United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS C BRYAN (of Counsel) Brixton Community Law Centre Ltd 506 Brixton Road London SW9 8EN


 


JUDGE PETER CLARK: This is an appeal by the applicant before the London (South) Industrial Tribunal, Mr Kanu, against orders for costs made against him at hearings held on 27th and 28th January and on 24th February 1997.

The background is as follows. The appellant was employed by the second respondent Council, of which the first respondent is Chief Executive, from 21st April 1987 until his dismissal from the post of Occupational Health & Safety Officer effective on 12th December 1995.

On 18th December 1995 he presented an Originating Application to the Industrial Tribunal complaining of "(1) racial discrimination; (2) redundant, (3) grievance." The details of his complaint list various events stretching back to 18th August 1989. The precise nature of his case is unclear from the pleading. The claims are resisted by the respondents.

On 19th July 1996 the case came before an Industrial Tribunal chaired by Mr D N Milton for a preliminary hearing. At that hearing the Milton tribunal allowed the appellant to issue a second Originating Application, which was consolidated with the first; allowed him to proceed with the second application notwithstanding the expiry of the primary limitation period under the Race Relations Act 1976, and gave certain directions for the substantive hearing of the consolidated complaints which were listed for a total period of 15 days, in five day tranches beginning on 27th January, then 24th February and finally 7th April 1997. Those directions included the following:

"(7) The final paginated index either of an agreed bundle (if agreed) or of each parties' bundles is to be prepared by 22 November 1996.

(8) The Applicant undertakes to prepare a written statement to stand as his evidence in chief for the purposes of the hearing. The statement is to be a full statement of the Applicant's whole case set out in numbered paragraphs and in particular, referring in detail to the paginated index and the documents which the Applicant relies on as part of his case. We have no power to order the Applicant to disclose his statement but it would plainly save time if the Respondents had an opportunity to consider his statement in advance of the hearing and we propose that the statement be disclosed by 13 January 1997."

On 27th January the matter came on for hearing before an Industrial Tribunal chaired by Mr John Warren. The appellant appeared in person. The respondents were represented by counsel. Two days of hearing took place to little effect. The appellant, so the tribunal found, had not prepared his case properly. In particular, he had not, so they found, prepared a detailed statement of evidence as described in paragraph (8) of the Milton Tribunal's Order. What he had prepared was a chronological list referring to certain events and a list of all documents which he deemed to be relevant. It could not stand as his evidence-in-chief. He had not chosen to disclose his statement to the respondents prior to the hearing.

Further, he had prepared one copy of a bundle of documents, unpaginated, running to some 600 pages, for the use of the three members of the tribunal. We are told that at the Milton tribunal hearing he was told he need only prepare one copy of the bundle for the tribunal. A further copy had been served on the respondents in advance of the hearing.

The hearing limped to a close on the first day. Overnight, the appellant was directed to prepare three further paginated copies of his bundle for the tribunal's use, and that of the witnesses. He did so.

The hearing resumed the following morning. The appellant reached paragraph 13 of his statement which runs to a total of 123 paragraphs, and then referred to documents which were not before the tribunal. He indicated that he wished to introduce a supplemental bundle, although such bundle had not been prepared.

After struggling for two hours the tribunal gave up. They considered striking out the application, but decided to give him a further chance to get his tackle in order. The hearing was adjourned with further directions given for the future conduct of the case at the resumed hearing due to begin on 24th February. In view of the wasted two days the appellant was ordered to pay £400 towards the respondents' costs on the grounds that his conduct in failing to prepare properly for the tribunal hearing was unreasonable within the meaning of Rule 12 of the Industrial Tribunal Rules of Procedure.

We are told that a further hearing took place on 24th February, when a further costs order was made. There is no written decision with reasons relating to that order. We are therefore not able to deal with that part of the appeal, which is adjourned to be restored when and if the written reasons are promulgated.

Dealing with the first costs order, Miss Bryan submits that the appellant, without the benefit of legal representation from the Free Representation Unit, or the local law centre, which discontinued representation following the hearing before Mr Milton, did his level best to comply with the Milton Tribunal's directions and to prepare his case for hearing. It is a large case and a difficult one for an applicant in person to handle. He should not be judged by the standards of a qualified lawyer. The tribunal's conclusion that he was guilty of unreasonable conduct such as to lead to an award of costs under Rule 12 amounted to an error of law.

We are quite unable to say, at this preliminary hearing, that this appeal raises any arguable point of law. Industrial Tribunals are used to dealing with applicants in person and assisting them so far as is practicable. However, there is an obligation on parties who present their own cases to focus on the issues which they wish to raise. This tribunal, in our judgment, was entitled to conclude that the appellant had not complied with the directions made by Mr Milton and as a result the two days of hearings held on 27th and 28th January were wasted. In these circumstances, we see no grounds in law for interfering with the tribunal's exercise of its discretion in making the costs order on 28th January, and accordingly, this part of the appeal must be dismissed.