United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	No appearance or representation by or on behalf of the Appellants
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


JUDGE WILKIE QC

1. This judgment concerns an application by Ms J Wright, the Respondent to the appeal, for costs in circumstances where the Appellants have withdrawn their appeal by a letter of 10 October 2001, the appeal being listed for hearing on 7 November 2001.
2. Neither party attended on 7 November when the case was listed for hearing on the matter of costs. Ms Wright's solicitors furnished a Skeleton Argument in support of their application, and Davisons indicated that they wished to rely on submissions with which they had furnished the Tribunal, dated 22 October 2001.
3. Ms Wright made a claim against Davisons for damages for breach of contract. Her application was heard by the Employment Tribunal at Birmingham on 18 October 1999 and 14 January 2000. It decided, unanimously, that she had been dismissed in breach of contract and ordered payment in the sum of £9,127.64 by way of damages for breach of contract.
4. On 3 March 2000, the Appellants sent a Notice of Appeal to the Birmingham Employment Tribunal. It raised various issues concerning the quantum of the award, rather than the primary finding of breach of contract. On 6 March, Ms Wright's solicitors wrote to the Appellants putting them on notice that if they were successful at the Employment Appeal Tribunal they would be seeking costs.
5. The appeal of the Appellant had, of course, been sent to the wrong Tribunal. By the time they got round to sending it to the Employment Appeal Tribunal, they were thirty days outside the time limit. On 7 April 2000, Davisons sought an extension of time for lodging the appeal, relying on the fact that the secretary for the fee earner, who had prepared the Notice of Appeal, had been misinformed by the Employment Tribunal in Birmingham that the appeal Notice should be sent to Birmingham. On 27 April, the EAT sent Ms Wright's solicitors a letter enclosing the letter from Davisons, dated 7 April, asking them for their comments on the Appellants' application for an extension of time. On 9 May, the Respondent's solicitors wrote to the EAT resisting the application for extension of time and, following a further exchange of correspondence between the EAT and the Appellants, the Registrar to the EAT refused the application for extension of time by Order dated 22 May 2000.
6. The Appellants then appealed against this refusal of extension of time to the President of the Tribunal, which resulted in a Decision on 13 October 2000 that the appeal be adjourned with liberty to restore. On 17 January 2001, the Appellants sent two affidavits to the Employment Appeal Tribunal and on 26 April 2001 the Respondent's solicitors submitted their Skeleton Argument in respect of the hearing of the Appellants' appeal against refusal to extend time. That hearing took place on 8 May 2001 and resulted in the Appellants being given leave to enter a Notice of Appeal out of time, time being extended to 7 April 2000.
7. Thereafter, on 18 July 2001 the matter was listed for a preliminary hearing of the appeal to take place on 7 November 2001. In the light of the matters raised in the Notice of Appeal, the Appellants had provided an affidavit which was sent to the Chairman of the Employment Tribunal and his comments were sent to the parties on 11 July 2001. The EAT then received letters from the Appellants dated 20 August 2001 and 21 September 2001, and on 2 October 2001 the EAT wrote to Ms Wright's solicitors inviting them to comment on the Appellants' letters. Before any comments on those letters could be finalised and sent to the EAT, the Appellants, by letter of 10 October 2001, withdrew the appeal. The letter withdrawing the appeal referred to their having taken Counsel's advice. The fuller letter dated 22 October indicates that the reason for withdrawing the appeal was that although they had been advised that the prospects of success remained good, bearing in mind the issue of costs, it now appeared less viable on a commercial basis to pursue the appeal, and accordingly the appeal was withdrawn.
8. The Respondent's costs are said by her solicitors to be £3,250 plus VAT, calculated on the basis that the solicitors had spent a total of twenty seven hours on the appeal, charged at the rate of £130 per hour, plus VAT. They have broken down those figures in their Skeleton Argument so that two hours were spent initially advising on the appeal and corresponding with the EAT and the Appellants; eighteen hours were spent in connection with the Appellants' late submission of their Notice of Appeal, including correspondence with the EAT advising the Respondent, perusing the Appellants' affidavits, drafting the Respondent's Skeleton Argument for use at the hearing on 8 May 2001, studying the Appellants' Skeleton Argument for use at that hearing, and advising the Respondent of the outcome of that hearing; and, following the decision to allow the Appellants an extension of time, five hours having been spent preparing for the preliminary hearing and the application for costs, including advising the Respondent, studying the comments of the Chairman of the Employment Tribunal, and corresponding with the Employment Appeal Tribunal.
9. The power of this Tribunal to award costs is contained in the Employment Appeal Tribunal Rules 1993, Rule 34(1) of which provides that the Tribunal may order a party at fault to pay another party's costs if it appears that:

" any proceedings were unnecessary or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings".

In our judgment, the mere fact that an appellant withdraws an appeal some four weeks prior to the preliminary hearing, cannot be regarded as, of itself, bringing into play the Tribunal's power to award costs. The position is, however, different where the appeal has been launched out of time, an application has had to be made for extension of time, that application has been refused by the Registrar but has been granted by the President of the Tribunal, and as a consequence the Respondent to the appeal has been put to costs in considering its attitude towards that application and in responding to it. In this case, the President on the material which was before him on 8 May 2001 concluded that the Appellants were misled by the Employment Tribunal as to the initial recipient for a Notice of Appeal. He concluded that he had no reason to think that Davisons would have been out of time if they had been properly directed, whereas they had been misdirected. In the light of his findings it is not now open to us to conclude that the launching of the appeal out of time constituted unreasonable conduct on the part of Davisons. Accordingly, although the position in other jurisdictions may be that a party obtaining leave for the extension of time should pay the costs thrown away by the need for the other side to respond to such application, in this jurisdiction with our limited powers to award costs, no such Order should be made.