Appeal No. UKEAT/0441/04/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 August 2004

Before
HIS HONOUR JUDGE D PUGSLEY
MR D CHADWICK
MR M CLANCY

MS M JONES	APPELLANT

ROTHERHAM METROPOLITAN BOROUGH COUNCIL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ANTHONY WALSH
(Representative)	
For the Respondents	MR NICHOLAS HILL
(of Counsel)
Instructed by:
Rotherham Metropolitan Borough Council
Legal Services
Civic Building
Walker Place
Rotherham S65 1UF	

SUMMARY

Practice and Procedure

Issue of costs when adjournment request.

HIS HONOUR JUDGE D PUGSLEY

1.	This is an appeal from a decision of the Sheffield Employment Tribunal in which the Tribunal ordered the Applicant to pay a substantial sum, over £4,000, in costs.  The making of an order for costs is unusual in Tribunal hearings, it has to be said.  It is a matter which we have to have regard to in the light of the decision a Tribunal reached.  However, although unusual, it is not by any means unknown and there is specific provision of the Rules, in Rule 14 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001.

“14.	(1)	Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party’s representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make -
(a)	an order containing an award against that party in respect of the costs incurred by the other party.
…
(4)	Where the tribunal has on the application of a party postponed the day or time fixed for or adjourned the hearing, the tribunal may make orders, or the kinds mentioned in paragraphs (1) (a) and (1) (b), against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.”

2.	It would be a sad day if the position were to arise that the only people who could appear in Employment Tribunals were professionally qualified advocates.  It would effectively prevent many people from coming to a Tribunal and it would also be a serious loss to Tribunals because Tribunals recognize that in many circumstances representation of the highest order has been given by people who lack formal professional qualifications, be they acting for friends or acting on a charitable basis for Citizen’s Advice Bureau or as part of their jobs as trade union representatives and sometimes employers’ representatives.  No-one should be put in a worse position because they are not represented by professional advocates.

3.	What equally has to follow there are certain basic rules that have to be complied with.  Mr Walsh appears, as we understand it, as a friend in these proceedings.  He says he is not qualified.  He put before us a well-argued Skeleton Argument.  He will, we trust, forgive us if we say just now and again we felt, as we suspect a general practitioner might feel who has a patient who has spent the weekend looking up every entry in Black’s Medical Dictionary possibly, if we may say so, not the most recent edition.  At times we have rather hopped, skipped and jumped between different areas of the law.  But we will say this.  Mr Walsh has acted with considerable dignity.  He has taken the gentle hints as to where his best and most salient points are and we have found his submissions helpful.

4.	Really, at the nub of the ground of appeal, is his suggestion that the Tribunal was misinformed by Mr Fletcher that they were ready for the hearing on 26 March.  The basis for that which was put in the Skeleton Argument, is that when Mr Walsh took over this matter very near the hearing and made the application for adjournment.  Mr Walsh claims when he saw the bundle he realized Mr Fletcher was misleading the Tribunal in saying he was ready.

5.	That is a very serious allegation to make, but one can understand, if one may say, Mr Walsh making it and, out of inexperience, putting it as high as he has.  It arose in this way.  The bundle he had had certain statements which were undated.  What Mr Fletcher said in a statement to us that the statement had been prepared, finalised and as far as he recalled most had been approved by the witnesses on that day.  If there was a necessity to sign them that could have been done because the majority of the witnesses all worked in a building 5 minutes from his office.  Had Mr Nye, who then represented the Applicant, been ready to exchange statements, and Mr Fletcher had been unable to get the statements signed, then he would have sent them an unsigned version with an undertaken signed copy would be forwarded as soon as possible.  This, says Mr Fletcher, is a procedure regularly used in Employment Tribunals.
6.	As it was, this was not necessary, so he agreed with the Appellant’s representative, Mr Nye at the time, to postpone the exchange of witness statements until 16 March.  Thereafter he says he spoke to Mr Nye and he was told he was no longer instructed and he contacted Mr Walsh.  

7.	Mr Walsh, who was unwilling to arrange for exchange of witness statements before the hearing on 26 March, also said that Mr Fletcher was not truthful in saying at the hearing that the preparation of the trial bundle was done without any help from Mr Nye.  In fact there had been directions for order on 13 November 2003 providing for the preparation of the trial bundle to be agreed between the parties.

8.	Mr Fletcher took on that responsibility.  He asked Mr Nye in correspondence to inform him of the documents he wished to include in the bundle.  Mr Nye stated in correspondence he would forward such a list.  Mr Walsh has produced before us a letter of 4 January which he says shows clearly that Mr Nye was cooperating, but if you look at that letter carefully, if one may say so, it rather substantiates the point that Mr Fletcher was making, because the final point reads:

“I will write to you again shortly with my proposed list of documents to go in the final bundle”.  

Indeed, according to the statement made by Mr Fletcher we have no reason not to accept what he says is that he had made that bundle up in a sense of physically done it, and he had not heard from Mr Nye and during the week commencing 1 March he prepared a bundle which included all the disclosed documents.  He subsequently received a letter from Mr Nye dated 2 March (which actually arrived on 4 March, according to the date stamp) and that included a list of documents to be included, in fact had already been included.

9.	The decision of Mr G R Little is in this light where he says that, as far as Mr Fletcher is concerned, that:

“18.	…  Mr Fletcher had been obliged to complete the trial bundle without assistance from Mr Nye, as on Mr Fletcher’s evidence, Mr Nye had failed to indicate what documents he wanted in the bundle.”

in the sense that the bundle had been completed before he heard back from Mr Nye.  That is accurate.  We see no attempt to mislead the Tribunal on those matters.

10.	At paragraph 16 the Tribunal reviewed their costs jurisdiction.  It set out subparagraph (1) of the 2001 Regulations in Schedule 1.  It set out subparagraph (4) concerning the issue of postponements.  They then set out the general principles involving the awarding of costs.  The current ethos of proceedings in the Employment Tribunal is that costs at the conclusion are relatively rare in being awarded.  They do not, as in civil courts, follow the event.  It noted the distinction between Rule 14 (1) and Rule 14 (4) and it noted the decision of the Court of Appeal in Kovacs v Queen Mary and Western College and Others [2002] IRLR 414, that Tribunals are not required to take into account the means of a party, either in considering making an order for costs in principle or as to the quantum of such award.

11.	It then set out the conclusions on costs liability in the unreadiness of the case.  The Chairman points out that while he did not have Mr Nye in front of him:

“23.	(a)	…Mr Nye whilst not being a lawyer, has considerable experience of employment law and procedures specifically in race discrimination.  That arises from his former employment as a case worker and advocate in Sheffield Racial Equality Council.”

The Chairman expressed concern as to difficulty in understanding why Mr Nye and his client:

“…found themselves in the position they did a week before the hearing was due to commence.  The situation is all the more surprising when one learns exchange was not to take place because no statements had been prepared even in draft.  Whilst I am unaware of the length and range of the statements which witnesses other than the applicant herself would have made, it is quite clear that Mrs Jones’ statement in itself would have been a substantial document.  Indeed today Mr Walsh suggested that it might take 2 days for her to give evidence.  Whilst on the information before me I can find no proper explanation or excuse for Mr Nye’s apparent default, I consider that despite her health problems the applicant should have been on notice that, if she had not heard from Mr Nye about arrangements for the hearing and specifically about what evidence from her was going to be disclosed to the other side and presented to the tribunal, then alarm bells should have begun to ring some time considerably prior to 14 March 2004.  As it was clearly impossible for there to be a proper hearing of the complex issues involved in this case, without there having been prior exchange of witness statements it was inevitable in the circumstances exist on 19 March and an adjournment had to be granted.”

12.	The Chairman then went on to consider the various issues in some considerable depth and said that he was prepared to make an award of costs, both under 14 (1) on the grounds of reasonable behaviour and also on 14 (4).  He then went on to assess his costs at the sum of £4,240.

13.	The grounds of appeal are many and various.  May we say right away that in that the grounds of appeal suggest a rather contorted argument that the bundle contained matters of a sensitive nature which should not have been put into a bundle and they concerned people that had learning difficulties.  The answer to that is with respect to Mr Walsh that this is a situation that it is well known to courts in cases involving doctor/patient and schoolmaster/pupil relationships which come before the Tribunal.  The way of dealing with that is obviously to deal with it in such a way as not to disclose the name of a child or a patient.  We do not, if we may say so, give any great weight at all to the grounds of appeal that deal with that.

14.	Nor, if we may say so, do we give any weight at all to the allegations made about the bias of the Chairman.  The Chairman looked at the Skeleton Argument.  He has declined to comment on the affidavits which mostly concern the parallel case of Mrs Thomas, a case which was appealed to this Tribunal and at a preliminary hearing before Hooper J (as he then was) together with members, dismissed the appeal.  It is important that the rules of bias are firmly kept in mind.  Anyone who sits on a Tribunal or in court knows that at least one of the parties, and sometimes both, are going to be upset by the decision.  We can find absolutely nowhere in this decision anything which leads us to take the view that in any shape or form the Chairman was biased in the decision to which he came.

15.	Nor do we consider, as we have already indicated, there was any basis in which the Tribunal was misled by Mr Fletcher in this case.  The real responsibility is always difficult to determine where a person is represented, but we can find no error of law in the decision.

16.	We have possibly bent over backwards to admit the matters that Mr Walsh was anxious to admit concerning the bundle, because although this was not the subject of contention below we felt it only fair to do so out of an abundance of caution.  We can understand why Mr Walsh felt that there were matters that called for an answer.  That answer has been given in a statement by Mr Fletcher and we consider that in the circumstances of this case the Tribunal reached a decision which was within their discretion, that costs should be awarded, for the reasons the Tribunal gave.  It is a balanced judgment and whilst it may be that others may not have reached that decision we ourselves can find no basis upon which we can say it is an error of law for the Tribunal to have come to the decision that the application for an adjournment which was made was due to the failure to comply with the time limits.  The Chairman in all the circumstances was entitled to reach that decision and is one which we do not feel it is right that we can allow the appeal as to costs.

17.	During the course of this case reference has been made to the case brought by Ms Thomas.  We really do not feel that it would be appropriate for us to say any other than we cannot, by a collateral challenge, seek to undermine the process whereby that case has already been considered by a different division of the Tribunal and the appeal dismissed.

Conclusions

18.	Putting the matter very simply, we have, as a matter of indulgence, looked at matters from the Appellant’s point of view by looking at various documents and letting Mr Walsh quote from them.  We have read Mr Fletcher’s witness statement.  We see no ground at all of an error in law of the reasoning of the Tribunal.

19.	Further, we do not consider the whole issue as to the preparation of a bundle which involved vulnerable people as being an issue that in effect affects our decision and as we have said there are clear ways in which one deals with that.  We do not consider that anything that was put before us which suggests there is anything in the suggestion of bias.

20.	We therefore come to the view that the only appropriate order for us to make is to dismiss this appeal.

Costs

21.	In this case, almost inevitably, the Respondents have sought the costs of this appeal.  We do not criticise them for so doing.  The language used by Mr Walsh has been intemperate and ill-considered.  For the cost of a postage stamp our Tribunal system allows people to make allegations against others.  That is a right; but rights can be abused.  It can cause great pain.  Judges accept that as part of their job description.  We do not consider the allegations made against Mr Fletcher are fair.

22.	But we consider we should bear in mind two matters.  First, there is a filtering process and this is a matter Mr Walsh was allowed to ventilate before a full hearing.  Secondly, to criticise Mr Walsh may be to apply the wrong yardstick.  If Mr Walsh was a professional advocate, we would have given serious consideration to reporting him to a disciplinary body but he is not.  He made the speculative allegation Mr Fletcher was lying.  It is a very grave allegation to make.

23.	We think in the exercise of our discretion we do not attach the criticism we would attach to Mr Walsh if he was acting in a professional capacity rather than acting for a friend.  

24.	Secondly, there is the argument that an order was made for this case to go to a full hearing.  We have a discretion and in the interests of humanity we exercise this by saying we do not consider this is an appropriate case to award costs.  The Appellant has a heavy burden of costs to meet.  We do not stigmatize Mr Walsh’s approach in the way we would had he been a professional advocate.

25.	Appeal dismissed.  No order as to costs.