Appeal No.	 EAT/144/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 February 1999

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MR J A SCOULLER

SHERWOOD PROPERTY MANAGEMENT	APPELLANT

MR D KINGSTON AND MRS G KINGSTON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	
For the Respondents	MR D KINGSTON
(In Person)	

	JUDGE PETER CLARK:	The history of this matter is as follows.   By Originating Applications presented to the Exeter Employment Tribunal on 27 August 1997 the two Applicants, Mr and Mrs Kingston, claimed compensation for unfair dismissal and damages and declarations of unauthorised deductions from wages against the Respondent, Mr Terence Sherwood, trading as Sherwood Property Management.  They alleged that they had been employed by the Respondent as managers of his letting business in Taunton from March 1995 until 13 June 1997, when he gave them an ultimatum, resign or be dismissed.

	By a Notice of Appearance dated 21 October 1997, the Respondent indicated that he did not resist the applications.

	The case came on for hearing before a full Tribunal sitting at Exeter on 22 October 1997.  There was no issue as to liability.  The Tribunal awarded each Applicant compensation for unfair dismissal of £11,732.69; a joint award of £1,734.49 in respect of outstanding bonus payments; an award to Mr Kingston in the sum of £34.63 in respect of unlawful deductions from his salary and £144.23 to each Applicant in respect of outstanding holiday pay.  Grand total £25,512.95.

	Following that decision, later promulgated with Extended Reasons on 4 December 1997, (the substantive decision), the Respondent consulted solicitors who made application for review of the substantive decision by letter of 6 November 1997.  The basis of the review application, directed to the awards of compensation of unfair dismissal, was that the Applicants were originally engaged on a self-employed basis and could not claim two years continuous service as employees so as to qualify for unfair dismissal protection.  That point had not been taken at the original hearing.

	By a decision with reasons promulgated on 26 November 1997 the Chairman of the original Tribunal summarily dismissed that review application on the grounds that it had no reasonable prospect of success, (the review decision).

	By a Notice settled by Counsel and dated 5 December 1997, the Respondent appealed to this Appeal Tribunal against the review decision.  

	That appeal came on for preliminary hearing before a division of this Tribunal presided over by Judge Byrt QC on 12 March 1998.  It was allowed to proceed to a full appeal hearing.

	The full inter partes hearing was listed for 9 November 1998.  On that day the Applicants appeared before Judge Pugsley and members; the Respondent did not appear and was not represented.  It then transpired that the Respondent had parted company with his legal advisers some three weeks earlier.  The Respondent himself had made no contact with the Appeal Tribunal or the Applicants.

	This Tribunal ordered that the Respondent inform the Tribunal within 21 days whether he wished to pursue his appeal.  He has not responded to that direction.  Accordingly the case was listed for disposal today.  Again the Respondent has not attended, although the Applicants are before us.  In these circumstances we shall dismiss this appeal.

	Having dismissed the appeal, Mr and Mrs Kingston make application for their cost in the appeal.  They have provided us with a break down of the expenses incurred, which reads as follows:
Clerical and legal advice since early 1998	£380.00		
12 March 1998 - overnight accommodation, train/taxis	£90.00	per Applicant
	
9 November 1998	£90.00	per Applicant
	
23 February 1999	£90.00	per Applicant
	
Other meals - 6 journeys	£70.00		
Office stand in services - 3 days	£90.00		

	We have considered the application for those costs and expenses totalling £1,080.00 in the light of our powers under Rule 34(1) of the Employment Appeal Tribunal Rules 1993, which provides:
“Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that order party in connection with the proceedings.”

	First the clerical and legal advice since early 1998.  It seems to us, as it did to the division of this Tribunal presided over by Judge Byrt which considered the matter at the preliminary hearing held on 12 March 1998, that this appeal cannot be said to unarguable and in these circumstances we shall not make any award in respect of clerical and legal advice. 

	As to the costs incurred attending at the ex parte preliminary hearing held on 12 March 1998 that was entirely a matter for the Applicants.  There was no requirement for them to attend and therefore we shall not make an order in relation to those costs.

	As to the hearing on 9 November 1998, that was a full inter partes hearing, the Applicants were obliged to attend.  It was open to the Respondent or his then advisers to indicate that he would not be attending nor be represented on that occasion.  No such steps were taken; we regard that as unreasonable conduct on the part of the Respondent, and accordingly we shall order costs in relation to that aborted hearing.  Those costs will consist of £90 per Applicant for overnight accommodation and travel, £20 for meals and £30 for office stand in services for that day, a total of £230.

	So far as the cost of today are concerned, this case was listed for disposal and again it was not strictly necessary for the Applicants to attend, accordingly we shall not make an order in relation to the costs of today.  The upshot is that we make a costs order against the Respondent, Mr Sherwood in the sum of £230 in favour of the Applicants.