United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0388/11/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

 

 

                                                                                                             At the Tribunal

                                                                                                             On 1 May 2012

 

 

 

Before

THE HONOURABLE MR JUSTICE WILKIE

MR A HARRIS

MISS S M WILSON CBE

 

 

 

 

FREEDOM CHOICE CARE LTD                                                                          APPELLANT

 

 

 

 

 

 

MS R BUCHANAN                                                                                              RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

                                            APPEARANCES

 

 

 

 

 

For the Appellant	MR DANIEL MATOVU (of Counsel) Instructed by: RBS Group Mentor Services 2nd Floor 1 Hardman Boulevard Manchester M3 3AQ
For the Respondent	MS EMMA WILKINSON, (Representative) Equality and Employment Rights Citizens Advice Specialist Support Middleton House 115-123 Pentonville Road London N1 9LZ

 

 

SUMMARY

PRACTICE AND PROCEDURE – Case management

 

The mechanics of determining the composition of an Employment Tribunal panel for a remedies hearing and the power to substitute a member for a non‑available member.
THE HONOURABLE MR JUSTICE WILKIE

Introduction

1.              Ms Buchanan brought proceedings against her employer, Freedom Choice Care Limited, in the Employment Tribunal at Cardiff, claiming, amongst other things, that she had been sexually discriminated against by the Respondent pursuant to section 3A of the Sex Discrimination Act 1995.  After a liability hearing on 23 and 24 February 2011, before an Employment Tribunal comprising Employment Judge Harper, Mr Watson and Mrs Phillips, the claim for sexual discrimination succeeded.

 

2.              The reasoned Judgment of the Employment Tribunal sets out in a number of paragraphs, not only the way in which the Claimant was treated by her employers in the course of her employment, but also the way in which the litigation had been conducted and, in particular, the way in which the hearing had been conducted by the representative of the Respondent, Ms Sky Bibi, of whose legal qualifications, if any, we are unaware. She was provided to the Respondent as a representative by RBS Mentor Services.  Suffice it to say that the liability judgment was highly critical of the way in which the Claimant had been dealt with by the employer and the way in which the hearing had been conducted by Ms Bibi.

 

Background

3.              The remedies hearing was to take place on a date to be notified by the Employment Tribunal.  The Judgment was dated 9 March 2011.  The remedies hearing took place on 20 April 2011.  That is within 42 days of the promulgation of the liability decision on 11 March 2011.  In fact, notice of the date of the remedies hearing was sent to the parties on 14 March 2011.  Between the 14 March and the 20 April there were a number of attempts by, it would seem, Ms Bibi on behalf of the Appellant to obtain a delay in the remedies hearing.  On 15 March 2011 an application was made to the Tribunal seeking a review.  The Employment Judge refused the review. That refusal was notified to the Respondent on 23 March 2011. 

 

4.              On 14 April 2011 the Respondent wrote to the Tribunal:

 

“The Respondent is appealing the Tribunal’s decision on liability and we request that the remedies hearing, listed on 20 April 2011, is stayed.”

 

Whether deliberately or otherwise, this communication gave a false impression because, in fact, as of that date, no appeal had been launched in respect of the liability decision.  On that basis, on 19 April 2011, the Respondent was notified that the application to postpone the remedies hearing was refused by the Tribunal. The letter made the point that no notification of appeal had been received by it.  In fact an appeal was launched against the liability decision, on the last day for so doing, on 19 April 2011.

 

5.              In response to the notification that the application for postponement had been refused, the Respondent wrote to the Tribunal to the effect that, because the time limit for appeal is 42 days there was no need for the appeal to have been launched by that date, but, in fact, as we have noted, it was launched, subsequently, and in time.  The Respondent suggested that it was contrary to general practice for a remedies hearing to be listed within the 42‑day period within which an appeal might be launched against a liability judgment.  That met with the response from the Tribunal that there was no prohibition on the remedies hearing being listed for hearing within 42 days.

 

6.              In fact, the appeal on liability launched by the Respondent was considered by the EAT, by a single Judge, on the papers, pursuant to the sift process, and was found to contain no arguable case. Accordingly, no further action was taken in respect of that appeal.

 

7.              On 20 April 2011 the parties attended the Tribunal for the remedies hearing. The Claimant had, in preparation for the remedies hearing, submitted a schedule of loss claiming, amongst other things, injury to feelings and aggravated damages.  She also, apparently, submitted a witness statement.  As the Tribunal observed, those documents were filed late upon the Respondent, in fact on the day before the remedy hearing.  However, as circumstances developed, the Appellant was thought by the Tribunal to have had sufficient time to consider it.

 

8.              After a number of preliminary issues had been raised and dealt with, the Employment Tribunal, as it was then constituted, proceeded with the remedies hearing.  It received evidence, both from the Claimant and, on behalf of the Respondent, by Mr Anderson, both of whom gave evidence orally - in the Claimant’s case in addition to her written evidence - and both of whom were subjected to cross‑examination.  The Employment Tribunal concluded that the conduct by the Respondent, again represented by Ms Bibi, of the remedies hearing continued in the same vein as had their conduct of the liability hearing, including the suggestions made by Ms Bibi that the Claimant had been lying in her evidence.  The Employment Tribunal came to conclusions as to compensation for injury to feelings and aggravated damages and awarded £10,000 in respect of the former and £3,000 in respect of the latter.

 

9.              The particular issue which arose at the outset of the Tribunal remedies hearing, with which we have had to grapple, concerned the composition of the Employment Tribunal.  Two of the three original members of that Tribunal who had conducted the liability hearing, Employment Judge Harper and Mr Watson, were available and sat as members of the Tribunal for the remedies hearing.  It became apparent, on the morning of the hearing, though not before, that the third member of the Tribunal who had sat in the liability hearing, Mrs Phillips, had been double‑booked by the Tribunal service. She was at the Cardiff Tribunal that day but had a commitment to sit in another case which was proceeding on that day on a part‑heard basis.

 

10.          In the remedies decision, at paragraph 8, the Employment Tribunal records what happened in the following terms:

 

“8. On the day of the remedies hearing, it was discovered that Mrs Phillips, who had been a Member on the liability panel, was also sitting on an all‑day part‑heard liability case.  She was, therefore, unable to sit on the remedies hearing.  At short notice Mrs Mapstone was contacted and, upon her arrival at the Tribunal, was briefed by the Employment Judge and Mr Watson, the other member, and she read the liability judgment.”

 

Accordingly, the third member of the Tribunal, which conducted the remedies hearing, was Mrs Mapstone.

 

11.          There then appears, at paragraphs 9 to 13 of the decision of the Employment Tribunal on remedies, a rehearsal by the Tribunal of a number of arguments raised by Ms Bibi on behalf of the Respondent as to why the Tribunal, as now constituted, should not proceed to hear the remedies issues.  She referred to a number of statutory provisions, each of which the Tribunal dealt with and concluded that each of them was misdirected or misconceived.  She then, at paragraph 13, submitted that the remedies hearing should not take place because there was now an appeal launched, in effect renewing the argument which had been advanced in advance of the hearing, seeking for it to be postponed.

 

12.          It is clear to us, and it was accepted by Mr Matovu, who, if we may say so, has addressed us extremely ably and most helpfully, that there is no explicit reference in the arguments put forward by Ms Bibi to any suggestion or argument that Mrs Mapstone was not validly appointed as a member of the Tribunal.  Rather, the various arguments being addressed by Ms Bibi - and it must be remembered that the circumstances which she faced were circumstances which had only just emerged - were to the effect that the third member, who had not been part of the Tribunal who had heard the liability hearing, should not form a part of the Tribunal and that, therefore, the Tribunal should not proceed as thus constituted to hear the issues on remedies.

 

13.          As we have indicated, the Tribunal did not accede to any of the arguments of Ms Bibi on this issue and proceeded to hear the remedies issues and made the awards to which we have referred.

 

14.          There was a Notice of Appeal against the findings of the Tribunal on the remedies hearing dated 6 June 2011, the decision on remedies having been sent to the parties on 26 April 2011.  This was settled on behalf of the Appellant by the RBS Mentor Services, it would appear by Ms Bibi. The grounds upon which the appeal was brought included, in paragraph 7A, the following:

 

“(1). The Tribunal misdirected itself in relation to Section 4(1) of the Employment Tribunals Act 1996.  The Tribunal ignored the Respondent’s objection to a differently constituted Tribunal panel hearing the case.  The Tribunal applied the wrong test.  Such amounts to procedural unfairness in breach of the rules of natural justice.  Employment Judge Harper also refused to stay the remedies hearing pending the outcome of the appeal on Liability.”

 

Sub-paragraph 2 rehearses further arguments in relation to the application to postpone pending the outcome of the appeal.  Paragraph 3 reads:

 

“(3). The fact that the Tribunal Judge had told the new member, Mrs B Mapstone of the panel his views and that it appeared that she had not fully read the Judgment shows that the member views were predetermined by the Judge. […]”

 

There is then a reference to what was said in the Employment Tribunal’s decision in respect of the briefing of Mrs Mapstone.  That subparagraph goes on:

 

“(3) […] The Respondent does not know what EJ Harper had told the member.  Furthermore, it would appear that this effectively meant that there was an appearance of bias.  This led to the appearance that the decision of new member, Mrs B Mapstone was not independent; it was prejudged and would certainly have been tainted with what the Judge ‘had told her’.”

 

Once again, there is no inkling, in the Notice of Appeal of the issue which has now been raised and is now at the forefront of the Appellant’s appeal.

 

15.          The appeal as then constituted was subjected to the sift procedure and, by a decision dated 20 July 2011, HHJ McMullen QC ordered that the appeal be set down for a preliminary hearing at which the Appellant only would be heard, to be heard before a Judge and two members, and made consequential directions.

 

The Appellant’s case

16.          The hearing of that preliminary hearing took place on 14 October 2011 before Langstaff J, Mr Haywood and Ms Tatlow.  By that stage the Appellant had instructed Mr Matovu of counsel and he had prepared a skeleton argument for the preliminary hearing.  That document begins by headlining his submissions, after a short introduction, as concerning the composition of the Tribunal panel.  Amongst other things, he records at paragraph 27 the following:

 

“The power to substitute a new panel member was only exercisable in any event by the President, Vice‑President or a Regional Employment Judge under Regulation 9(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.  It is not clear from the ET Reasons at paragraph 8 whether the decision to contact Mrs Mapstone in substitution for Mrs Phillip was in fact taken by one of the President, Vice‑President or a Regional Employment Judge as required.”

 

17.          He is there adverting to a provision in the relevant regulations.  The composition of a Tribunal is governed by primary legislation in the form of the Employment Tribunals Act 1996, section 4 of which provides, amongst other things, as follows:

 

“(1). Subject to the following provisions of this section, and to section 7(3)A, proceedings before an employment tribunal shall be heard by–

(a) the person who, in accordance with regulations made under section 1(1), is the chairman, and

(b) two other members, or (with the consent of the parties) one other member, selected as the other members (or member) in accordance with regulations so made.”

 

Those regulations are the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.  Regulation 8 provides for “Panels of members of Tribunal – general”.  Sub-paragraph (3) of those Regulations provides, amongst other things:

 

“[…]

(b) a panel of persons appointed by the Lord Chancellor after consultation with such organisations or associations of organisations representative of employees as she sees it.

(c) a panel of persons appointed by the Lord Chancellor after consultation with such organisations or associations of organisations representative of employers as she sees fit.”

 

Regulation 9 provides as follows:

 

“(1) For each hearing, the President, Vice President or the Regional Employment Judge shall select a chairman, who shall, subject to regulation 11, be a member of the panel of chairmen, and the President, Vice President or the Regional Employment Judge may select himself.

(2) In any proceedings which are to be determined by a tribunal comprising an Employment Judge and two other members, the President, Regional Employment Judge or Vice President shall, subject to regulation 11, select one of those other members from the panel of persons appointed by the Lord Chancellor under regulation 8(3)(b) and the other from the panel of persons appointed under regulation 8(3)(c).

(3) In any proceedings which are to be determined by a Tribunal whose composition is described in paragraph (2) or, as the case may be, regulation 11(b), those proceedings may, with the consent of the parties, be heard and determined in the absence of any one member other than the Employment Judge.

(4) The President, Vice President, or a Regional Employment Judge may at any time select from the appropriate panel another person in substitution for the Employment Judge or other member of the Tribunal previously selected to hear any proceedings before a Tribunal or Employment Judge.”

 

18.          In general terms, therefore, the regulations provide that the composition of each and every Employment Tribunal shall be determined by either the President, Vice President or Regional Employment Judge. In every case in which a tribunal of three is required, the appointments shall be from the panel of employment judges and one each from the two panels of lay members appointed after consultation, respectively, with organisations of employees and employers. A hearing of an issue which requires a panel of three may be determined by a panel of two only, one of whom has to be an employment judge, but only with the consent of the parties. Finally, and most significantly for this appeal, that, regardless of the consent of the parties, (and it would appear not necessarily even by informing them in advance), one of the members of the Tribunal, whether a lay member or Employment Judge, can be substituted by another person from the relevant panel, but only by the President, Vice President or a Regional Employment Judge.

 

19.          This is what, in argument before us, has been referred to as the regulation 9(4) point. It is clear that it was not an argument which was advanced by the Appellant, either before the Employment Tribunal itself, or in the Notice of Appeal.  However, it was four-square put in issue by Mr Matovu at the preliminary hearing by virtue of paragraph 27 of his skeleton argument.

 

20.          The EAT, constituted as we have indicated, at the preliminary hearing concluded that, insofar as the appeal concerned the substance of the decision and the substance of the awards made, there was no arguable basis upon which the EAT could properly interfere with the award and, therefore, dismissed the appeals on those grounds.  However, it did permit the procedural argument to go through to this full hearing.

 

21.          The EAT at that hearing deals with this issue between paragraphs 5 to 8 of the reasoned decision.  It seems to us that paragraphs 5 and 6 really refer to the exercise by the Employment Tribunal of the case management power to decline to adjourn so that Mrs Phillips could be made available and thereby reconstitute the Tribunal in its original form as it heard the liability hearing.  Those are plainly arguments which were let through for a full hearing, but in addition the EAT, at paragraph 7, said as follows:

 

“7. It may be said to the contrary that there is no statutory provision that requires uniformity of constitution and it may be said that such statutory provisions as there are, which relate to a change of personnel at this stage in this form permit it, or do so at least upon one and perhaps obvious interpretation of those provisions.  However, we are sufficiently persuaded by Mr Matovu’s submissions on paper at any rate, we would emphasise in the particular circumstances of this case, where the findings at the remedies hearing related back to the way in which the matter had been conducted at the liability hearing.  We think it is arguable that there may have been a procedural irregularity in the way in which the panel was composed.  We say nothing about what the consequences would be in terms of remedy if that argument were to succeed, that is a matter for the Tribunal hearing the appeal.  We observe, however, that if that should succeed it seems to us almost inevitable that the balance at the findings at the remedies hearing will themselves fall, but they are before us now.  Mr Matovu seeks leave to argue that the remedy in respect of the award for injury and feelings and separately the award in respect of aggravated damages are manifestly excessive.”

 

At that point they go on to deal with the substantive issues which they found to be not arguable.

 

22.          In our judgment Mr Matovu is entitled to assert that the EAT, at the preliminary hearing, was saying that the arguments about procedural irregularity, which should be heard by the full Tribunal, included his argument, the regulation 9(4) argument, which was explicitly referred to at paragraph 27 of his skeleton argument, although this was not a point which was ever raised before the Employment Tribunal, was not raised in the Notice of Appeal, but was first raised in counsel’s skeleton argument at the preliminary hearing, Mr Matovu is right to say that, if his argument is a good one, then it is a matter of pure jurisdiction and cannot properly be shut out, merely by virtue of the fact that it has not been raised previously.  At any rate, that seems to us at this stage to be the case.

 

23.          That the EAT very much had in mind this argument is to be perceived from the terms of paragraph 18 of its decision at the preliminary hearing where the Tribunal was considering the case management directions that should be given.  Paragraph 18 of the Judgment says as follows:

 

“18. I order that the precise circumstances of the appointment of Mrs Mapstone are to be agreed between the parties.  In default of agreement, reference may be had to this Tribunal for directions on paper.  The parties should co‑operate in compiling and agreeing an agreed indexed and paginated bundle of documents.”

 

24.          That part of the Judgment was reflected in the order which was made on 14 October 2011, paragraph 4 of which provides:

 

“4. The parties are required to agree the precise circumstances of the appointment of Mrs Mapstone and in default of such agreement, reference may be made to the Employment Appeal Tribunal for directions in this regard.”

 

25.          As it was the Appellant’s appeal, and as the issue had been raised by it in the form to which we have referred, unsurprisingly, it seems to have taken the lead in securing agreement.  Unfortunately, Mr Matovu tells us, and we fully accept from him, that he was not involved in this process but matters seem to have reverted to Ms Bibi.  Suffice it to say that on 13 December 2011 she wrote to the Respondent’s representatives, the Newport CAB, asking them to agree the following note.  That contains three paragraphs, each of which refers explicitly to what happened, or what the parties understood, at the remedies hearing.  The fourth paragraph reads as follows:

 

“4. No reference was made to the Regional Judge.”

 

26.          The response of the Claimant’s representative to that endeavour to agree a note was the production of a four‑paragraph response, very much mirroring the four paragraphs produced by Ms Bibi, and in particular paragraph 4 reads in identical terms:

 

“4. No reference was made to the Regional Judge.”

 

27.          There was, however, disagreement as to paragraphs 2 and 3 of the note.  That seems to have led to an enquiry by both parties as to whether there was sufficient agreement for the hearing of this appeal to go ahead.  It seems that the focus of the concern was whether the disagreement over the precise terms of paragraphs 2 and 3 were such that it would require further directions.  At any rate, the matter was referred to Langstaff J, now President of the EAT, who in his letter on 20 April 2011 said as follows:

 

“There is sufficient agreement on paper between the parties for the matter to proceed to a Full Hearing as ordered earlier, and to the same timetable.  All four notes (the two drafts proposed by the Appellant, and the two preferred by the Respondent) will be put before the Appeal Tribunal, which will note that two particular points are agreed, but that save for allegedly tendentious language the others are not disputed as being factually incorrect.”

 

28.          Mr Matovu has presented his argument on regulation 9(4) on the basis that what was agreed between the parties is evidence which should persuade us that the appointment of Mrs Mapstone to the Tribunal which was to hear the remedies hearing was invalid, because it did not involve either the President, Vice President or Regional Employment Judge as is required, explicitly, by regulation 9(4).  His point is a stark one.  If the Regional Employment Judge or President or Vice President were not involved in the process by which Mrs Mapstone was appointed to sit on this Tribunal on that morning, then the Employment Tribunal was invalidly constituted and everything that it did at the remedies hearing would be of no legal effect.

 

29.          On the other hand, if one or other of the President, Vice President or Regional Employment Judge was involved in the appointment of Mrs Mapstone then the Tribunal would have been validly composed.  The questions in the appeal would then revolve around the Tribunal’s decision to press ahead as then constituted and to refuse to accept the arguments of the Appellants why they should not proceed on that day but, implicitly, should adjourn to await the availability of Mrs Phillips so that the liability hearing Tribunal could hear the remedies issues.

 

30.          We are not satisfied that what appears in the two notes as to what happened does constitute evidence sufficient to enable us properly to determine whether the Regional Employment Judge was involved in the appointment of Mrs Mapstone.  There is no sensible basis upon which either of these documents can be read as emanating from enquiries made of the Employment Tribunal office about the precise circumstances in which Mrs Mapstone was appointed to this Tribunal panel. Rather, it seems to us to be clear, and Ms Wilkinson for the Claimant has urged this upon us, that what is meant by the words: “No reference was made to the Regional Judge” refers to the absence of any reference to the Regional Judge in the course of the hearing as reflected in the full Reasons given by the Employment Tribunal.

 

31.          As we have indicated, the issue about the composition of the Tribunal, and whether the remedies hearing should proceed with the Tribunal thus composed, was the subject of many and lengthy applications.  The Tribunal, in the course of its decision, has identified the various strands of the argument put forward by Ms Bibi on behalf of the Appellant and it is clear that the question of the validity of the appointment under regulation 9(4), and in particular the involvement of the Regional Employment Judge, was not referred to at all at that stage.

 

32.          We are aware that there is a legal doctrine to the effect that it is to be presumed that, that which was required to be done formally has been done. There is an argument that, in the absence of any evidence to suggest otherwise, we could determine this appeal on the basis of that presumption.  We are satisfied that, if we were to do so, this appeal, at any rate on that ground, would not succeed because it seems to us that on no sensible basis can what was agreed between the parties as having happened at the hearing be in any way of evidential significance, let alone conclusive, on the validity of Mrs Mapstone’s appointment to the Tribunal for that hearing.

 

33.          However, it is fair to say that the issue of the validity of Mrs Mapstone’s appointment under regulation 9(4) was raised by Mr Matovu in his skeleton argument for the preliminary hearing before the EAT. It is also clear that the EAT was concerned that this issue should properly be dealt with, which was why the order made was made in the terms that it was.  Unfortunately, the Appellant, whose appeal this is, has failed, and, we would venture to suggest not for the first time in this case, properly to address the issues that it has raised. It has failed to take what, we would have thought, would have been the obvious step, namely to enquire of the Employment Tribunal, and in particular the regional office, of the processes as a result of which Mrs Mapstone came to be sitting on the Employment Tribunal on that day and, in particular, whether the Regional Employment Judge was involved in that process and, if so, to what extent.

 

34.          In our judgement it is hopeless for the Appellant to put in “evidence” which amounts to no more than that nobody mentioned it in the course of the Tribunal hearing.  In the highly unusual circumstances of this case, where the issue has been raised by the Appellant, because of the emergency situation to which the Employment Tribunal was responding, it is obvious that some enquiry should have been made, by the Appellant, of the Employment Tribunal office and/or the Regional Employment Judge so as to satisfy what the EAT had ordered, namely that the precise circumstances of the appointment of Mrs Mapstone should be agreed between the parties.

 

35.          With great reluctance, we have concluded upon the application of the Appellant, that we have no option but to adjourn this appeal in order that that issue may be pursued.  We direct that the Regional Employment Judge for the Cardiff region should, within 28 days, respond to the following question:

 

“In relation to the hearing of the Remedies Hearing on 20 April 2011 at Cardiff between Ms R Buchanan v. Freedom Choice Care Limited, and in particular the question of substituting a member of the Tribunal for Mrs Phillips, who was unavailable that day, what, if any, role did you, the Regional Employment Judge, play in arranging for Mrs Mapstone to take the place of Mrs Phillips?

If you took no such role please explain why not in terms of the arrangements that may be in place for the appointment of Tribunal members to sit in employment tribunals at Cardiff, whether generally or on that day, or in the circumstances of the non‑availability of a member of an Employment Tribunal to sit on a particular day or in respect of a particular hearing.”

 

36.          We have been asked by Mr Matovu to ask the Regional Employment Judge to give some form of reasoned justification for his appointment of a third member to take the place of Mrs Phillips.  In our judgment that would not only be unnecessary but would be improper.  The issue raised by Mr Matovu is a mechanical one but a stark one.  It is the question whether, in accordance with regulation 9(4), the Regional Employment Judge was involved in the selection from the appropriate panel of Mrs Mapstone in substitution for Mrs Phillips.  If her appointment was validly made then all questions as to whether the Tribunal thus composed should have proceeded to hear the remedies hearing become a matter of case management to be determined by that Employment Tribunal, not by the Regional Employment Judge.  Accordingly, all that is required of the regional Employment Judge is confirmation, one way or the other, of his involvement or non‑involvement and, if non‑involvement, what explanation he might have for that state of affairs.

 

37.          For the avoidance of doubt, if the position is that the matter was dealt with by either the President or the Vice President, then it would necessarily follow that they should in those circumstances be asked to provide information for the EAT, but that would not arise unless or until the Regional Employment Judge had responded to the request which we have made.

 

38.          The outcome of this, therefore, is that the full hearing of this appeal must be stayed for 42 days in order to give the Regional Employment Judge the opportunity, within 28 days, to respond to the request and for that information to be forwarded to the parties.  The hearing of the appeal should then be listed as soon as possible after that.  The hearing to be half a day.  There is no need for the full hearing to be reserved to this composition of the EAT.

 

39.          Ms Wilkinson who is a representative provided by the CAB to represent the Claimant has made an application that the Appellant should pay the costs in respect of the adjournment.  She has, very properly, pointed out that the nature of the contract which her organisation has with the Legal Services Commission is such that, in her estimation, the costs wasted as a result of the adjournment can be limited to five hours at the rate of £63.00 per hour and, accordingly, she makes an application that the Appellants should pay to the Claimant’s representatives the sum of £315.00 in respect of costs.

 

40.          Mr Matovu has sought to argue that no such order should be made.  In our judgment there is no reason why such an order should not be made.  This is the Appellants’ appeal.  The point which is now raised, which has obliged us to adjourn the hearing, was explicitly raised at the last minute in the skeleton argument.  The EAT conducting the preliminary hearing made clear that they ordered that the precise circumstances of the appointment of Mrs Mapstone were to be agreed.  The Appellant had the conduct of the appeal.  The Claimant did not have any representation at the preliminary hearing.  The Claimant did not have the skeleton argument of the Appellant at the preliminary hearing at which this point was explicitly raised.

 

41.          It could not, in our judgment, have been thought sensible for the Appellant, through their representative, Ms Bibi, to have considered that merely writing down what her recollection was of what happened at the hearing would be sufficient to nail this issue down. That was, in our judgment, unreasonable conduct in conducting the proceedings within regulation 34A (1) of the Employment Appeal Tribunal Rules 1993.  That is entirely the Appellant’s responsibility and, in our judgment, therefore, the responsibility for the adjournment, which has been forced on this Tribunal, lies four-square with the Appellants and, therefore, we are minded to order the Appellant to pay to the Claimant’s representative the sum of £315.00 by way of costs, which will be paid by the Appellant within 28 days.

 

 

 

Addendum by Wilkie J

42.          I have, since the hearing, considered whether the EAT has the power to make an order in respect of costs where, as here, the Respondent to the appeal is represented by a CAB, which does not charge her for its services, but where the expenses wasted by the adjournment have to be absorbed within its budget to the extent now claimed for.

 

43.          The power to make an order for costs under regulation 34(1) is to make an order that a party make a payment “in respect of the costs incurred by another party”.

 

44.          Sub-paragraph (2) states that “costs” includes fees, charges, disbursements and expenses incurred by or on behalf of a party… in relation to the proceedings…”

 

45.          In my judgment, the interests of justice require the question of the powers of this Tribunal to make such an order in these circumstances to be fully considered after each side has had the opportunity to research the matter and present the result of these researches before the EAT.

 

46.          I have, therefore, of my own motion, reviewed this decision on costs and now vary the order to the effect that the issue of the costs of this hearing, in the circumstances described above, shall be considered by the panel of the EAT considering the substantive appeal on the next occasion.

 

47.          Both Appellant and the Respondent to the appeal shall, if so advised, file a skeleton argument on this issue of costs, as well as any authorities to be relied on, on that issue, no later than 7 days before the next hearing of this appeal by the EAT .