Appeal No. EAT/679/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10th November 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MISS J W COLLERSON

	MR S M SPRINGER MBE

LINCOLN CO-OPERATIVE SOCIETY LTD	APPELLANTS

MR R GREENWOOD	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS J C WOODWARD
(Of Counsel)
Messrs Croftons
Solicitors
Television House
Mount Street
Manchester
M2 5FA

For the Respondent	NO APPEARANCE BY OR
REPRESENTATION ON BEHALF OF THE   RESPONDENT

	MR JUSTICE WOOD (PRESIDENT):  This is an appeal by the Lincoln Co-operative Society Limited from an Order made by a learned Chairman sitting at Lincoln dated 24th August 1992 whereby on a hearing whether or not a Notice of Appearance should be struck out.  He made no Order save an Order for costs against the Co-operative Society in the sum of £293.75 inclusive of VAT.  That Order was received by the Solicitors who were subsequently instructed by the Co-operative on the 27th or 28th September, at which time the Notice of Appeal which is dated the 28th September had been substantially prepared by Miss Joanne Woodward, but who was waiting the formal Order before signing the Notice of Appeal.

	The history needs to be recited in order to understand how the Order for costs came to be made.  

	By an Originating Application of the 2nd April 1992, the Applicant, Mr Greenwood, alleged that he had been unfairly dismissed by his employers the Co-operative Society.  A Notice of Appearance was entered by the Society in which it set out a substantial plea that Mr Greenwood, who was Projects and Maintenance Manager within the Works Department, was dismissed for gross misconduct and there were various headings reading:
"Lack of Control of Sub-Contractors

Failure to Account for Cash Receipts/Payments

Failure to Follow Instructions

Numerous Other Matters"

in which some six other items were set out.

	The Solicitors acting for Mr Greenwood applied to the Co-operative for Further and Better Particulars of that Notice of Appearance and also for copies of a number of documents.  Those requests were contained in a letter of the 22nd May 1992.  The Particulars requested spread over some 3 pages and as to the documentation it read as follows:
"Would you also provide us with copies of the following documents:-

1.Notes of all investigatory and disciplinary meetings and interviews appertaining to the investigation into the Applicant's conduct and his subsequent dismissal."

numbers 2, 3 and 4 are not material for our present purposes.

	The case for the Co-operative was being conducted by Mr Strode-Willis.  By a letter of the 22nd June he sent the Further and Better Particulars and also dealt with the matter of the documents.  Unknown to Mr Strode-Willis when he wrote that letter there had been an application to the Industrial Tribunal for an interlocutory hearing relating to the request of the 22nd May.  It will have been noted that the request for particulars was extensive and indeed it looks as if the documentation was moderately extensive.

	On the 10th June the Industrial Tribunal made two Orders.  Presumably those Orders were made on the request of the Applicant.  As far as the Co-operative Society was concerned they knew nothing of those Orders until subsequently.  Those Orders dealt with the Particulars, namely ordering the Particulars as requested in the letter of the 22nd May and secondly, ordering Discovery.  It is important to notice the terms in which the Order for Discovery is made it reads:
"You are hereby ORDERED on reasonable notice on or before 8 July 1992 to produce for inspection at:  13/14 Silver Street, Lincoln"

and I interpolate there, that is the address of the Co-operative Society.
"the document(s) referred to in the Schedule below and to permit copies to be taken."

So there the Order is to give inspection of the documents set out in the schedule below and to permit copies to be taken.  The Schedule reads:
"The documents specified in the letter from the applicant's solicitors dated 22 May 1992."

At no time did the Solicitors for the Applicant visit the Co-operative Society to inspect the documentation or to ask for copies of the documents which were produced for them. 

	By that letter of the 22nd June, and in ignorance of the Order as we understand it, they produced in fact and sent to the Solicitors for the Applicant, the documents which were requested in the letter of the 22nd May.  At the end of that letter of the 22nd June, Mr Strode-Willis says this:
"Documents discovered

(1)Minutes of meetings are not kept by the respondents.  Please find enclosed copies of hand written notes relating to the disciplinary interview, and notes taken at interviews with Staff and Sub-Contractors.  Full documentation including correspondence, reports and statements, will be forwarded once the respondents documents for tribunal are prepared."

then they deal with 2, 3 and 4 and nothing turns on that.

	Twenty-nine pages of documents were then sent and they were all that were sought under the original paragraph.

	The next thing that occurred was that by a letter of 24th June the Solicitors for the Applicant wrote to Mr Strode-Willis saying:
"We shall take our client's instructions on your further and better particulars, but in relation to discovery, we can tell you straight away that your response is not adequate.  The Industrial Tribunal Order of the 10th June, 1992 compels you to provide the documents requested.  [It did not] It is not sufficient to say that they will be forwarded at a later date or to say that contact should be made with Lincolnshire Police.  Please provide the documents requested in compliance with the Industrial Tribunal Order."

That letter is an essential misunderstanding of the process of Discovery and the Order made on the 10th June.

	On the 8th July a letter was sent by those Solicitors to the Industrial Tribunal saying:
"that the Applicant has not complied with the order of 10th June, 1992 . . . We enclose a copy of our letter to the Respondent's [Co-Operative Society] representative of the 24th June 1992 which sets out the extent to which the Respondent has failed to comply with the order."

We have already expressed our view upon that letter of the 24th June.

	It is notable that the letter of the 22nd June from the Co-operative Society to the Solicitors to the Applicant was not sent forward to the Industrial Tribunal.

	On that same date, the 8th July, Mr Strode-Willis wrote to the Solicitors for the Applicant referring to the two letters:
"In respect of your request in your original letter of 22nd May 1992 asking for notes of all investigatory and disciplinary meetings and interviews, I would indicate on behalf of the respondent that this request, as far as possible, has been complied with.  The full documentations which I refer to in my letter of 22nd June 1992 is the respondent's bundle of documents for the tribunal which as a matter of pre-tribunal courtesy I would forward in due course, as I trust you would yourself, and indeed it may be possible to have an agreed bundle."

and a copy was sent to the Regional Office of Industrial Tribunals.

	The distinction is made quite clearly in that letter between the documents that had been sought and requested in the letter of 22nd May and the bundle of documents being prepared for the hearing which would include those documents and others.

	The next thing that happened was that Mr Strode-Willis on about 29th July received a letter indicating that a hearing would take place on Monday 24th August at the County Council Offices, Newland, Lincoln as an interlocutory appointment and it goes on in this way:
"fixed for the respondents to show why an order should not be made to strike out their Notice of Appearance and debar them from defending on account of their failure to comply with the Order of the Tribunal dated 10 June 1992 for inspection of documents."

That wording of course, follows the original Order.

	Having received that Mr Strode-Willis wrote to the Industrial Tribunal on the 29th July 1992, trying to do his best to provide whatever was wanted.  He indicates there that he has met with the requests of the 22nd May, but goes on in the last paragraph:
"I would further indicate if further and better particulars or discovery of documents is still sought by the applicant's representative the respondents would confirm that they would be fully prepared to co-operate in the provision of such information as far as reasonably possible.  The respondents would further submit there is no need to consider striking out the Notice of Appearance in this case at a Interlocutory Hearing, and equally the respondents were not aware that any request for such a hearing had been made to the Tribunal Office."

	The answer to that letter was that the learned Regional Chairman insisted that the hearing stood for the 24th August, and so Mr Strode-Willis thought that he best send everything along, and on the 18th August he wrote to the Solicitors for the Applicant, with a copy to the Industrial Tribunal sending along all 31 documents which he thought was going to form the bundle for the hearing.

	It was clear therefore that by the 19th August everything that was going to be relevant for the hearing as far as the Co-operative Society can see had been produced to the Solicitor for the Applicant.

	The decision of the learned Chairman, to which we have already referred, included a number of statements in the Order.  The document is headed "Order" and reads as follows:
"Upon hearing the solicitor for the applicant and the representative of the respondents at an interlocutory hearing, IT IS ORDERED THAT:-

1.	It is recorded that the parties agree that the respondents have complied with the Order of the Tribunal dated 10 June 1992 for production of the documents specified in paragraphs 3 and 4 of the letter dated 22 May 1992.

2.	It is recorded that the respondents state that there are no undisclosed documents of the classes specified in paragraphs 1 and 2 of the said letter dated 22 May 1992.

3.	The application is to be listed for hearing in Lincoln - estimated length 2 days.

4.	The respondents are to pay the costs of the applicant's solicitor for their preparation and attendance today in the sum of £293.75 (inclusive of VAT)."

	We have been told by Miss Joanne Woodward that at the hearing the basis upon which the Order for costs was made was that there had been a failure to comply with the Order of the 10th June.  She has told us, on instructions, of a number of matters and how that hearing was arranged and conducted, we think it best not to repeat those matters nor indeed to make them as part of our reasons.  But in any event it is quite clear, rightly or wrongly, that Mr Strode-Willis felt dissatisfied with what had occurred.  We restrict our consideration of that hearing to what is essential to an understanding of Miss Joanne Woodward's submissions.  There is nothing before us in the form of the Order to indicate the basis on which the Order for Costs was made.  Under the Industrial Tribunal Rules, Rule 11 the following wording occurs:
"Subject to paragraphs (2), (3) and (4) of this Rule, a tribunal shall not normally make an award in respect of the expenses incurred by a party to the proceedings but where in its opinions a party has in bringing or conducting the proceedings acted [and here are the important words] frivolously, vexatiously or otherwise unreasonably the tribunal may make -"

and it deals with certain orders.

	We are unable to discover whether the learned Chairman based his decision to order costs on the words "frivolously" or "vexatiously" or "otherwise unreasonably".  We are therefore prepared to accept from Miss Joanne Woodward in the face of any other express finding that it was because there had been a failure to comply with the Order of the 10th June.  The only way in which that could have been a failure to comply would have been a failure to offer for inspection and to provide copies of the documents requested in the Applicant's Solicitor's letter of the 22nd May.  In that letter, we do not propose to repeat the paragraph dealing with the minutes of the meetings, however, we have before us the bundle that had been sent to the Applicant's Solicitors with the letter of the 18th August and there are only a few documents which could possibly be thought to have fallen within the request.  Those documents have been brought to our attention by Miss Woodward and the three of us here have inspected those documents.  We have looked at the request and we are quite satisfied that those documents did not fall within the requests of the letter of the 22nd May.  It may have been that the learned Chairman was persuaded by Mr Buckle, the Solicitor for the Applicant, that this was so.  In so far as it is a finding of fact, although it was not made, we are unable to accept it, because we have the whole of the evidence before us and the evidence before us and the only evidence that is relevant and available points to the contrary conclusion.  That finding of fact, if it was made, and there is no indication that it was, would have been wrong.  The evidence points in the other direction.  It is quite clear therefore, that the Co-operative Society had fulfilled its obligation to proffer for inspection and to allow copies to be made of those matters that were requested.  Miss Woodward has explained to us that the documents were not minutes or indeed notes of hearings of a disciplinary nature, they were aide memoires to the person who was going to conduct the hearing so as to remind himself of the points that he wanted to raise and they were reduced into typewritten form but they were not what had been sought.

	In any event the lay Members of this Appeal Tribunal, and I agree with them, take the view here that the Order was to offer for inspection.  They offered for inspection all the documents in the bundle, that was done in any event by the 19th.  There is considerable doubt whether, on any view, there was any breach and indeed, it seems to us that the Co-operative Society were acting entirely properly in the circumstances.  This misunderstanding may have occurred here because of a failure to appreciate the basis of discovery,  This was not a case for general discovery, this was an Order for specific Discovery.  The obligation is to produce documents for inspection and to allow copies to be made for the solicitors;  for the applicants to indicate that the obligation was upon the Co-operative Society to deliver to them documents is a misunderstanding of the situation and it may be that this is the source of the unfortunate outcome of this case.

	The learned Chairman was exercising a discretion as to costs.  It is a broad discretion, it is one which we would, and are, very reluctant to interfere.  We only interfere if we are satisfied on the basis of the Wednesbury rules that he took into account something he should not have taken into account, or he failed to take into account something that he should have taken into account, or that he reached a conclusion which is an untenable conclusion.  On the facts of this case we are quite satisfied that he was over persuaded by Mr Buckle that the documents to which Miss Joanne Woodward has kindly drawn our attention, were not within the original letter of request of the 22nd May.  He founded his decision on the basis that there had been a failure on the part of the Co-operative Society to comply with the Order of the Industrial Tribunal.

	Secondly, he probably was not informed that the documentation had all been produced by the 19th and therefore there was no necessity for this hearing whatsoever and one party or the other might well have so informed him.  So that, in fact, the hearing was unnecessary but it was not unnecessary due to any failure on the part of the Co-operative Society.  We are driven therefore, to accept the submission, so ably made by Miss Woodward, that there was an error in the exercise of this discretion here and the Order as to costs will have to be set aside.

	This appeal is allowed and the Order is set aside.

	* * * * * *

	We have heard the submissions by Miss Woodward seeking costs, having succeeded on her appeal.  It is right to say that in a letter to this Appeal Tribunal from Solicitors for the Applicant they had asked for costs in the event of the appeal being dismissed.

	A number of criticisms have been made by Miss Woodward of the way that this matter has been handled on behalf of the Applicant.  The Co-operative Society did not put the Applicant on notice but they will be seeking costs in the event of being successful, and in the circumstances therefore, we are not minded to make an Order for costs because the other side are not here.   However, the lay Members sitting with me are strongly of the view that this is very much a case in which they would be minded in the absence of clear explanations as to the reasons for the criticism which Miss Woodward had made, to make an Order for costs.  I tend to agree with them but for the moment I would rather reserve that clear opinion until I had heard rather more of the circumstances.  On what we know already I agree with them, but that might not be the ultimate conclusion when one had heard argument on the other side.  It follows therefore, that although we are of the mind to be extremely critical of this matter, we are not minded at the present to make an Order for costs against the Applicant of this Appeal.  

	There will therefore be no Order as to costs.

Miss Woodward:  Sir, there are two matters if I could ask if I could raise with you?  Firstly, it may be that I unintentionally misled the Court in relation to one aspect, I hope it is not relevant to your decision but as you specifically dealt with it I think it is important that I mention it at this stage.  I am not aware that they did not know of the Tribunal Order for Discovery when in fact they wrote the letter of the 22nd, what I in fact intended to say to you, if I did not, was that it was that they were not aware of the request that the matter should be set down for an interlocutory hearing, not that they were not aware of the Order, it was the second aspect.

President:  So, they were aware of the Order, I will correct that in the judgment.  Yes.

Miss Woodward:  I assume they were aware of the Order there is nothing to suggest to the contrary.  The second matter, if that does not affect your conclusion in this matter, is I would like to address the question of costs.  Bearing in mind the nature of this case it may be that I will not be successful but I wonder if I could address you very briefly in relation to them?  In my submission your discretion is slightly wider than that of the Industrial Tribunals and it is set out, as I am sure you are aware, in the Employment Appeal Tribunal Rules of Procedure, Rule 27(1) and where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or other incidental matters which do not apply here, then you can make an Order for Costs.  	I would submit that the whole of these proceedings were completely unnecessary and that in fact, I take it as far as to say that, the solicitors on behalf of the Applicant in fact acted almost in bad faith in this matter.  The representative of the Respondent, my submission, acted in good faith throughout, replied as promptly as was possible in the circumstances, bearing in mind the length of the various requests etc. and in fact, complied with the Order.  In my submission the letter to the Industrial Tribunal applying for an Interlocutory Hearing to deal with the question of whether the Notice of Appearance should be struck out, in light of the full response by the Co-operative Society was again in bad faith, and not to have notified the Respondents' representative that they intended to make such an Order and give them another opportunity to comply or to explain themselves, again I would take it as far as to say that that was in bad faith.  They did nothing throughout the course of the correspondence to support the Respondents' application, the Co-op's application on a number of occasions to the Chairman that they had complied with Discovery, both during the time limits and thereafter had done everything possible in all the circumstances.  I would also remind you of your words in the Judgment in that they did not, in fact, even attend the officers of the Co-operative Society to inspect the documents, so they made their request to the Industrial Tribunal for an Order for a draconian, a very draconian Order, they made that request without even visiting the premises at which the documents were available.  It may well be from the tenure of the letters that had they attended at those offices they could have taken whatever they wanted in relation to this case.  It is the position that the Applicant may well not be in funds.  He clearly has the backing of the trade union but it is unlikely that they would be responsible for any Order for Costs, my personal view is that it is the Solicitors that have acted in bad faith rather than the Applicant himself but I would ask you to consider in the circumstances that these proceedings where I submit it unnecessary in that it need not have come this far that in essence that the original proceedings were wholly unnecessary and that the proper Order for Costs on the last occasion should have been that the Applicant paid the costs of the Respondent's attendance and preparation on that date, obviously such Order not to be enforced without leave of the Court bearing in mind the tentative position.

President:  Have you given notice to the other side that you would be asking for costs today?

Miss Woodward:  We have not given notice, we were not aware that they were not going to attend until very recently.  They wrote to us and it is right that we did not actually receive that letter until you forwarded it to us warning us that they intended to make an application for costs.

President:  You mean you did not know about this letter to us of the 6th November.

Miss Woodward:  There were two letters that we were not aware of, we were not sent a copy of that letter in answer to the Notice of Appeal, we were not sent that two page letter that I have referred to.  Your learned Clerk kindly faxed that to us, I think, yesterday.  He, kindly sent us that when those who instruct me contacted the Industrial Appeal Tribunal in relation to potential documents for today.  In fact throughout they have never provided us with copies of documents that have been sent to the Tribunal, both here and before.  That is apparent from the bottom of their letters, who they sent them to, they have not sent any of the letters to us for us to deal with them.

President:  In the light of the facts that you have not asked for costs against them, there are three courses we can take.  We can adjourn this matter and give them an opportunity to be heard.  We can adjourn this matter and direct that they should attend to explain or thirdly, we could simply say that you have not given the notice whatever view we would have taken if you had.  That is the third point.  Set against all those you obviously, and those instructing you has put the costs which are probably going to be irrecoverable in any event unless . . .

Miss Woodward:  They may only become recoverable if he is successful against the Respondents.

President:  That is right.  So there might be a set off and so on and so forth, but I am inclined to think that course three is probably the best course but by all means turn round and take instructions if you like Miss Woodward, I am inclined to think that the course here is probably you have not given notice to the other side and therefore however strongly your clients may feel probably finance rules but. . .

Miss Woodward:  Sir, I was not aware of any rule that stated that we had to book them on notice.

President:  I think that is generally accepted.  For instance the Court of Appeal when they are ordering against the legal aid fund.  They give the legal aid a chance to come along and say so.

Miss Woodward:  I was not intending that you should make a direct Order today in any event, but yes, I think that is right.  It was mainly their attitude as set out in their letter of 6th November and also their earlier letter of the . . .

President:  Very well, do you want to say anymore, thank you very much.  I think the answer is they have not given notice and therefore we cannot make an Order for Costs but I think we ought to be very reserved in our view as we have not heard them but unless we had heard some explanation think there are grounds for the criticisms being made.

President then continues with the formal judgment which is recorded in the decision at page 8.