United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Messrs Orchard Solicitors 1 Angel Court London EC2R 7HJ
For the Respondent	S Aktar Commission for Racial Equality Alpha Tower (11th Floor) Suffolk Street Queensway Birmingham B1 1TT


 


MR JUSTICE LINDSAY: On the 29th November 1996 we heard an appeal by the Appellant, London Borough of Brent ["Brent"] against the decision of the Industrial Tribunal under the Chairmanship of Mrs B.A. Calvert Q.C. promulgated on the 12th January 1995. The Appellant's argument took the whole day and at the end of it we indicated orally that we need not call upon Counsel for the Respondent, Mrs Shyamala Philip, an erstwhile employee of Brent, and that the appeal was dismissed for reasons to be given later in writing. At that point Miss Monaghan of Counsel, instructed by Mrs Philip, asked that the Respondent should be awarded the costs of the appeal and she directed us to the relevant EAT rules on and around the subject and made submissions as to costs. We then indicated orally that the Appellant was to pay the Respondent's costs of the appeal, such costs to be taxed if not agreed. The matter was then adjourned to await the handing down of our written reasons.

On the 17th December 1996, in the presence of Counsel for the Appellant (but not of Mr Paul Stewart, Counsel who had conducted the appeal on Brent's behalf on the 29th November) we handed down our written reasons which, at their foot said:-

"As we indicated at the end of the hearing, we order that Mrs Philip's costs of and incidental to the appeal, (taxed, if not agreed, on a standard basis) [were] to be paid by Brent."

Counsel for the Appellant on the 17th December asserted that, contrary to proper practice, the oral order for costs on the 29th November as repeated in our written Reasons had been made without Counsel for the Appellant, Mr Stewart, being called upon to address the subject of costs. We had at no stage stopped Mr Stewart from addressing the subject of costs nor had we declined to hear from him on costs, nor encouraged him not to address the subject and he was at all material times present before us, instructed by the Appellant. Nonetheless, it was the case that we (who, we recollect, had difficulty getting Mr Stewart to his feet at the end of the case) had not expressly called upon him to address costs. Speaking for myself, I expect (although I have no direct recollection) that I took the fact that he did not rise to address us on costs after Miss Monaghan's submissions on the subject that he had nothing he wished to say on the subject. However, when, on the 17th December, it became plain that that had not been so, it seemed to us that it would be unjust not to regard the order for costs as orally indicated and as repeated in our written Reasons as being otherwise than still open to review (not, by that, meaning subject only to possible review under EAT Rule 33 but, more widely, as being capable of being reconsidered in the events that had happened and, if thought fit, revoked or amended).

Accordingly we directed that the parties should address argument to us on the subject of costs and, given that the three of us who had made up the constitution of the Court that had heard the appeal were going off in different directions, it seemed to us that the convenient course was that those arguments should be addressed to us in writing. We have accordingly now received full argument for and against an order for costs from the parties.

By Rule 34 it is a necessary requisite for an order for costs, as Mr Stewart's written argument on costs reminds us (but as we undoubtedly had in mind on 29th November and later) that it should have appeared to the Appeal Tribunal that "Any proceedings were unnecessary, improper or vexatious or that there had been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings". However, Mr Stewart goes on to argue that "Of the grounds put before the Appeal Tribunal in support of the application for costs, only one might be said to invoke the grounds for making an order for costs under Rule 34, that being that the appeal was unreasonably brought in that it might be seen from the start that it was hopeless". We do not see that as the only relevant ground; we see the words "Unreasonable delay or other unreasonable conduct in ... conducting the proceedings" as entitling us to look more generally at the way in which the Appellant conducted this appeal and the manner in which it complied or failed to comply with practice directions or other requirements of acceptable practice in relation to the conduct of appeals.

As to that, the appeal, which was at that time as between Brent, represented by experienced Solicitors, and an unrepresented Respondent, was originally listed for hearing on the 9th October 1996 but, by the 8th October (when it was adjourned on, inter alia, the ground of Mrs Philip's ill-health) the Appellant had still not lodged with the EAT nor had served on the Respondent a Skeleton Argument or Chronology or bundle of documents for use at the hearing.

The hearing was then relisted for the 29th November and in the interval the Commission for Racial Equality took up the case on Mrs Philip's behalf. On the 18th November the Respondent lodged her Skeleton with the EAT but the Appellant could not then exchange one as its Skeleton was not then ready. There was no exchange of Skeletons between the parties until the 20th November but, even then, there was no Chronology served on the Respondent and the EAT was not served with the Appellant's Skeleton.

It then transpired that the Appellant wished, late in the day, to amend its Grounds of Appeal. No list of Appellant's authorities was served on the EAT or on the Respondent's solicitors and the EAT received no Skeleton of the Appellant's arguments until the very morning of the hearing, shortly before the hearing began.

Miss Monaghan draws attention to a Practice Direction that provides that failure to follow the specified procedures as to Skeleton Arguments and Chronologies "May lead to an adjournment of an appeal or even to dismissal for non-compliance with the practice direction". Happily, we were able to avoid all but a brief adjournment of the appeal (to copy the Appellant's lately supplied Chronology and to make arrangements for supply of the authorities to be relied on by Brent to be made available to the Tribunal). For us to have dismissed the appeal for non-compliance with the practice direction would have been, in our view, far too draconian a response to the Appellant's shortcomings. Nonetheless, this is an exceptionally busy Court and it depends for its smooth running upon compliance with Practice Directions; that of course, is why they are made. With that in mind we felt able, on the 29th November, to see the matter as one in which the Appellant's conduct of the proceedings had been at stages unreasonable. Moreover, whilst, unless we have to, we would prefer to avoid characterising Brent's arguments as hopeless, it is to be remembered we were addressed the whole day and yet did not need even to call on the Respondent. All in all, we saw it as appropriate also to mark the case with an order for costs of the kind that I have mentioned. Having now considered at length the arguments submitted to us in writing by both the Appellant and the Respondent we are of the same view as we were on the 29th November; we take the view, if we have jurisdiction so to order that the appropriate order for costs is as we indicated orally on the 29th November and as we reiterated on the 17th December. As for jurisdiction, in their submissions as to costs Brent argues, on the basis of Walsall Metropolitan Borough Council v Sidhu [1980] ICR 519 that we may have no jurisdiction to make the order for costs we have just described. In the Walsall case the successful individual respondent in the Employment Appeal Tribunal, who had been given assistance by the CRE, had herself incurred no costs, whereas the CRE, on her behalf, had. As the jurisdiction under the Rule was only that a payor could be obliged to pay costs and expenses "incurred by that other party", it followed upon the respondent having incurred nothing, that she could be paid nothing. But we have no evidence whatsoever that Mrs Philip incurred no costs and expenses and it is to be noted that in our case the CRE did not represent Mrs Philip until after the hearing of 9th October 1996. Nor do we know anything of whatever arrangements were made between Mrs Philip and the CRE as to costs. So long as the expression "the Respondent's costs of and incidental to the appeal" is limited, as it naturally will be, to costs and expenses properly regarded as incurred by her, a matter for the taxing authority. we see nothing at all in Walsall (supra) to disable us from making the order we have indicated to be in our minds to make. Accordingly our order is that the Respondent's costs of and incidental to the appeal (including the costs of and incidental to this review or re-assessment), to be taxed if not agreed on the standard basis, are to be paid by the Appellant. Whether, strictly speaking, this decision is arrived at by way of review properly-so-called or by way of some more general correction of the earlier omission seems to us a point which it is immaterial to address.