United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS J BROWN (of Counsel) Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE
For the Respondents	MR J HAND QC Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB


 


JUDGE PETER CLARK: This is an appeal by Mr Benson and two other applicants before the Southampton Industrial Tribunal sitting on 7th and 8th November 1996 against that tribunal's decision to dismiss their complaints of unfair dismissal brought against (1) Ballast Wiltshier Plc and (2) N G Bailey & Co Ltd ["NGB"]. Extended reasons for that decision are dated 27th January 1997.

By that same decision the tribunal upheld their complaints of unfair dismissal against a third respondent, Dodd Group (Midland) Ltd ["DGM"]. A remedies hearing was adjourned pending possible settlement between the appellants and DGM.

On 6th March 1997 the appellants appealed against the tribunal's decision of 27th January 1997 (EAT/379/97). On the same date DGM also appealed against that decision in so far as they were held to have unfairly dismissed the applicants (EAT/378/97).

On 4th April 1997 a Chairman sitting at Southampton promulgated this decision in the successful complaints by the applicants against DGM:

"Without prejudice to the right of either the applicants or the respondents to appeal on liability, these applications are dismissed on withdrawal by the applicants on settlement."

The appellants have now withdrawn appeal EAT/379/97. Notice of withdrawal was given to NGB on 2nd December 1997 and to this tribunal on 4th December.

The Employment Appeal Tribunal has nevertheless sat today in order to hear an application by Mr Hand QC for NGB's costs in the appeal, either in whole or in part. That application is opposed by Ms Brown on behalf of the appellants.

We begin with the relevant rule to be found in r. 34(1) of the Employment Appeal Tribunal Rules 1993:

"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."

Mr Hand seeks to bring this application within the scope of unreasonable delay.

He submits that a number of opportunities have arisen since the Notice of Appeal in this appeal, EAT/379/97, was served on 6th March 1997 for the appellants to take stock, and to withdraw this appeal in sufficient time to obviate the need for NGB to instruct leading Counsel to prepare a skeleton argument and to be briefed to appear at this hearing. First, at the time of the compromise agreement between the appellants and DGM on 4th April 1997. Secondly, when NGB's original answer was lodged with this tribunal on 22nd May 1997, relying then on the recent judgments of the European Court of Justice in Suzen and the Court of Appeal in Betts v Brintel; again when an amended answer settled by Mr Hand was lodged with an application for leave on 14th July 1997, and again when that opposed application was granted by the Registrar on 20th August 1997. Instead, no action was taken to withdraw the appeal until after the time when Counsel had been properly instructed to prepare for this hearing.

The answer to the costs application by Ms Brown is this; on 19th November DGM informed the appellants' solicitors that their appeal, EAT/378/97, was withdrawn. Notification was received from the Employment Appeal Tribunal on 24th November. The position is that the DGM appeal was awaiting the outcome of the instant appeal. However, DGM having withdrawn their appeal and agreed to pay compensation to the appellants, a commercial decision was taken by those advising these appellants that it would not be worth pursuing the instant appeal against NGB for higher compensation than had been agreed in principle with DGM, which at best would result in the matter being remitted to a fresh Industrial Tribunal for rehearing. Accordingly instructions were taken by the appellants' solicitors, and when the last appellant replied on 2nd December giving his authority for the appeal to withdrawn, they promptly informed NGB's solicitors on that day that this appeal was withdrawn.

We have considerable sympathy with the position in which NGB find themselves today. On the face of it this is a late withdrawal which has resulted in wasted costs of preparation to resist the appeal.

However, we have to ask ourselves whether the delay in withdrawing the appeal is unreasonable, and whether the conduct of the appellants of their advisers is otherwise to be regarded as unreasonable.

We do not think that it is. In the particular circumstances of this case the two appeals EAT/378/97 and EAT/379/97 are inextricably linked. As soon as DGM, against which party no order for costs is sought by Mr Hand, withdrew their appeal, those advising these appellants took a sensible view of the overall merits of proceeding with this appeal, and in our view acted responsibly in notifying NGB of their clients' collective decision to withdraw this appeal.

Mr Hand was unable to say with complete confidence that had the appeal proceeded to a full hearing; first, that it would inevitably fail; and secondly, whether or not it did that costs would be awarded in his favour. In these circumstances we think it would be wrong to penalise a party for acting responsibly in giving notice of withdrawal, instead of arguing the appeal simply in order to avoid a costs order.

In these circumstances we shall dismiss the costs application.