Appeal No. EAT/754/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3 May 1995	

	Before

	HIS HONOUR JUDGE J HULL QC

	MR R H PHIPPS

	MR D J JENKINS MBE

MR & MRS SHARPE	APPELLANTS

MISS J BOLDY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	NEITHER PARTY 
PRESENT NOR REPRESENTED

For the Respondent	

	JUDGE HULL QC:   This is an appeal, or was an appeal, by Mr and Mrs Sharpe against a decision of the Industrial Tribunal sitting at Exeter on 21 September 1992.  A decision was promulgated on 28 September.

	Miss Boldy, the Applicant before the Tribunal, had complained that she, being a care assistant employed by Mr and Mrs Sharpe at an establishment which was provided as a care home for the mentally ill at Torquay, had been treated with sex discrimination in her employment.  She has been discriminated against and unfairly dismissed, the nature of her case being that she had been dismissed when it was discovered that she was expecting a child.  Mr and Mrs Sharpe opposed that and said, that she had been dismissed because of her negative attitude.  

	The Industrial Tribunal enquired into all that and concluded that she had, indeed, been subjected to discrimination on the grounds of her sex and that she was entitled to compensation; and they assessed compensation in the sum of £1,842.  

	Then there was a Notice of Appeal of 19 October 1992.  Mr Sharpe put that in, saying that he was acting on behalf of himself and Mrs Sharpe.  It is quite clear, when one looks at what is in the Notice of Appeal, that Mr and Mrs Sharpe are really making points of fact and argumentative points which we cannot consider because we are a tribunal purely of law.  

	The appeal dragged on.  There was an appointment on 4 November 1994 for the hearing of the appeal.  On that occasion there was no attendance by the Appellants.  The Respondent did attend and was represented and complained very strongly about the costs that were being incurred.  We promised to take that matter into consideration, but we were obliged to adjourn the matter because it seemed doubtful whether Mr and Mrs Sharpe had been properly served with notice of the date of the appeal.  

	It now appears that that difficulty was caused by the fact that at least two Solicitors had been employed, from time to time, and notice had not been given to this Tribunal of the fact that one of the Solicitors, with whom the court had been communicating, no longer acted for the Appellants.

	There are other letters before us which have elucidated the matter to some extent.  On 20 December, in a letter which is at page 9 of a new bundle, Mr Sharpe wrote that Counsel had advised against his bringing the appeal.  Nonetheless, he felt he had not been treated fairly and wished to continue with the appeal.

	Then, in due course, there were letters from Solicitors instructed by Mr Sharpe that, in fact, Mr Sharpe did not wish to continue with the appeal and neither, apparently, did Mrs Sharpe; there have been at least two letters saying that.  

	It appears to us that this is a case where, first of all, the appeal itself showed no grounds on which we could interfere.  Secondly, we now have confirmation from Mr Sharpe himself that Counsel had advised against bringing the appeal.  Nonetheless, the appeal was persisted in; there was a quite unnecessary hearing which turned out to be a fiasco because Mr Sharpe claimed he had not been served and evidently had not heard about it, we were bound therefore to adjourn it and after all that, he said that he wanted to continue with the appeal and then eventually he said he wanted to discontinue it. 

	The case is listed today because Miss Boldy, having received the not very high award, complains that large sums have been incurred by her by way of costs in preparing to resist the appeal.  She says that her legal aid bill is £802.  We have no reason to doubt that.  She has had to make a contribution of £298.50 and she asks for costs so that she can keep the award which was made to her and in those circumstances this case is listed so that we can consider the question of costs.  

	We have no doubt, having considered the matter as carefully as we can, that this was undoubtedly an unreasonable appeal.  It was an appeal which was based on no grounds which we could entertain and it was persisted in in spite of the matters which I have referred to and it is now withdrawn after Miss Boldy has incurred a legal aid bill for her own costs of £802, which is getting on for half the award which was made to her.  

	To make matters worse, Mr Sharpe is apparently now bankrupt.  We are not concerned with that, but his attitude so far as Miss Boldy is concerned is certainly not one which shows any anxiety to pay her any compensation ordered by the Tribunal.  He seems to be treating it as some sort of ordinary debt which the bankruptcy will absolve him from. 

	It does seem to us, having considered it, that this a quite unnecessary and unreasonable appeal within the meaning of our rules and we therefore have a discretion to order costs if we think it right to do so.  We are all of the opinion that this is a case in which it would be just to do so, and that the proper order for costs, in this case, is to indemnify Miss Boldy in respect of her taxed costs.  We are satisfied that those come to the sum of £802 and knowing, as we do, that costs are always taxed on a conservative basis, it appears to us that that is a reasonable sum to order.  No less a sum would give Miss Boldy an indemnity.  

	If we were say to make an order for £500 then the whole of that sum would be taken by the Legal Aid fund, who would clearly, under their charge, have a prior right to that sum.  That is a matter which we have considered but nonetheless, the true ground of our decision is not the effect of the Legal Aid Committee's charge on the money, but our undoubted feeling that justice requires us to make an order which will indemnify Miss Boldy so far as we properly can in respect of costs, which have been wasted by a quite unnecessary and unreasonable appeal.  

	We therefore order costs and we assess the costs at £802.