United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RYAN KELLY 16 Legard Road Highbury London N5 1DE
For the Respondents	MR MARTYN WEST Instructed By: Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB


 


MR COMMISSIONER HOWELL QC:

1. We have before us a renewed Application by Mr West of Peninsula Business Services on behalf of the Respondents in the original proceedings, Image Creative Limited and Mr Rowan Bayliss, for an order under Rule 34 of The Employment Appeal Tribunal Rules of Procedure for the costs of the Appeal and subsequent proceedings brought by Miss Walton in her Appeal to the Appeal Tribunal No. EAT/1471/00. That Appeal was against the decision of an Employment Tribunal given as long ago as October 2000: we considered and rejected the Appeal, on all points, in a Reserved Judgment delivered on 16 August 2002.
2. An indication had been given before the conclusion of the Hearing and also in much earlier correspondence on behalf of the Respondents that an order for costs would be sought if the Appeal was pursued as it was, and turned out to be unsuccessful, as it was. The initial way we dealt with that was by giving liberty to make an application for costs in writing which Mr West's firm, on behalf of the Respondents, duly did, although Miss Spire who appeared before us on the main Appeal for Miss Walton had clearly indicated her wish to have a further oral hearing should any question of an order for costs against Miss Walton be considered.
3. In view of the relatively small amounts being sought at that stage by Peninsula Business Services on behalf of their clients, we attempted in a second judgment we delivered on 14 January 2003 to dispose of the question of costs by making an order for a relatively small amount against Miss Walton on the basis of the written submissions which we then had the advantage of receiving from both sides on the costs issue. However, that was embodied in a provisional order made subject to liberty to Miss Walton to re-apply for the matter to be restored for full consideration of the entire question of costs at an oral hearing if she so insisted.
4. Miss Walton, following the issue of that Judgment, did so insist and rejected the option of having an immediate order for costs for the relatively small amount which we directed should be £1,000. She and those acting for her insisted on the matter being restored for oral argument and because of the administrative difficulties and various applications that were made in the meantime, it has taken until today for the matter to come on before us for effective final hearing and disposal.
5. Before us today, Mr West, on behalf of the Respondents, repeats his Application for an order for the costs of the original proceedings, limited to the costs incurred from the period after 1 April 2002. That was the date on which the transcripts we referred to in our main judgment had become available to the parties; from which, in Mr West's submission, it should have become apparent to Miss Walton (or at least those advising her) that there was no future in the Appeal because the original allocations of bias and improper conduct against the Chairman who conducted the proceedings were shown, as we said in our January judgment, to have been baseless and unfounded. The remainder of the Appeal consisted simply of an attempt to re-argue in one form or another questions of fact that had already been satisfactorily determined by the Employment Tribunal, so that there was no proper basis at all for pursuing from that point on an appeal to the Appeal Tribunal which is necessarily limited to cases where it can be demonstrated that there is an issue of Law to be resolved.
6. Mr West's application today is therefore for the same amount as previously sought for the costs of the original appeal, £1,757.50 in all for the costs of and incidental to his conduct on behalf of the two Respondents of a hearing lasting about a day and a half and considerable preparation work. In addition, he asks for the further costs of and incidental to the application for costs itself in view of the way it has been dealt with, that is £175 for the cost of and incidental to the written procedure between 20 August 2002 and 16 January 2003 and a further £801 being the costs of and incidental to the oral procedure insisted on by the Appellant, including Mr West's time and disbursements for the period from 18 January 2003 down to and including the conclusion of today's proceedings. That makes at total of £2,733.50 which is now sought as the costs of the appeal from 1 August 2002 until today.
7. We indicated to both parties in the course of argument that we would not adopt an approach dealing with the costs down to the nearest penny, but would consider it in terms of a global sum if we determined it was reasonable to make an award; and both parties before us, Mr West on behalf of Peninsula and Mr Kelly, Miss Walton's partner, who has helpfully attended before us and addressed submissions on her behalf opposing the making of any order, accepted that.
8. So, the questions we have to consider are whether it is right that these proceedings were unreasonably pursued after 1 April 2002 when the truth became apparent from the transcripts of the Tribunal proceedings, and whether, if we are satisfied that they were unreasonably pursued what, if any, order should be made in the exercise of our discretion under Rule 34 of the Employment Appeal Tribunal Rules.
9. On the first question, Mr Kelly argued that it had not been unreasonable to pursue the appeal on the basis of the contentions Miss Walton and her advisors thought it right to proceed with following 1 April 2002. He says that their attempts were all focussed towards arguing the matter on questions of Law and not simply re-opening facts, although, of course, the points they were seeking to argue related, as we found in the main judgment, entirely to questions about the way the Tribunal had, in fact, dealt with the facts at the original Hearing.
10. For the reasons we gave in our judgment of 14 January, we have been satisfied that these were proceedings unreasonably pursued from 1 April 2002 onwards, at least, and we have not been persuaded by Mr Kelly's argument that the mere assertion that what were being argued were concerned with questions of Law, necessarily made it so. For the reasons we have already given in our two earlier judgments, we have not been satisfied that there was any legitimate point of Law remaining after 1 April 2002 that it was proper to pursue by way of an appeal to the Appeal Tribunal. As we said in the first judgment, the answer to all the points put forward on behalf of Miss Walton at the original Appeal Hearing was the same, namely that her appeal amounted to nothing more than an attempt to re-open and re-argue questions of fact that had already been determined entirely properly by the Employment Tribunal. For that reason, we do not see any reason to depart from the view we expressed in paragraph 8 or our judgment of 14 January that this is a case in which the jurisdiction under the cost rule arises because these were appeal proceedings unreasonably conducted in terms of Rule 34, both in the making of the original unfounded allegations against the Chairman which were directly or indirectly responsible for the extended process of the appeal, and in the pursuit throughout (before and after 1 April 2002) of the many grounds on alleged perversity, none of which when held up to the light amounted to more than an attempt to re-argue facts or gave any real ground for an appeal on Law.
11. That leads us on to the question of whether the discretion should in fact be exercised in favour of the Respondents in this case, and again we have concluded that there is no reason on what we have been told today that causes us to depart from the view we expressed about this in paragraph 9 of our judgment of 14 January. Our discretion is to make an order against a party, that is only against Miss Walton herself; and as a matter of general principle, we should not regard the fact that Miss Walton is impecunious (and, as we understand, unhappily still out of work and ill), nor the possibility that it was not only her making the decisions on how the case should be pursued, nor that her advisers may have made mistaken assumptions about the Law or what the facts really were, as reasons against at least some order being considered in the circumstances that face us.
12. We have to take account of the fact that the grounds of resistance advanced before us today are substantially no different from those already put forward on the written application and already considered in detail in the course of that application and rejected by us in the judgment of 14 January. As we have already said, any difficulties in her ability to pay are not a reason against making some award in favour of the Respondents, who have been put to the unreasonable expense of fending off the proceedings. As we also said in paragraph 11 of our earlier judgment, sympathy for her personal difficulties (and Mr Kelly has very properly acknowledged that Mr West has adopted an extremely reasonable attitude on behalf of his clients to those difficulties) does not alter the fact that the unreasonable pursuit of the appeal did put the Respondents to needless expense in having to fend it off, and that there has been further needless expense in having to deal with the extra trouble and delay of these costs proceedings themselves.
13. On that basis, we are satisfied that it is right to make substantially the order that Mr West now asks for. As we said, we propose to approach this in terms of global sums, rather than award to the exact penny the costs and disbursements that Mr West helpfully outlined to us. In all the circumstances we reach the conclusion that the right order to make now is that Miss Walton should pay the Respondents the total sum of £2,500 for the entire costs of the proceedings from 1 April 2002 onwards down to and including today. That takes account of the original £1,757.50 and the further costs incurred after the conclusion of the main proceedings reduced by some £250 from the amount claimed to the sum of £2,500 in all and that is the order we therefore now make.
14. I should have said at the outset that, before proceeding to consider the merits of Mr West's application this morning, we had already considered and rejected a last minute application by Mr Kelly, on Miss Walton's behalf, for these proceedings to be postponed for yet a further period, for reasons which I gave shortly at the time when we dealt with that application.