United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PITT-PAYNE (of Counsel) Instructed by: Messrs Beynons Solicitors 27 Chancery Lane London WC2A 1NE
For the Respondent	MR A HICKEY (of Counsel)


 


HIS HONOUR JUDGE ANSELL

1. Following the invitation contained in paragraph 19 of our judgment, delivered on 17 March 2003, we have now received from both parties written submissions on the issue of costs. The Respondent invites us to make an Order for costs, pursuant to Rule 34 of the Employment Appeal Tribunal Rules 1993 which provides that we may make an Order for costs if it appears to us that:

"any proceedings were unnecessary, improper or vexatious, or that there has been unreasonable delay or otherwise unreasonable conduct in bringing or conducting the proceedings ….."

2. As is apparent from the lengthy history of this case, which we have reviewed in our Decision, we were unanimously of the view that the issues sought to be raised before us by the Appellants had effectively been determined by this Court on 23 March 1999, in the Decision given by Mr Justice Morison, and confirmed by the Court of Appeal in their refusal to grant leave on 21 May 1999. Those decisions were, in our judgment, clear guidance to the Appellants that having raised the issue of jurisdiction, they should then participate in the merits hearing, which took place on 24 May 1999. Whilst we have explored the issues relating to Article 18 in rather more detail than the Decision in March 1999, our conclusions are the same and thus the Regional Chairman was quite entitled, and indeed compelled, by the history of this case to come to the decision which he did. Prima facie, these proceedings would therefore fall into the category of being unnecessary and/or vexatious.
3. The Appellant reminds us that permission to proceed to a full hearing was granted at a preliminary hearing before His Honour Judge Burke QC, and whilst that is clearly a factor that we should take into consideration, we do not accept that that factor alone would prevent us making an Order for costs, having heard the full appeal. Moreover, there are two matters which we believe were not drawn to Judge Burke's attention which could well have affected the decision given at the preliminary hearing. Firstly, the concession made before us that the Article 18 issue only related to the wrongful dismissal claim and that therefore there was nothing to prevent the Appellants participating in the unfair dismissal proceedings, although they chose not to do so. Secondly, it was the Appellant's choice not to pursue the issue of leave before a full Court, once Lord Justice Mummery had refused leave in May 1999.
4. For these reasons, we make an Order that the Appellants pay the Respondent's costs in the assessed sum of £3,158.50.