United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance by or on behalf of the Appellant
For the Respondent	No appearance by or on behalf of the Respondents


 


HIS HONOUR JUDGE PETER CLARK

1. On 16 January 2003 we dismissed this appeal, brought by Mr Denteh against a decision of the London (South) Employment Tribunal, chaired by Ms C Hyde and promulgated with Extended Reasons on 29 June 2000. The history of these appeal proceedings and the nature of the appeal appears from the judgment handed down on 16 January.
2. Thereafter, by letter dated 29 January 2003, the Respondents to the appeal applied for their costs in the appeal. The Respondents' case has been conducted by the first Respondent, the Commissioner of Police for the Metropolis' in-house Legal Services Directorate. Attached to that letter is a Schedule of Costs totalling £6,541.05.
3. Initially the costs application was listed for a hearing in the absence of consent by both parties to the matter being dealt with on paper in the interests of saving further costs. However, the Respondents having earlier indicated their consent to a determination on paper, Mr Denteh finally also agreed to that course in a telephone call to the EAT case handler, Mr Arbuckle, on 9 July 2003. In these circumstances the hearing then fixed for 16 July was vacated but today this same division sat to hear a different matter and also took the opportunity to consider and determine the present application.
4. Costs do not follow the event in this Tribunal. Our power to order costs is circumscribed by Rule 34 of the Employment Appeal Tribunal Rules 2001 which provides, so far as is material:

34 (1) "Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been…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…incurred by that other party in connection with the proceedings."

5. Conscious of those parameters, the Respondents, by their application dated 29 January 2003, put the matter in a number of ways. First, that the whole proceedings were unnecessary as, in the event we concluded following the bilateral Preliminary Hearing held on 2 December 2002, the appeal raised no arguable point of law. It was based on allegations of misconduct by the Hyde Tribunal and, by complicity, the Respondents and their legal advisers. The principal allegation, that the Tribunal had received evidence in the absence of the Appellant, was withdrawn at the final hearing. It is submitted that the appeal proceedings were used improperly as a vehicle for Mr Denteh to pursue scandalous allegations of forgery and conspiracy against the Respondents and their lawyers. The appeal, being devoid of merit, was calculated to harass and vex the Respondents. The whole of the Respondents' costs incurred in defending the appeal are now claimed.
6. Mr Denteh has responded by way of written representations dated 16 February and 1 July 2003. His submissions may be summarised in this way:

(1) The appeal never passed the Preliminary Hearing stage. Normally the Respondents would not be required to attend and take part in a Preliminary Hearing. It was only because they were required by the EAT that they did so. Even then their witnesses were only required for cross-examination on a single issue.

(2) It is for the EAT to decide whether the appeal has merit, not the Respondents.

(3) The Respondents have yet to disprove the allegations which he makes of forgery.

(4) The Appellant is not in a position financially to pay any costs as he made clear to the Respondents.

7. Our conclusions on the rival contentions may be stated as follows:

(1) It is correct to say that normally a Respondent will not be put to the expense of defending an appeal until it is directed that it should proceed to a full hearing with both parties present.

(2) However, where allegations of bias or improper conduct on the part of the Employment Tribunal are raised and a dispute arises as to what happened before that Tribunal, it may be necessary to direct that witnesses drawn from the parties be called before the EAT and cross-examined so that that issue may be resolved. Facey v Midas Retail Security [2000] IRLR 812, paragraph 39, per Lindsay P.

(3) That is what happened in the present case. It was only as a result of Mr Denteh's allegations of misconduct, set out on affidavit and disputed both by the Employment Tribunal and the Respondents, that a bilateral Preliminary Hearing was inevitable.

(4) In the event, we found those allegations to be unfounded. Given the concession made on the Appellant's behalf at the commencement of the final hearing held on 2 December last (Judgment, paragraph 12) and the further issues raised on the Respondents' affidavits and the Chairman's comments, it seems to us that, leaning in favour of the Appellant, even if the appeal was properly brought and was not designed to vex the Respondents, once the whole of the evidence was produced in documentary form it ought to have been clear to the Appellant that this appeal had no real prospect of success and that the Respondent would be put to the expense of attending the final hearing.

(5) In these circumstances we have concluded that the final hearing held on 9 December 2002 was unnecessary. The Respondents are entitled to their reasonable costs incurred in attending that hearing.

(6) Although given the opportunity to comment on the itemised bill of costs submitted by the Respondents, the Appellant has failed to do so. Nevertheless, having been invited by the Respondents' solicitors in their letter of 7 July (paragraph 6) to summarily assess the costs which in our judgment are properly recoverable we shall do so. We allow the following items in the following sums:

Brief to Counsel	£375
Counsel's
Skeleton Argument	£210
Preparation for Hearing	£140
Attendance	£280
Solicitors Attendance	£440
	________
Total	£1,445

It will be seen that we have reduced the hourly rate for solicitors' attendance from £250 per hour to £110 per hour, which we think is a reasonable charge, given that counsel's rate is a modest £70 per hour.

(7) Finally, the Appellant's plea of impecuniosity. Applying the Court of Appeal's approach in Kovacs v Queen Mary & Westfield College [2002] ICR 919, we shall not take into account the Appellant's means in determining this application.

8. It follows that we shall order the Appellant to pay the Respondents' costs in the sum of £1,445 within 14 days of the sealed date of our order.