Title: Appeal No.
Author: CNASH
Last saved by: viky.martzoukou
Company: Employment Tribunal Service

Appeal No. UKEAT/0093/07/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 October 2007

Before
THE HONOURABLE MR JUSTICE BEATSON
MR C EDWARDS
MISS S M WILSON CBE

HIGHVOGUE LIMITED AND MR N MORRIS	APPELLANTS

MISS T K DAVIES	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants

MR J G MENDUS-EDWARDS
(of Counsel)
Instructed by:
Messrs Alan Roberts & Co Solicitors
Unit S6a
Chester Enterprise Centre
Hoole Bridge
Chester CH2 3NE

For the Respondent

MR P GREATOREX
(of Counsel)
Instructed by:
Messrs Richard C Hall & Partners Solicitors
Red Hill House
Hope Street
Saltney
Chester CH4 8BU

SUMMARY
Practice and Procedure - Costs
Inadequate witness statements, non-disclosure of relevant documents and refusal to desist from repetitive, unnecessarily lengthy and irrelevant cross-examination. Appeal against wasted costs order dismissed. 

THE HONOURABLE MR JUSTICE BEATSON

1.	This is an appeal from a wasted costs order made by the Employment Tribunal sitting at Abergele on 24 April and 22 May 2006.  The order was made in favour of the Claimant Miss T K Davies against Alan Roberts & Co, a firm of solicitors.  

2.	The wasted costs proceedings arose as a result of the alleged conduct by Alan Roberts & Co of the defence by Highvogue Ltd and Mr N Morris of the Claimant’s successful claim in the Tribunal for sex discrimination, unfair dismissal and unlawful deduction of pay.  The substantive claim was heard by the Tribunal on 2 and 3 June and 9, 10 and 11 November 2005.  In a letter dated 11 April 2006 to Alan Roberts & Co the Claimant made an application that the firm be liable for the costs. That letter set out the basis of its application.  Alan Roberts & Co’s response is in a letter dated 18 April 2006.  

3.	The relevant provision is Regulation 48 of Schedule 1 to the Employment Tribunal Constitution and Rules Regulations 2004 SI 2004 No. 1861. It provides:

“48 Personal liability of representatives for costs
	(1) A tribunal or chairman may make a wasted costs order against a party’s representative.
	(2) In a wasted costs order the tribunal or chairman may-
(a) disallow, or order the representative of a party to meet the whole or part of any wasted costs of any party, including an order that the representative repay to his client any costs which have already been paid; and
(b) order the representative to pay to the Secretary of State, in whole or in part, any allowances (other than allowances paid to members of tribunals) paid by the Secretary of State under section 5(2) or (3) of the Employment Tribunals Act to any person for the purposes of, or in connection with, that person’s attendance a the tribunal by reason of the representative’s conduct of the proceedings.
	(3) “Wasted costs” means any costs incurred by a party-
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any representative; or
(b) which, in the light of any such act or omission occurring after they were incurred, the tribunal considers it reasonable to expect that party to pay.
	(4) In this rule “representative” means a party’s legal or other representative or an employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to those proceedings.  A person is considered to be acting in pursuit of profit if he is acting on a conditional fee arrangement.
	(5) A wasted costs order may be made in favour of a party whether or not that party is legally represented and such an order may also be made in favour of a representative’s own client.  A wasted costs order may not be made against a representative where that representative is an employee is an employee of a party.
	(6) Before making a wasted costs order, the tribunal or chairman shall give the representative a reasonable opportunity to make oral or written representations as to reasons why such an order should not be made.  [The tribunal or chairman may also have regard to the representative’s ability to pay] when considering whether it shall make a wasted costs order or how much that order should be.
	(7) When a tribunal or chairman makes a wasted costs order, it must specify in the order the amount to be disallowed or paid.
	(8) The Secretary shall inform the representative’s client in writing-
	(a) of any proceedings under this rule; or
	(b) of any order made under this rule against the party’s representative.
	(9) Where a tribunal or chairman makes a wasted costs order it or he shall provide written reasons for doing so if a request is made for written reasons within 14 days of the date of the wasted costs order.  This 14 day time limit may not be extended under rule 10.  The Secretary shall send a copy of the written reasons to all parties to the proceedings.”

4.	On 24 April 2006 the Tribunal heard oral submissions as to the costs application.  Documents were submitted on behalf of Alan Roberts & Co and submissions were made by counsel on behalf of both parties. The Tribunal also took into account the proceedings in the substantive application. There was no additional evidence before it.  Before dealing with the alleged inadequacies, we observe that the Tribunal stated, at paragraph 27, that:

“The Respondents were fully entitled to defend the claim as they did and we cannot say that it was a completely misconceived defence.  However contentions and lines of defence were put forward which had no reasonable prospect of success.  These were the attacks on the Claimant’s character and conduct and putting forward the statutory defence with no supporting evidence and very late in the day”.  

At paragraph 28 the Tribunal concluded that those matters should not be laid at the door of the Respondents themselves.  It stated that it was clear from the evidence given by Mr and Mrs Morris, the principals in the Respondent company, that they are straight talking people who gave their evidence to the Tribunal in an open manner.  The Tribunal did not believe that either was responsible for the lines of defence advanced at the Tribunal.  The Tribunal states:
“They relied on Mr Robert’s advice and professional ability to guide them on how the case should be conducted.”

5.	Mr Mendus-Edwards appeared on behalf of Mr Roberts. At the core of the appeal is his submission that, in respect of the various alleged inadequacies considered, the Tribunal did not have evidence or did not make findings to show that the inadequacies were the responsibility of Mr Roberts or of his firm as opposed to the responsibility of Highvogue Ltd and Mr and Mrs Morris.  Mr Mendus-Edwards’s oral submissions relied on the well known decisions in Ridehalgh v Horsefield [1994] Ch. 205 and Metcalfe v Wotherill [2002] UKHL 27. 

6.	The two decisions make it clear that a court considering whether to make a wasted costs order must bear in mind the difficulties legal representatives face in meeting allegations that they have acted unreasonably or improperly, and have led to the incurring of wasted costs. The difficulties arise because their communications with clients are covered by legal professional privilege.  In particular, in Ridehalgh v Horsefield at page 237 b-d, the court refers to the difficult position that lawyers are in because the privilege is not theirs to waive. It also refers to the fact that a lawyer would be slow to advise a client to waive privilege and may well feel bound to advise that independent advice be taken. It states:

“Judges who are invited to make or contemplate making a wasted costs order must make full allowance for the inability of the Respondent lawyers to tell the whole story. Where there is room for doubt the Respondent lawyers are entitled to the benefit of it.  It is again only when ,with all allowances made, the lawyers’ conduct of proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order.”

The judgment of the court was given by Sir Thomas Bingham MR as he then was.  The leading judgment in Metcalfe v Wotherill was given by Lord Bingham of Cornhill as he now is.  Not surprisingly, what is stated in the recent case is very similar to what is stated in Ridehalgh’s case: see paragraphs 23 to 24 of his Lordship’s judgment and paragraphs 31 and 40 of Lord Steyn’s judgment.  Before leaving the authorities, we remind ourselves that, as was said in Ridehalgh v Horsefield:

“It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved. They are there to present the case, it is as Samuel Johnson unforgettably pointed for the judge and not the lawyers to judge it.”

7.	We turn to the alleged inadequacies considered by the Employment Tribunal when making their order. The first is that the witness statements prepared by the Respondent’s witnesses were wholly inadequate; see paragraph 9 of the decision.  The Tribunal states that the fact that the witness statements had been prepared by a paralegal assistant who had since left the firm made no difference.  Alan Roberts & Co was representing the Respondents and is responsible for any deficiencies in those statements.  Mr Mendus-Edwards did not dissent from this part of the Tribunal’s decision.  

8.	Before us, the focus was on the statement of Mr Harty. He was a Human Resources Manager who advised Highvogue Ltd on a consultancy basis and attended meetings involving the Claimant in this case.  The Tribunal stated (see paragraph 11) that Mr Harty’s statement was particularly lacking in content. The statement ran to four sentences.  It states that he conducted the meeting on 30 July 2004 and that the Claimant was treated fairly at that meeting.  The Tribunal states: 

“Mr Greatorex, counsel for the Claimant, had to extract Mr Harty’s evidence-in-chief before he could then cross examine on it.  Mr Harty’s evidence began after lunch (1.35pm) on the second day of the case (3 June 2005).  Cross-examination began at 2pm and continued until 4.40pm that day.  As it became apparent that there were important and relevant documents prepared by Mr Harty which had not been disclosed to the Claimant or to the Tribunal, Mr Harty was cross-examined further at the start of the adjourned hearing on 9 November 2005.”

9.	Paragraph 12 of the decision states:

“Had this statement and disclosure been properly done in the first place, a considerable amount of time spend by Mr Greatorex in obtaining the necessary evidence would have been avoided.”
The Tribunal observed that, to a lesser extent, the same could be said about the rest of the Respondents’ witnesses’ statements.  

10.	The second alleged inadequacy is non-disclosure of the documents to which the Tribunal referred in the passage from which we have just quoted. These were documents prepared by Mr Harty, notes of the meeting on 30 July, and the notes of a later meeting on 4 August.  Paragraph 14 of the decision states that Mr Harty told the Tribunal he had not been asked whether he had any notes.  The existence of the notes came to light during Mr Greatorex’s cross-examination.  The Tribunal comments (in paragraph 15) that: 
“a party acting in person may be forgiven for not realising when a document is relevant or not but Mr Roberts and his firm are employment law experts and we consider it basic good practice that all witnesses should be asked about what documentation they might possess.  The onus should not have been on Mr Harty to volunteer his notes.”

We observe that the issue whether Mr Harty was asked to supplement his statement and was asked about notes is a matter in dispute both in the documentation for this appeal and during it.  

11.	The third alleged inadequacy concerns the reliance by Mr Roberts on the statutory defence.  In paragraph 18 of its costs decision the Tribunal states that the first time it learned that the defence was being relied on was during the closing submissions.  The point appeared from nowhere and had to be dealt with in the absence of any evidence or cross-examination.  It made extra work for the Claimant’s representative and the Tribunal, and prolonged the hearing. Paragraph 18 continues:
“When it was pointed out to Mr Roberts that such matters had not been raised earlier either in the Response, any witness statement, any reference to documentation, in cross-examination of Miss Davies or in any other form, he persisted with these points.”

12.	The fourth alleged inadequacy concerns bias.  The Tribunal states that: 

“On the second day Mr Roberts accused the Tribunal of bias and stated that his cross-examination of the Claimant had been wrongly curtailed.”
13.	On this, paragraph 20 of the Tribunal’s decision records that Mr Roberts was granted an adjournment to discuss the matters he had raised in respect of bias and: 

“to give the Tribunal details of how it was said that the Tribunal was biased”

It is stated that he returned with instructions that he was not making an application that the Tribunal should recuse itself and that the Respondents wanted the case to proceed.  The Tribunal recalled that this issue occupied some 45 minutes.  

14.	Finally it is alleged the Tribunal erred in concluding that Mr Roberts’s cross-examination of the Claimant went beyond what was reasonable.  Paragraph 21 of the decision states that his questioning was repetitive, unnecessarily lengthy, it was suggested to the Claimant that she was sexually promiscuous, and there were questions of a highly personal and derogatory nature relating to her behaviour outside work.  The Tribunal states that it attempted to prevent this line of questioning. However, it continued and was compounded by Mr Roberts’s objections to the Tribunal on the second day about having his cross-examination curtailed.  The substantive decision describes Mr Roberts’s cross-examination as “assertive and sustained”.  Paragraph 33 of the costs decision refers to this. It states that was said at that stage about the Claimant’s credibility. It was said before the Tribunal had considered the remedy and the costs application. It was only at that stage that the Tribunal considered whether the cross-examination was unreasonable.  The Tribunal stated that, having given consideration to the matter, it concluded Mr Roberts’ cross-examination was “prolix, irrelevant in places and oppressive to the Claimant”. It also stated “he compounded this by arguing with the Tribunal when attempts were made to curtail particular lines of questioning”.  

15.	The Tribunal directed itself in accordance with the three stage test set out in Ridehalgh v Horsefield. The first stage is whether the legal representative has acted improperly, unreasonably or negligently. The second is whether his conduct has caused the other side to incur an identifiable sum of wasted costs. The third is whether it is just that an order for wasted costs should be made.  As far as the first stage is concerned, the Tribunal was not prepared to say that Mr Roberts conduct was improper. It, however, took the view that the conduct it described and which we have summarised was unreasonable.  The Tribunal states:

“It may have been done with the intention of zealously challenging the Claimant’s evidence.  However, motive is not relevant.  The effect of Mr Robert’s cross-examination was to intimidate the Claimant.”

The Tribunal went on to explain how it characterised the conduct as going further then “assertive and sustained”.  

16.	In paragraph 34 the Tribunal states that it is aware of the fact that an advocate is often in the position of having to make decisions quickly and under pressure.  It states that its criticism is of the preparation and framing of the defence. In this paragraph the Tribunal appears to be primarily considering the witness statements. It states that it should not have been Mr Greatorex’s job to take the Respondent’s witnesses’ through what amounted to examination-in-chief before being able to cross-examine them.  As far as whether Mr Roberts’ conduct caused the other side to incur wasted costs with respect to the witness statements, in paragraph 34 the Tribunal states that what happened considerably lengthened the hearing and meant that Mr Greatorex had to do a considerable amount of work on his feet.  While the Respondents had the advantage of the Claimant’s witness statements before the hearings the Claimant was at a disadvantage in that her representatives could have had very little idea of precisely what was going to be said by the Respondents’ witnesses until they were questioned by Mr Greatorex.  

17.	The Tribunal next considered whether Mr Roberts’ conduct caused the Claimant to incur unnecessary costs. In paragraph 35 it states the answer must be “yes”. This was because the length of the hearing was determined in no small part by the initial lack of evidence on behalf of the Respondents’ witnesses, the length of the cross-examination of the Claimant on irrelevant issues, and his debates with the Tribunal and parties over the relevance of evidence. The Tribunal also referred to Mr Roberts’ questioning the Tribunal about its curtailment of his cross-examination, the un-sustained allegation of bias, personal comments, and his questions as to the need to disclose documents which should have been but were not disclosed.  

18.	At the hearing before us, the focus was on Mr Harty’s witness statement and the bias issue. There is no challenge to what the Tribunal said about the effect on the length of the hearing of the way the other statements were prepared.  It is also important to observe that directions had been given at a case management discussion for the conduct of the initial hearing. The Tribunal took the non-compliance with these into account, as it was entitled to do so.  

19.	Finally the Tribunal considered the justice of ordering costs. It concluded that it was just to do so. It did not, at that stage, go beyond stating that it was of the view that the costs incurred by the Claimant were increased by 35% by Mr Roberts’ unreasonable conduct.  It stated that it was aware that it did not have precise figures from the Claimant as to her total costs.  It was aware of, and referred to, the fact that it would be necessary for the matter to be submitted for taxation. It also states in paragraph 40 that it was not able to put a precise figure on the 35% of the costs and expresses the hope the parties could agree a figure on the basis of its indication.  Paragraph 41, however, states that if necessary the Tribunal would reconvene to consider the precise sum it was going to award by way of costs, and also to consider Alan Roberts & Co’s ability to pay them.  It refers to the need to do that in paragraph 38.

20.	 The grounds of appeal also complain that there has been no compliance with rule 47(6) as to the ability of Alan Roberts & Co to pay, or with rule 48(7) as to the requirement that, where a Tribunal makes a wasted costs order, it must specify the amount to be disallowed or paid.  On behalf of the Appellant, no point was taken as to the difference between sub-rules 6 and 7. Whereas sub-rule 7 states the Tribunal “must specify the amount to be disallowed”, sub-rule 6 states that the Tribunal “may” have regard to the representative’s ability to pay.  

21.	It is possible for us to deal with this part of the appeal briefly.  The Tribunal made it clear in paragraphs 38 and 41 of the decision that it was making an order in principle that the costs were increased by 35% by the conduct which it found was unreasonable.  It stated that it hoped the parties would agree a figure but that it would reconvene to consider the precise sum if they could not do so, and also to consider the firm’s ability to pay.  In those circumstances we do not consider that the requirements of the rules have not been met.  It is open to the parties to return to the Tribunal to deal with these matters and to make submissions as they wish.  

22.	Before turning to the other grounds of the appeal we refer to the chair’s notes of the proceedings.  At page 3 of the typed notes before us there is a summary in note form of Mr Harty’s cross examination.  The headline points, if we may so describe them, are that it is stated that Mr Roberts’s paralegal Amanda Bektamaur produced the first draft of Mr Harty’s statement and sent it to him for comments.  Mr Harty stated that he was guided by her, and felt the statement was fine. He was not sure what was required; he was not told different by Amanda.  At the outset of this section, the note states “why not say all this in witness statement”, “this” being the detail which Mr Greatorex had covered in previous questions. The note gives his response as “this sort of detail not levelled at me by whoever running the case”. Asked who that was, he replied “Mr Roberts’s practice”.  At page 6 of the notes Mr Harty was asked if Mr Roberts had asked him if he had made any notes, his response is “I would not believe – up to quality of notes”. He was asked, “were you asked about notes”. His response was “no, do have scribbled notes”.  It was at that point that the Tribunal directed that he supply the notes to Mr Roberts who was to photocopy them, and send a copy to the Claimant’s representatives. The Tribunal directed that the original notes be bought to an adjourned hearing which would require further cross-examination of Mr Harty in relation to the notes and any other documents which came to light.  Mr Roberts agreed that he would only communicate with Mr Harty in respect of the notes.  

23.	Following the hearing, in a letter dated 6 June 2005 (which is exhibit 7 to Mr Roberts’s affidavit), Mr Roberts wrote asking Mr Harty to let him have his sketchy original notes of the two meetings.  The letter also states that Mr Roberts wished Mr Harty to clarify the position.  It states:
“I got the distinct impression that when you were cross-examined by their barrister….about whether Amanda asked you to produce your notes, I thought you started to answer yes but hesitated and he asked you again and you answered “no”.  So my question is – “is that correct” (I only want you to tell the truth which I am sure you will) if Amanda didn’t she didn’t but I am not sure you were going to say that.  Perhaps you could not remember, if so please say so.
We have checked with Amanda and she recalls that she asked you and Beryl for any minutes of meetings.  Moreover, this also seems to be supported by our letter and I enclose copy letter to Beryl of the 13 October 2005, the day after your meeting with Beryl and Amanda on 12 October at our office when Amanda states under point 11 about letting her have any minutes from the meetings etc, we also enclose a copy letter back from Beryl of 13 October when she put points next to each point and a copy letter to Beryl of 20 May 2005 when we sent her the list of documents and your minutes were again not bought to our attention.”

We make no observations on the propriety of this letter.

24.	We have referred to the fact that the essence of the appeal is there was no evidence that deficiencies in Mr Harty’s statement were due to Alan Roberts & Co. The suggestion is that the evidence is consistent with failure by Mr Harty to co-operate, and with possible failures by Highvogue Ltd and Mr and Mrs Morris.  It is also submitted that Mr Harty had said in re-examination that he had been asked by the representative of Alan Roberts & Co to add to his statement but declined to do so. Mr Roberts complained that the Tribunal did not address this in its reasons.  On the issue of bias, it is submitted the Tribunal had no evidence as to Mr Roberts’s instructions before the adjournment. It is submitted that, in the light of the authorities to which we have referred, the Tribunal was bound to assume that he was acting on instructions.  Fourthly, the credibility of Miss Davies was central to this case and it could not be said to be unreasonable to cross-examine her especially if that was done on instructions.  

25.	We  have considered the submission that the Tribunal assumed these failings were Alan Roberts & Co’s as opposed to those of the firms lay clients very carefully.  We bear in mind what was said by Lord Bingham in Ridehalgh v Horsefield and Metcalfe v Wotherill.  We do not consider that the Tribunal fell into the errors which are alleged.  It is important to remember that the costs hearing, which took place over 4 months after the substantive hearing, was a hearing at which both parties had the opportunity of putting before the Tribunal all the material that they wished it to consider.  There were submissions and there were additional documents, including the letter Alan Roberts & Co sent the representative of Highvogue with the checklist in effect of all the matters that they wished attended to in the preparation of the case.  This was a general letter sent well before the proceedings. Confining ourselves to Mr Harty’s witness statement that letter did not address his position. It was a letter written before the representative of the firm, Amanda Bektamaur had drafted his witness statement. No other new evidence was put before the Tribunal.

26.	We turn to each of the allegations made.  First we deal with those concerning Mr Harty’s witness statement and his notes.  The Chairman’s notes of Mr Harty’s cross-examination at the hearing in June recorded that he was asked who asked him to do the witness statement and whether he was told that anything more was needed. They record that he replied that it was Ms Bektamaur who asked him and that she did not tell him anything more was required.  In the light of this, we conclude that there is evidence upon which the Tribunal could find that responsibility for the deficiencies could be laid on the firm, either on Mr Roberts himself but more probably on Ms Bektamaur.  We do not have not have a full picture of the matter but there certainly was evidence before the Tribunal from which it could reach this conclusion.  Mr Harty’s evidence was to this effect. At the hearing in November his recollection was that he had not been asked about the notes. Although, in re-examination, he was more equivocal, he did not say that he had been asked.  We have quoted what he said.  When re-examined he did not resile from his evidence in cross-examination but was more equivocal.  

27.	Secondly, we have referred to the fact that there was no application before the Tribunal at the costs hearing for fresh evidence.  We are alive to what was said in Metcalfe v Wotherill and Ridehalgh v Horsefield about the difficulty of lawyers in seeking waivers of privilege.  In this case, however, there is evidence in the bundle before us, for example a witness statement by Dawn Farrell, which could have been before the Tribunal.  No application was made to adduce that evidence before us, and it was not before the Tribunal.  It is difficult to see why that evidence could not have been before the Tribunal.  The parties agree that this issue has to be decided on the evidence considered at the substantive hearing and the submissions at the costs hearing.  We have concluded that the Tribunal was entitled to reach the conclusions that it did, both about Mr Harty’s documents and the question of supplementing his statement.  

28.	We next come to the submission that the Tribunal had no evidence as to the instructions on the issue of bias.  Mr Mendus-Edwards submitted that, having regard to the contents of Mr Roberts’s affidavit and in particular paragraphs 52 to 59 on bias, Mr Roberts acted reasonably. He raised his clients’ concern with the Tribunal and, during the adjournment, tried to diffuse the situation in the way described in paragraphs 56 to 58.  He submitted that the way that Mr Roberts had behaved was a model of how an advocate should restrain a client. He submitted that this illustrated the importance, in considering wasted costs, of making allowance for the rough and tumble during a hearing.  Paragraphs 52 to 58 of the affidavit set out what Mr Roberts said had occurred.  Mr Mendus-Edwards was asked by us whether the statement that Mr Roberts was instructed to raise the Tribunal’s bias was contained in paragraph 54. He said it was. Paragraph 54 states:

“My clients became very concerned as what they thought was the Tribunal treating Miss Davies with “kid gloves” and they instructed me that they felt that Miss Cocks the Chairman had made it clear she did not like me.”

Paragraph 55 states:

“My clients were concerned that this perceived bias would go against them.  It was against this background that I did respectfully remind the Tribunal of there obligation under the European Convention of Human Rights Act to treat both parties equally.  I requested an adjournment to take my clients instructions who at this time were very upset with the Chairman and it seemed that they might just walk out and give in.”

We observe that, neither in paragraph 54 nor in paragraph 55, does Mr Roberts state that he was instructed to make the application that he did make before the adjournment.    

29.	The perceived bias referred to relates to the Tribunal’s treatment of Miss Davies and this appears to relate back to Mr Robert’s cross-examination.  There was clearly a clash between the Tribunal and Mr Roberts about how his cross-examination was conducted.  We accept that it is right for an advocate to cross-examine a complainant fearlessly and vigorously.  The Tribunal, however, has explained why it did not consider that, in the circumstances of these Respondents’ defence, the questioning was appropriate. The defence was that none of these events occurred.  The line of questioning was to ask about Miss Davies’ private life, her manner of dressing, which was said to be provocative, and about other such matters. In the light of the defence these were irrelevant.  Mr Roberts’ refusal to accept the Tribunal’s indications that the line of questioning was not proper, coupled with its view that it was repetitious and prolix would, of course, raise concerns in a lay client. The lay client would be concerned that the exchanges between their representative and the Tribunal were unhelpful to the case being advanced.  

30.	Against this background, because the allegation of bias appears to relate to interactions during the hearing, and in the light of what is said by Mr Roberts in his affidavit, we do not consider the Tribunal fell foul of what was said in Metcalfe v Wotherill and Ridehalgh v Horsefield.  The Tribunal recorded what happened at paragraphs 19 and 20 of its decision. This went further than the description in Mr Roberts’ affidavit.  We are satisfied that it was entitled to conclude from what happened that Mr Roberts had not been instructed to raise this point. This is particularly so since Mr Roberts informed them after the adjournment that his instructions were not to make any application but to proceed.  It is significant that he states that the adjournment was requested to take instructions because his clients might walk out and give in.  

31.	Finally, there is the issue of credibility to which we have referred.  The Tribunal dealt with this at paragraphs 21 and 33 of the costs decision and in paragraphs 29 and 30 of the substantive decision.  In paragraph 29 of the substantive decision the Tribunal stated that: 

“Both Respondents deny that any of the incidents described by the Claimant took place.  In the light of that blanket denial, it cannot be relevant to then argue that the Claimant, through allegations of her own behaviour, such as wearing provocative clothing or putting her arms around a male employee, was not offended or that the behaviour by Mr Morris was not unwanted by her.  In the Respondent’s case: nothing happened.”

32.	Before the Tribunal it was also suggested that the Claimant had lied because she had Attention Deficit Hyperactivity Disorder (“ADHD”) and had sought attention: see paragraph 30.  The Tribunal observed that there was no medical evidence before it that ADHD means the sufferer is attention seeking. In the costs hearing the Tribunal refers to the ADHD point at paragraph 16.  It states:
“This was not a case where the defence was that something had happened, but not as the Claimant described it. In those circumstances the Claimant’s conduct may well have been relevant, but not with the defence as run by the Respondents.”

Similarly, in relation to the statutory defence a matter was raised which was foreshadowed by neither the ET3, the cross-examination of the complainant, nor in any other way. Yet Mr Roberts persisted in the submission notwithstanding the Tribunal pointing this out to him.  

33.	It is true that many hopeless cases are litigated because the litigants are persistent rather than because of their representatives. We consider this Tribunal had positive evidence in respect of the particular failures that it found which enabled it to conclude that those failures were the responsibility of Alan Roberts & Co. The most important of these, and the most significant in terms of its effect on the time taken was the matter of Mr Harty’s witness statement and the notes.  Mr Roberts feels strongly that Mr Harty gave evidence that he was asked for the notes. That matter is, however, not properly before us. Nor did Mr Mendus-Edwards feel able to say that it was.  For this reason, however, we emphasise that on that issue it appears that the responsibility lay with the person responsible for pre-hearing preparation. We have said that was probably not Mr Roberts’ personal responsibility.  

34.	For these reasons we dismiss this appeal.

© Copyright 2007

UKEAT/0093/07/RN

UKEAT/0093/07/RN
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