Appeal No. EAT/0357/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 August 2002

 
Before
HIS HONOUR JUDGE D SEROTA QC
MS H PITCHER
MRS M T PROSSER

 

MR S DEMAN	APPELLANT

 

 
1) LONDON BUSINESS SCHOOL	RESPONDENTS
2) PROFESSOR G BAINS

 
Transcript of Proceedings
 
JUDGMENT
 
Revised

 

 

 

 
	APPEARANCES

 

For the Appellant	MR J DAVIES
(of Counsel)
Instructed by:
Messrs Kirk & Partners Solicitors
25-27 Passey Place
London SE9 5DF	
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT	

JUDGE D SEROTA QC
 
1	This is an appeal by Mr Suresh Deman against a decision of the Employment Tribunal at London (North) of 19 January 2001.  The matter came before this Tribunal, chaired by His Honour Judge Pugsley, on 17 December 2001 when a number of grounds of appeal were struck out but permission was given for this appeal to proceed on the basis of costs only.
 
2	We should explain that the Employment Tribunal had dismissed claims by the Applicant and had made an order for costs against him in his absence.  Both before His Honour Judge Pugsley and before us today Mr Deman has had the great benefit of being represented by Mr John Davies and we are indebted to Mr Davies for the brevity and also for the quality of his submissions.
 
3	Mr Deman was making complaint against the London Business School and a professor, Professor Bains, partly in relation to matters that had taken place in 1995 and appeared to the Tribunal and appeared to us to be hopelessly out of time.  He also complained in relation to allegations that he had not been short-listed for some posts in February 1998.  His complaint in relation to that was presented on 15 June 1998 and would appear to have been in time.  We express no views on the merits, or otherwise, of his application.
 
4	In September 1998 it would seem the Commission for Racial Equality was prepared to act on behalf of Mr Deman but it did not do so.  Matters came before a Regional Chairman on 14 October 1998, directions were given and a hearing was fixed for 3 days on 19 January 1999.

 
5	In November 1998 Mr Deman claims to have written a letter to the Employment Tribunal and asserted the letter disappeared under mysterious circumstances and he made allegations against staff of the Employment Tribunal.
 
6	On 2 November 1998 formal notice of the hearing for 19 January 1999 was sent, although I believe, as I have said, that that date had been fixed in October.  On 1 December a letter was written by Mr Deman to the Tribunal seeking an adjournment and complaining that various directions had not been complied with by the Respondents.
 
7	At this point in time, I think, only the first Respondent was represented and was represented by S J Berwin & Co.  The Tribunal maintains that it did not receive this letter, albeit, it has to be said that Mr Deman has produced a fax confirmation slip and an extract from his telephone bill that does suggest that this document was in fact faxed on 6 December.
 
8	Mr Deman then chose to go to India and had arranged to return from India at very much the last minute.  He appears to have been unwell while in India and his condition was exacerbated.  There is medical evidence to suggest that he was unwell but the medical evidence does not go so far as to suggest that he was unfit to attend the Tribunal and, furthermore, it seems to us, as it seemed to the Tribunal, to be extremely rash to leave the country and then return by a relatively long journey at the last minute.
 
9	A very late application was made for an adjournment and it was refused and it is right to say that it would seem that Mr Deman may have had something of a reputation for making bad applications and then seeking to adjourn them at the last moment but it is right to say that beyond the anecdotal evidence before the Employment Tribunal there was no firm evidence that he had in fact done this.  It seems to us wrong to have regard to anecdotal evidence on a matter of such gravity as this.
 
10	We should also point out that the Respondents had failed to comply with the Directions Orders.  At some time after 5 o’clock in the afternoon of 18 January a telephone call was made to Mr Deman seeking an address where its solicitors could courier a bundle.  The bundle, in fact, was produced on the morning of the hearing and was some 900 pages long.
 
11	The Tribunal’s decision was made on 21 January in the absence of Mr Deman.  It found that part of his application was out of time, part of it was unsubstantiated by any evidence as he was not there and the Tribunal considered that his conduct of the proceedings, rather than the merits of the proceedings themselves, was frivolous and vexatious and it acceded to a request to make an order for costs against him.
 
12	The matter proceeded further.  We have already mentioned the hearing before His Honour Judge Pugsley on 17 December 1999.  Mr Deman sought permission to appeal against that decision and indeed made various allegations against Judge Pugsley.  His application for permission to appeal was refused.  The appeal related, of course, to the decision of this Tribunal not to allow various grounds to go forward.
 
13	He sought permission to appeal from the Employment Appeal Tribunal to the Court of Appeal and indeed then sought an adjournment of his application.  Both applications were dismissed by Mummery LJ on 6 February 2001 and on 30 March Sedley LJ refused an application to reinstate an appeal.  Mr Deman did not leave matters there and sought permission to appeal to the House of Lords, which application was refused by Sedley LJ on 4 April 2001.
 
14	We have said that we have had the benefit of the assistance of Mr Davies, not only through oral submissions but also he has kindly provided a detailed Skeleton Argument.  He effectively makes two grounds of appeal.  The first is that the Tribunal should have given Mr Deman the opportunity of being heard on the question of costs.  Mr Davies submits that in Employment Tribunals, unlike the Civil Courts, it is not usual to make an order for costs.  An Order for costs can only be made in the circumstances where there has been, what might be regarded as, procedural or other misconduct by a party and that before making an Order for costs the Tribunal must give the parties the opportunity to make representations as to why such an Order should or should not be made.
 
15	We are not able to accept Mr Davies’ submission that whenever an Order is made in the absence of the party, if the Tribunal consider that an Order for costs is warranted, it is necessary to adjourn the matter so that an Order for costs can be considered at a later occasion, giving the Respondent to the application an opportunity to attend.  It seems to us that if an Employment Tribunal considers it appropriate to proceed in the absence of a party, it is entitled to make consequential Orders, including Orders for costs, in his absence.  Also, it is a matter for their discretion.  We certainly do not consider that the Employment Tribunal was wrong in the exercise of its discretion in failing to adjourn and deal with costs at a later stage.
 
16	However, Mr Davies also goes on to point out that the Tribunal failed to consider the conduct of the Respondent.  The Respondent is a substantial and indeed an internationally known business school, and it also has had acting for it well known solicitors, whose resources would certainly enable it to comply with the Orders that were made.
 
17	They should have provided the bundle of documents at least seven days before the hearing, yet as we have said a 900-page bundle was prepared and no attempt was made to serve it on Mr Deman until some time after 5 o’clock the day before the hearing.
 
18	It seems to us this is a matter that should have been taken account of by the Tribunal because had Mr Deman attended and sought an adjournment the overwhelming likelihood is that an adjournment would have had to be granted at the expense of the Respondents.
 
19	Witness statements were not prepared three days before the hearing; no attempt was made to serve them, again until the evening before the hearing.  No list of documents upon which the Respondent wished to rely was ever served, nor were facilities for inspection provided.
 
20	It seems to us, in those circumstances, that Mr Davies is correct in submitting that the London Business School and Professor Bains were very lucky Mr Deman was unable to attend the hearing on 19 January.  Had he done so, they might well have found themselves facing an application for the wasted costs of an adjournment.
 
21	In these circumstances it seems to us that the approach of the Employment Tribunal was flawed.  There are two ways in which we can deal with this matter.  We can either remit it for hearing to the Employment Tribunal or, alternatively, we could deal with the matter ourselves.  It seems to us that we have more than sufficient material to enable us to come to a conclusion and it seems to us quite inappropriate to send the matter back for hearing, something like three and a half years after the date of the original hearing.

22	In all the circumstances we agree with Mr Davies that it was inappropriate for the Order for costs to have been made.  Had the Tribunal taken into account the conduct of the Respondents they would, in our opinion and should properly, have come to the conclusion that no Order for costs was the appropriate Order.