United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Written submissions
For the Respondents to the costs application	Written submissions by: Messrs Wilson Browne Solicitors Kettering Parkway South Kettering Venture Park Kettering Northamptonshire NN15 6WN And Messrs Fishburns Solicitors 60 Fenchurch Street London ECM 4AD

SUMMARY

COSTS

Following the setting aside of the Employment Tribunal Judgment on grounds of apparent bias, a wasted costs order was made in respect of the improper conduct of counsel which contributed to the irregularity in procedure.


 


HIS HONOUR JUDGE McMULLEN QC

1. Following our judgment on 27 February 2009 the Claimant made an application for costs in respect of expenses and what we take to be preparation time incurred in attending the Employment Appeal Tribunal and obtaining advice. He was represented by Counsel from the Free Representation Unit at the Order 3(10) hearing and the full hearing. He seeks £1,369.96. He does not seek an oral hearing.
2. Wilson Browne solicitors have responded on behalf of the Respondent. They correctly analyse that the Claimant's claim is for wasted costs. They also identify that the claim appears to be against Counsel instructed by them, in respect of her actions as we have described them in the judgment, and also against themselves as being responsible for the actions of their Counsel. There is no challenge to the figures produced by the Claimant, to the matters itemised or to the basis of the order sought if his claim is otherwise correct. Wilson Browne ask for the matter to be dealt with without an oral hearing.
3. Wilson Browne seek to associate themselves with a submission subsequently received from Fishburns, solicitors acting on behalf of Counsel instructed by Wilson Browne at the Employment Tribunal. They draw attention to the fact that the wasted costs procedure should be summary and proportionate: see Ridehalg v Horsefield [1994] Ch 205. On the one hand, they submit that it would be entirely disproportionate to conduct an oral hearing and yet at the same time seek one.
4. From this equivocal position we make our decision under rule 34C(5) of the Employment Appeal Tribunal Rules, which requires a reasonable opportunity to be given to a representative to make oral or written representations as to why an order should not be made. That opportunity has been given. It is a matter of discretion as to whether the written or oral approach is taken under this rule. All parties have now set out in full their written submissions. We agree that it is disproportionate (as Fishburns originally put it) to hold a hearing. The sum is small (Wilson Browne originally threatened the Claimant with an order for £11,000 odd) and not disputed by Wilson Browne or Fishburns. The facts are already found by us. Counsel in her evidence denied the incidents but we upheld the Judge's account of what she did. The issue is narrow. Two parties seek determination on the papers under Rule 34C(5). There will be substantial extra costs to all and to the administration of justice if a hearing is listed.
5. The central issue is whether wasted costs should be awarded against Wilson Browne and/or Counsel in respect of any unreasonable improper or negligent act: Rule 34C(3). A wasted costs order should be made only in respect of acts caused by the conduct of a representative. We accept the proposition of Wilson Browne that no authority is available to us to show that Wilson Browne should be responsible vicariously for acts of Counsel in court. In the circumstances of this case we are clear that the Claimant's complaint was made against Counsel in respect of her acts and there is no indication that Wilson Browne were in any way involved nor responsible in law for her conduct. No separate conduct of Wilson Browne is alleged. The claim against them is refused.
6. We hold that it was improper for Counsel to approach the Judge in the two incidents. Our principal criticism, and the reason why the judgment was set aside, was because of the conduct of the Judge. We did suggest ways in which the Judge might have dealt with the two interventions of Counsel but neither of those was done. Ultimately the judgment was set aside because of the appearance of bias.
7. The Employment Tribunal also made a number of errors of substance. It wrongly excluded material relating to the first two grievances, it misapplied the law in relation to affirmation and it applied the wrong test to constructive dismissal. As we found, the decision to exclude the evidence on the first two grievances appears to have been made without reference to the Claimant. It had nothing to do with the conduct of Counsel.
8. We cannot say the Employment Tribunal's approach to the law on affirmation and constructive dismissal was in no way affected by Counsel's interventions. We have to assume in favour of the Claimant that it may have been. Elevation of the evidence of Mr Davis to a central position, and the Tribunal's approach to sensitive issues of his or the Claimant's may have affected the Tribunal's approach to affirmation and constructive dismissal. Counsel should have known better and while it is not improper for Counsel to approach a Judge on a particular matter, as we illustrated in the Judgment, it requires singular sensitivity and an exercise in extreme discretion when the Claimant is in person. To intervene in the way which Counsel did in this case was not the proper conduct of Counsel.
9. Fishburns make no challenge to the Claimant's arithmetic if in principle he is correct, nor any submission about Counsel's ability to pay under Rule 35C(5). There is no claim by Wilson Browne for an order disallowing Counsel's fees to their client or seeking repayment from her under Rule 35C(2). It is right to say that the Claimant has been put to additional expense in having to attend two Employment Tribunal hearings rather than one, and two hearings here. Some of the time and expense would have been incurred in any event. He was fortunate to have secured FRU representation here. Doing what we consider to be just and equitable in the light of the contribution of Counsel to the setting aside of this judgment, we order her to pay £750 to the Claimant.
10. Any application for permission to appeal should be made to the Employment Appeal Tribunal within seven days of the judgment being sent.