United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TOBY KEMPSTER (of Counsel) Instructed by: Messrs Blake Lapthorn Linnel Solicitors Harbour Court Compass Road North Harbour Portsmouth PO6 4ST
For the Respondent	MS BUSHRA AHMED (of Counsel) Instructed by: Messrs O H Parsons & Partners Solicitors 3rd Floor Sovereign House 212-224 Shaftesbury Avenue London WC2H 8PR


 


SUMMARY

PRACTICE AND PROCEDURE

Costs

Previous refusal by the Respondent to accept offers by the Appellant in the same terms as were accepted at the door of the Court held unreasonable conduct, leading to an order in favour of the Appellant of costs in the sum of £3420.


 


THE HONOURABLE MR JUSTICE BURTON

1. I am afraid that we conclude that your client should pay the £3,420, Ms Ahmed. Very briefly, our reasons are that we are satisfied that the Respondent acted unreasonably in failing to accept or even put in any counter offer to the offer of 19 May 1009. The result of that is that considerably more costs have been incurred than the £3,420 which is all that the Appellant is now seeking. That offer of 19 May was reiterated on 3 September and, once again, was rejected and/or no counter offer was made, and again, somewhat more than the £3,420 has been incurred since 3 September 2009. Consequently, if we are satisfied that that rejection and failure to counter offer was unreasonable, then the sum of £3,420 which is being sought is considerably less than the costs which have flowed as a result of that unreasonable conduct. We are entirely satisfied that it was unreasonable conduct not to accept or counter offer on the first (never mind the second) offer.
2. Today the same figure as was offered on 19 May (which was paid over by way of an interim payment) has been accepted. It has been accepted at the door of the court. Ms Ahmed says that she was influenced by the provisional indications by the Tribunal as to the arguability of the Appellant's case. But the arguability was put forward on two bases: one that in any event the appeal was arguable (which must have been apparent to those advising her client) from the very fact that the matter was sent through to a full hearing, but further, that there was the real risk that success in the appeal might not be the end of this, because there might be only a limited success for the Appellant i.e. only to the extent of the matter being remitted, which would lead to yet further costs and delay.
3. Against that background, there was at long last consideration of the offer and it was finally today accepted. It seems to us wholly unrealistic and unreasonable of the Respondent's advisers not to have accepted that earlier. It is not an answer for Ms Ahmed to say that there was a judgment in the Respondent's favour and her client was entitled to resist the appeal. Of course that is right, in that she is entitled to resist the appeal unless and until there is either an event, an outcome of the appeal, or an offer which requires to be considered. It is in this day and age - indeed, if it was not in the past also – part and parcel of any litigation proceedings to make and consider offers in the meanwhile. This offer was as acceptable in May as it was today. It took account of litigation risks, and the matters that were raised today must have been apparent (and should have been apparent if they were not), and clearly were apparent from looking at Ms Ahmed's own skeleton argument for the purposes of this appeal, in May as they are today.
4. They have been properly taken account of by the very realistic approach today, and the very sensible settlement that has occurred, which is in both sides' interests; but that should have occurred months ago, and the costs that have been incurred as a result of that unreasonable conduct must be paid by the Respondent, effectively, of course by deduction from the £30,000 which he has otherwise received, so that the Tribunal can feel comfortable that he remains properly and well remunerated in respect of the tortious act of the Appellant, for which the Tribunal has unchallengeably found them liable.
5. The appeal is allowed. The judgment of the Employment Tribunal is set aside, and a sum of £30,000 is substituted, and that sum being recorded to have already been paid by way of an interim payment, so no further sum falls to be paid by the Appellant/Respondent and it is ordered that the Respondent pay to the Appellant costs of £3,420, such sum to be payable within 21 days.