United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NEITHER PRESENT NOR REPRESENTED.
For the Respondent	MR K CADOO Representative.


 


HIS HONOUR JUDGE CLARK:

1. This full appeal hearing first came on before this division on 16 September 1999. It was not possible to complete the hearing on that day and the matter was adjourned with directions given for further material to be placed before the Tribunal. On 25 January 2000 a Notice of Hearing was sent to the parties, giving today's date as the date for the resumed hearing. This morning at 9.50am the Associate dealing with this case received a telephone call from the Appellant, Mr Williams, in which Mr Williams said that he wanted his case to be cancelled. He believed that it was to be heard tomorrow, 9 May. When told that the case was going ahead today at 10.30 he said that due to financial and personal circumstances, he wanted to withdraw his appeal and he would not be attending today. He indicated that he would fax a letter to the Tribunal to that effect and a fax has been received, in which he says that :

"Due to a number of personal problems, he would be unable to attend the hearing today and that he had in all the circumstances, decided that he would no longer pursue his claim of racial discrimination against the Respondent, Southside Partnership."

2. In the course of that letter he indicates that he continues to be unemployed and has been unable to gain employment in his chosen field of work. Mr Cadoo has appeared on behalf of the Respondent today. He asked for the Respondents costs in the appeal under the provisions of rule 34 (1) of the Employment Appeal Tribunal rules. He puts his application on a number of levels. First and foremost he submits that it is at the very least unreasonable conduct on the part of the Appellant to leave it until this morning to withdraw his appeal. But he goes further and submits that, following the last hearing; the Appellant was required to produce certain material, in particular a Psychiatrist's letter; referred to in submissions on the last occasion and has failed to do so. Further Mr Cadoo submits that two further submissions made on the last occasion, in relation to a written application for an adjournment before the Employment Tribunal by the Appellant's then representative Ms Jones and in relation to certain statements from clients of the Respondent, which the Appellant through counsel on the last occasion submitted were not before the Employment Tribunal, whereas evidence has been put before us to the effect that they were, all indicate that this appeal is without merit, unnecessary and pursued in bad faith. He therefore invites us to make an order for the whole of the cost of the appeal.
3. We are not satisfied that Mr Cadoo has made out his case that it was unreasonable or unnecessary for the Appellant to pursue his appeal in circumstances where he was permitted to proceed at the preliminary hearing before a division presided over by Judge Altman sitting on 17 December 1998.
4. We do however, accept that it was unreasonable for the Appellant to wait until this morning before withdrawing his appeal. Therefore primafacie, it is open to us to make an order for costs. That lies within our discretion and one factor, which we feel, obliged to take into account in the exercise for that discretion, relates to the means of the Appellant. Mr Cadoo invites us to disregard the Appellants assertion that he is presently unemployed, although no evidence has been put before us to contradict that assertion. It seems to us, bearing in mind the information which we have as to the Appellant's means, that is that he is unemployed and suffering financial difficulties, on balance, we should not make an order for costs, which we anticipate would be unlikely to be executed. In these circumstances, we shall dismiss the Respondents application for costs and the only order we make is that the appeal is dismissed on withdrawal.