United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS C D'SOUZA Counsel Instructed by: Messrs Knowles Benning (Solicitors) 24 West Street Dunstable Bedfordshire LU6 1SN
For the Respondent	MR G PRITCHARD Counsel Instructed by: Ms C George Assistant Company Solicitor Hartwell Services Ltd Seacourt Tower West Way Oxford OX2 0JG


 


MR JUSTICE MORISON: The purpose of this Directions Hearing was to seek to implement the Order which was made by the Employment Appeal Tribunal following the Preliminary Hearing on 23rd November 1998. At that time, Counsel on behalf of the Appellant, had indicated that it would be helpful if the factual matters alleged in the Notice of Appeal could be agreed to by the Respondents. Alternatively, there would have to be an application for the Chairman's notes of evidence for which liberty to apply was given. There was some attempt to secure agreement on what was contained in the relevant paragraphs. The Employers put forward their own position accepting, in part, what was said but treating other parts as being tendentious. It might be said that they didn't put forward an alternative draft for those bits to which they took exception, and eventually, the matter came before me. On behalf of the company, the Respondents to the appeal, Mr Pritchard asked for costs. The outcome of this appeal has been that agreement has been arrived at between the parties as to what the amendment should be to the Notice of Appeal and I have given leave to amend accordingly on the assumption that the document which is produced by Miss D'Souza on behalf of the Appellant is submitted to Mr Pritchard for his approval and signature.

Mr Pritchard says that there are three reasons why there has been unreasonable conduct. First, there was nothing in the PHD form signed by the Appellant indicating that notes of evidence would be sought. I consider that to be a forceful submission. The whole purpose of the PHD system is to avoid interlocutory applications of this sort and in general terms, if a party fails to ask for something which they then subsequently discover that they need, then almost certainly, they will be required to pay costs of the unnecessary application. But in this particular case, it appears that the Employment Appeal Tribunal, regardless of the fact that there is nothing in the PHD form calling for notes of evidence, was prepared to contemplate the ordering of notes of evidence and it seems to me unreasonable, in those circumstances, to categorise the Appellant's conduct as being unreasonable merely because they did not include within their PHD form an application for notes of evidence or an indication that notes would be required.

Secondly, Mr Pritchard says that there were no proper attempts in December of 1998 to bring the matter to fruition. After the Respondents had written their letter there appears to be no real further attempt to seek agreement. In relation to that, it seems to me that if I have to use the word "fault" one could say there was fault on both sides and I don't regard the failure to drive the matter forward, which would no doubt have been desirable, as so unreasonable as to attract an Order for Costs.

The third ground which he relied upon was more recent. He says that he has attempted to have Counsel contact with Miss D'Souza. He says that such contact, when it took place at the Employment Appeal Tribunal this morning, produced agreement and readily produced agreement between the parties. If the contact had taken place earlier it would have been unnecessary to have this Hearing. And in any event, what has been agreed is effectively, no more than a recitation of what the decision of the Employment Tribunal itself reads. I don't regard that as an indication of unreasonable conduct on the part of the Appellant. There are all sorts of reasons why, for one reason or another, Counsel contact does not mature into a meeting or an exchange of views which are going to bring the matter to fruition and on the whole, it is undesirable to enquire too closely into the nature of the contacts, whether attempts were made to send drafts by fax and so forth.

He also points out, and I think justifiably, that it would have been helpful if the Appellant had provided a skeleton argument for the purposes of this Hearing because that might have provided the basis upon which an agreement could have been reached. But I don't, in the circumstances, consider, taking everything into account, that the conduct has been so unreasonable as to justify the making of an Order for Costs. I do not take into account, in the exercise of my discretion, the fact that the Appellant is a legally aided party. For this purpose, he is to be treated in exactly the same position as somebody who has means, and if I had thought it appropriate, I would have made an Order for Costs despite the fact that the Plaintiff has legal aid. I am told that he also has a nil contribution. Again, that wouldn't have made any difference to the Order that was made. In each case, it would have been an Order that the legally aided party bear the costs with a requirement that that Order was not to be enforced without leave of the Court. But as I say, I am not prepared to make an Order in this case having regard to the relevant considerations which apply to the exercise of my discretion.