order made on 12 December and sent on 2 January, and the letter of Mr Ekwuru's solicitors dated 12 April. The reasons also refer to the fact that, before the hearing of the 12 December, a letter was sent out from the Tribunal dated 30 November, reminding Mr Ekwuru that, if his conduct was to continue at the resumed hearing, the Tribunal would consider ordering him to pay costs.

The Tribunal Chairman stated the following in paragraphs 4, 5 and 6:

"4. The Applicant deliberately failed to attend the resumed hearing, because he had made an interlocutory appeal to the Employment Appeal Tribunal.

5. The application is now out of time, and it is the view of the Chairman that the Applicant could have made representations about costs if he wished to do so, within the statutory time limit.

6. The Chairman has considered all of the circumstances of this case, and has decided that an extension of time shall not be granted, because the Chairman is not satisfied that there are reasonable grounds on which to do so."

A Notice of Appeal was served on 25 July. The Notice of Appeal sets out quotations from the judgment of this Tribunal given by Mr Justice Buckley. It sets out the grounds on which the appeal is brought to this Tribunal. The points in the Notice of Appeal are these: first, there was a reference in the review decision to the letter of 12 April, but there was no reference in the review decision at all to the request of the Employment Appeal Tribunal that Mr Ekwuru's application to review the question of the costs order should be given consideration. He submitted that the power of the Industrial Tribunal to admit or reject applications for a review made out of time is contained in the rules.

The decision whether or not to grant an extension of time is within the Chairman's discretion. That is a correct legal proposition. I have already referred to Rule 15. The grounds state:

"3(g) ... the Chairman states his reasons not to admit the application, as being that he "is not satisfied that there are reasonable grounds on which to do so." (....) as "the Applicant could have made representations about costs if he wished to do so, within the statutory time limit."

This statement is criticised, because the Rules do not contain any requirement that the Applicant should demonstrate that compliance with the time limit was not reasonably practicable. It was submitted that Mr Justice Buckley in his judgment of 5 April 1995 had expressed a view that the Tribunal ought to exercise their discretion to extend the time for applying for a review. It was argued that the Chairman had erred in law in not considering the views of the Employment Appeal Tribunal, or, if those views were considered, he should have provided reasons for rejecting them. The failure to exercise the discretion to admit the appeal out of time was so unreasonable that no reasonable Chairman would have exercised the discretion, or failed to exercise the discretion in such a way.

Those grounds were explained and amplified by Mr Ekwuru in his submissions on the Preliminary Hearing of his appeal today. We had to ask ourselves whether the Notice of Appeal contains reasonably arguable questions of law which would justify a full hearing. Mr Ekwuru emphasised these points on his appeal. First, that he was not present when the costs order was made on 12 December 1994; that, in making that costs order, no account was taken of whether he was able to pay the amount; there has never been any consideration of that. He says that there is a ground for applying for a review because Rule 11(1)(c) of The Industrial Tribunals Rules 1993 provides that a ground for review is that a party was absent when the decision was made. On the particular question of the Chairman's exercise of discretion to refuse to extend time, he reminded us of the grounds on which, in judicial review proceedings, the High Court may review a refusal to exercise a discretion. He said, correctly, that the person who has the discretion must not have a closed mind. The person exercising the discretion must listen to all the arguments and take into account all the circumstances, in order to make a legally correct exercise of a discretion. He emphasised that the crucial fact on the order for costs against him is that he simply does not have the money. That is a ground on which the order ought to be reviewed, or, alternatively, the quantum of the order ought to be reviewed.

We have discussed all these points with Mr Ekwuru. We have reached the conclusion that this appeal does not raise any arguably question of law. The conclusion we have reached is this - the Chairman had a discretion whether to extend the time for the review or not. The Chairman exercised the discretion, taking into account all the circumstances, as stated in paragraph 6 of the reasons for the review decision. All the circumstances included all those matters set out in the letter of 12 April, written by Mr Ekwuru's solicitor in support of the review application. That letter refers to everything that could possibly be said in favour of a review, and in favour of an extension of time, including what was said by Mr Justice Buckley in the Employment Appeal Tribunal at the hearing of the appeal in April 1995. In our judgment, it is impossible to say that there is a legal error in the exercise of the discretion. It is a wide discretion. Provided that it is exercised by having regard to all the factors relevant to the exercise, it cannot be legally questioned on this appeal.

Mr Justice Buckley made it clear that, although the Tribunal were urging the Chairman or the Tribunal to reconsider the question of the order for costs, this Appeal Tribunal had no power to tell them that they should do so, or what else they should do. The jurisdiction of this Tribunal is limited to questions of law in Industrial Tribunal decisions. Even if there is an error of law in an Industrial Tribunal decision, this Tribunal has no power to tell the Industrial Tribunal what to do. The most it can do is to remit the case to the Industrial Tribunal, for the Industrial Tribunal (either the same one, or a different one) to re-hear the case. In these circumstances, the Appeal Tribunal were not telling the Chairman what to do. The Chairman was free to exercise her discretion. She did so by reference to all the circumstances. There is no error in the decision. The appeal will be dismissed.