Appeal No. EAT/537/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 2 December 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MS S CORBY

	MR J A SCOULLER

MRS D CUSWORTH	APPELLANT

ARISTON DOMESTIC APPLIANCES LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr M D Ross
Solicitor
Messrs Paris Smith
      & Randall
9 College Place
Southampton
SO1 22D

For the Respondents	No appearance by or
on behalf of the
Respondents

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application which was dated 12 March 1990, Mrs Daphne Mary Cusworth complained that she had been constructively dismissed and also raised the issue of redundancy pay.  The Respondents being her employers Ariston Domestic Appliances Ltd.  Her husband had been a lay member of Industrial Tribunals.  She was also being helped and advised by Brigadier O'Dell who had been a part-time Chairman of Tribunals sitting from time to time in the Southampton region and the Bristol region, although the latter was not known until later on.

	As a result of those facts when her Originating Application was issued in the Southampton region it was transferred to Bristol and arrangements were made for it to be heard there.  

	A date was fixed for the hearing at Bristol but this was vacated at a very late date by the office in Bristol because it was felt that there was not enough time for the case to be heard at Bristol.  Complaints were made by solicitors for the Respondents and comments were made by Mr Cusworth on behalf of his wife but nevertheless that date was vacated.  There had been an earlier application by the Respondents to move the case to London which the Cusworths had resisted and had succeeded in that resistance.  However, there was a further application after the date of 4 June 1990 had been vacated and that matter was left in abeyance.  On the 30 June 1990 it had not been decided and on that date the Cusworths went on holiday to Scotland for two weeks until 14 July.  On 14 July they came home to a bundle of letters awaiting them and they included the following.

	First of all there was a letter of 3 July from the Bristol Regional Office saying that the matter had been transferred to London (North), first because of the postponement rendered necessary on 4 June and possible further delays, and secondly because Brigadier O'Dell had in fact on an earlier occasion sat at Bristol, and thirdly it was thought to be a more convenient venue for the Respondents' solicitors and witnesses.

	Having received that the Cusworths also received a notice dated 11 July 1990 from London (North) indicating that the matter would be heard on Monday 6 August 1990.  As a result of that Mr Cusworth wrote a letter on 19 July to the Bristol Regional Office asking them to reconsider the question of transferring the case to London.  He sent a copy of that letter to London (North), a copy to the solicitors for the Respondents and a copy to Brigadier O'Dell.  That document was received as we now know, at London (North) on 23 July 1990.

	Mr Cusworth had no acknowledgement of that document at all and on 27 July, which is a Friday, he telephoned a clerk, apparently a Mr Heyman, at London (North) and asked him about the whole matter.  He was told that the letter was in the post telling him that the case would remain in London.  That letter was dated 27 July and was received by Mr Cusworth on Saturday 28 July.  Over the weekend, and it is not certain because there are two hand-written documents one dated 29 July which is said to be a copy of the document he actually sent, which was dated 30 July, but over that weekend Mr Cusworth wrote a letter to the London (North) Regional Office which read as follows:
"Thank you for your letter of 27 July indicating your decision that the case remain transferred to London North ROIT.

It is with reluctance that I must advise you that the applicant now wishes to withdraw her application as she feels unable to continue with the case.

Please accept this letter as formal notice of withdrawal and request to advise the other parties of this fact." 

	That was received by the Regional Office of London (North) and is so stamped, on 31 July 1990.  The timetable therefore was this:  that on Tuesday, that being the 31st, that letter from Mr Cusworth was received and the hearing was due to take place on the following Monday 6 August.  The letter remained in the office and was not given effect in the sense that the other side were not notified.  Mr Cusworth heard no more.  Over the weekend he was worried about this matter and on Monday 6 August he telephoned and asked for Mr Heyman.  He wanted to make sure that his letter of withdrawal had been received.  Mr Cusworth was told that Mr Heyman was not available and asked to ring back in half an hour.  He stressed that he wished to confirm that his withdrawal had been received.  He waited for about five minutes and a clerk came back and said: "OK the case has been withdrawn".  Mr Cusworth commented that he would have liked to have received some acknowledgement and that was the end of it.

	The Tribunal however met on that Monday 6 August and the Respondents turned up with Counsel, solicitors and witnesses.  Naturally when there was no appearance by the Applicant after the matter had been dismissed on withdrawal there was an application by the Respondents for costs and by that stage the letter had been produced.

	The Decision of the Tribunal was unanimous, that the case was dismissed and that the application by the Respondents for costs would be dealt with at a date to be fixed.  The Reasons on that occasion, 6 August, which are dated 8 August, stated as follows:
"The applicant's representative wrote to the Tribunal withdrawing this application.  Unfortunately the respondents were not notified on receipt of that document, which was mislaid in the Tribunal office.  As a result, the respondents attended today.  When they were told of the withdrawal, an application for costs was made.  The Tribunal takes the view that that application can only be dealt with fairly if both sides are given an opportunity to make representations.  A date will therefore be fixed for the hearing of the application for costs.  However, it is recommended by the Chairman that both parties agree to rely on written representations only in order to save both parties the further expense of attending."
	The further hearing took place on 14 September.  Solicitors for the Respondents did not attend.  They were unable to do so.  They relied, as had been suggested, on written representation and it is fair to note that they wished two points to be considered which they set out in a letter to the Tribunal of 16 August;  on the second page in the middle they say the two points are as follows:
"1.The failure of the Tribunal Officers to inform the Respondent's or their Solicitors of the Applicant's husbands letter

	 2.The failure of the Applicant or the Applicant's advisers to inform the Respondents or their Solicitors of the Applicant's withdrawal."
	The comment is also made that they do not quite understand why the application is withdrawn at a very late stage when the law has not changed and it has merely been a change of venue otherwise the situation is as it was at the start of those proceedings.

	The hearing of the 14 September was heard by the learned Chairman sitting alone as he is entitled to do under the Rules.  Mr Cusworth appeared, but he also had put before the Tribunal written representations.  At that hearing the Learned Chairman awarded £500 costs against the Applicant Mrs Cusworth;  he summarises his views in para 5 of a written Decision which is dated 27 September 1990.  Para 5 reads as follows:
"All in all, I take the view that this is an appropriate case where an order should be made against the Applicant for a contribution to the Respondents' costs.  I understand that the Applicant is now unemployed although she has had part-time or casual employment and that the Applicant's husband and representative survives on a pension from British Gas.  It is my belief that justice will be done in this case if I were to make an order that the Applicant pays £500 by way of contribution to the Respondents' costs arising out of her late withdrawal of the claim.  It will be for the Respondents to decide whether they wish to spend more money chasing the debt, in which event no doubt the Registrar in the County Court will make an appropriate order after going into more detail about the Applicant's  means.  There will be an Order for the Applicant to pay the sum of £500 towards the Respondents costs accordingly."
	It is to be noted from that paragraph that the Order for costs is made 
"arising out of her late withdrawal of the claim."
	In para 1 of those Full Reasons the learned Chairman refers to the proceedings alleging constructive dismissal and claiming redundancy payment and then he says this:
"It is not necessary, nor is it pertinent, for me to go into the facts of the case or its merits."
	Thus is is quite clear that, on that finding, he is indicating that he is dealing with this case purely on the issue of what occurred over the failure to notify withdrawal and not out of the substance of the matter, otherwise he would not have said that and secondly, he would have needed to have examined the merits of the case and the unreasonableness in far greater detail.  

	In para 2 of the Decision he gives a brief outline of the history of the matter.  In para 3 he looks at the bill of costs which was submitted and perfectly properly submitted by the Respondents' solicitors in the sum of £1,612.20 and criticises some of the figures.  Then in para 5 he gives his reasoning for the decision which he reached.  The solicitors for the Respondents be it said, have not appeared on this Appeal which is a full Appeal, after I sitting with different lay members had thought that the matter should come forward for a full hearing.  They have agreed with Mr Ross for the Appellants before us, that there will be no question of costs of today and they feel that the costs issue does not warrant their attendance today.  That is perfectly understandable as Mr Ross has explained to us and we accept their reasoning for not being before us.

	As to para 4 Mr Ross makes three criticisms but before we can understand those criticisms it is right that we should set out in our Judgment the contents of that paragraph.  The Learned Chairman says this:
"With regard to the Respondents' claim for costs against the Applicant, I take the view that this was a very late withdrawal of the claim.  The Respondents have been put to a certain amount of trouble and expense and I accept that the lateness of the withdrawal, in the circumstances I have outlines, lends some support to the view that the Applicant, although she has not behaved vexatiously has behaved in such a way as is capable of being described as frivolously or at least unreasonably in the conduct of the proceedings.  In the civil courts if a withdrawal takes place, there is an almost automatic right of the defendant to claim costs and to do so successfully.  The Tribunals have not always adopted the same approach as the Courts but to my mind we must follow a parallel one to cases where a claim is pursued, with some figure, and is then withdrawn.  I do not place much, if any, weight on Mr Cusworth's reliance on the fact that parties may appear without lawyers.  That was open to the Respondents but they chose to instruct solicitors and counsel.  Mr Cusworth could have conducted the case himself, as he said he would have done had he been told that the hearing was to go ahead notwithstanding the withdrawal.  I take that with more than a pinch of salt.  I am also influenced by the fact that Mr Cusworth has had specialist experience in his sitting as an Industrial Member and should have known enough about what goes on in the Tribunals and at least what is considered as courtesy between parties and representatives.  There is some blame to be laid at this door for not notifying the Respondents (with whom he was in contact in correspondence) of the withdrawal.  I do not think it was right for him to rely on the Tribunal notifying the other party.  He would have saved at least a day, possibly tow, of the Respondents' costs had he made a phone call or sent a fax."
	Before considering Mr Ross' submissions we must remind ourselves that this Order was made in the exercise of a very wide discretion by the Learned Chairman.  The law is perfectly clear.  He had power to make that decision and this Court can only interfere on the basis of the WEDNESBURY RULES either that he took into account something he ought not to have taken into account or that he failed to take into account something which he should have taken into account or the decision was plainly wrong.

	This Court has reached the decision that this decision cannot be upheld but we must give our analysis of the situation in some detail and with some care.

	The first criticism made by Mr Ross is that having in the first paragraph of the Decision, expressly indicated that the conduct of the case and the weight of the case and the contents and merits of the case were not to be considered and had not been considered, the Learned Chairman then goes on in para 4 as follows:
"..although she has not behaved vexatiously has behaved in such a way as is capable of being described as frivolously or at least unreasonably in the conduct of the proceedings."
	That, as Mr Ross submits and we accept, can only be relevant if one is looking back at the merits of the case in that way and having discarded that as a basis the Learned Chairman then reintroduces it at a later stage.  He also introduces the expression a little later:
	 "a claim is pursued, with some vigour, and is then withdrawn.". 
	 That would also indicate the way in which the matter has been handled in the past, quite apart from the question of withdrawing 6 days before the hearing.

	Secondly, he submits that the phrase which refers to the approach of the ordinary Courts indicates a misdirection.  The Learned Chairman says this:

"..The Tribunals have not always adopted the same approach as the Courts but to my mind we must follow a parallel one to cases where a claim is pursued with some vigour, and is then withdrawn."
	The basis upon which the costs are awarded in the Industrial Tribunals is based on the Rules of the Industrial Tribunals and although in the ordinary Courts the overall general rule is that costs follow the event, that is definitely not the basis upon which costs are awarded before Industrial Tribunals.  The Rule governs the situation.

	Thirdly, Mr Ross comments that the relevance of Mr Cusworth conducting the case is not apparent but really the third point he takes is that there is no Rule by which a party is required to notify the other party of his withdrawal.  It might have been notified perhaps as a matter of courtesy but here Mr Cusworth had requested the Tribunal to notify the other party and that letter was received on Tuesday 31st.  That gave four working days in which either a letter or telephone communication could have been given.  One looks to see perhaps what had been the practice in this particular case as between the parties.  It is clear that Mr Cusworth had sent a copy of his letter of 19 July to the solicitors for the Respondents and looking back we find that it is really some long time before that since he had had carried out that particular practice.  Likewise we look back through the correspondence to see whether the solicitors on all occasions sent copies to Mr Cusworth and clearly they did not.  They were having correspondence with the regions which was not being copies to Mr Cusworth and it seems to us therefore that in neither case were copies meticulously being sent to the other side as might have been thought to be desirable.  But one must remember that with Industrial Tribunals you often have people acting in person and even though Mr Cusworth was a lay member of Tribunals he may not have conducted proceedings in the past.

	We therefore take the view that on both the second and the third point there is an error here in the direction which the Learned Chairman gave to himself, or alternatively in the fact that he took into account matters which he should not have taken into account in the circumstances and therefore that the Decision is flawed.

	There are however two other points taken by Mr Ross, each of which in our judgment has merit.  First, that when one is looking at the costs thrown away it is necessary to attribute those costs to the actual failure to notify a withdrawal.  Here for instance Counsel's brief may have been delivered long before the withdrawal and it is only to those costs that the issue really turns.  There is no attempt here to identify the costs thrown away by the failure to withdraw and if in fact the costs awarded were towards the earlier conduct, as we have already indicated it was not to that that the Learned Chairman said he was directing his mind.

	The last issue is this.  The means of the Applicant were not examined and Mr Ross takes the point before awarding an Order it must either be for the Court to assess the means or to say that the award would not be enforced without further Order of the Court or Tribunal.  It is fair to say that the Learned Chairman has passed on that matter to the District Judge who would be dealing with the enforcement of any Order and he of course could make an Order by instalments, but in any event it seems to us desirable that some investigation means is probably to be made in cases where costs are being awarded.  We have so indicated in the past in some other matters.

	It follows therefore that this decision cannot in our view stand. We allow the Appeal.  There were no basis here on the grounds shown for an order for costs.