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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> A & S Domestic Services Ltd v. Burke [2002] UKEAT 1443_01_1803 (18 March 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1443_01_1803.html Cite as: [2002] UKEAT 1443_1_1803, [2002] UKEAT 1443_01_1803

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APPEARANCES

 

For the Appellant	Mrs Adele Lock Representative


 


JUDGE J McMULLEN QC

1. This case concerns the award of costs. It is an appeal by the Respondent in proceedings which took place before a Manchester Employment Tribunal, Chairman Mr M L Creed on 24 August 2001, promulgated on 26 September 2001. The Applicant was represented by a solicitor and Counsel, the Respondent by an officer of Peninsula Business Services.
2. The issue before the Tribunal was wrongful dismissal, breach of contract, loss of right to complain about unfair dismissal and unpaid commission. The Tribunal recorded an agreement by the parties that the proceedings be stayed on the terms set out in the schedule, the schedule which forms the latter part of the Extended Reasons provides that the Respondent admits that the Applicant was wrongfully dismissed and it would pay him £5,200, and upon successful completion of those terms, the application would be dismissed.
3. The dispute which arises on appeal is about the award by the Tribunal of a sum of £1,175 to be paid by the Respondent to the Applicant. This we are told is £1000 in legal costs plus VAT. The way in which the award of costs arose was as follows: on 20 June, at an Interlocutory Hearing, a Chairman gave clear and unambiguous directions for the service of witness statements which should be full and complete.
4. The case was listed for two days in August 2001. On the first day, the Tribunal listed to hear the case was unable to reach it, the case having been listed as a floater. On application to the duty Chairman, the second day was made available, and thus the parties came together before a fresh Tribunal on 24 August 2001.
5. During the course of that first morning, the Respondent called its first witness, Mrs Lock, its General Manager. Mrs Lock has appeared before us today. It became apparent, shortly after the beginning of her evidence that she proposed to depart in a significant manner from the proof of evidence which had been disclosed, in the course of the proceedings. She was to refer to other material which had not been referred to hitherto, and that was to be introduced. The Chairman stopped the proceedings in order to consider how the matter should now proceed in the light of objections being taken for the Applicant. It became clear that if this evidence was to be adduced, another day would need to be set aside, and so it was - 3 December 2001.
6. At that stage, Counsel applied for costs. The Tribunal considered the application and held that the Respondent had behaved reasonably in the conduct of the litigation, concerned with the preparation and service of witness statements and had failed to comply with the Order made by the Tribunal on 20 June 2001. On enquiry as to the value of the costs, the Tribunal awarded the figure we have set out above. Shortly thereafter an adjournment was sought and the parties came to terms which we have set from the schedule of Extended Reasons.
7. The basis of the appeal today is as follows: given that the Tribunal was not to be troubled again with a further hearing on 3 December 2001, it was unreasonable for the Tribunal to award the costs of the aborted hearing on 24 August 2001. At first sight, the complaint of the Respondent is understandable, having reasonably settled with the Applicant to avoid further Tribunal time, it feels aggrieved that it should be ordered to pay the costs of that day, particularly bearing in mind that the first day had been thrown away because of pressure of business in the Employment Tribunal.
8. However, our scope to intervene at this level in a case where discretion has been exercised on the issue of costs is extremely limited. The Tribunal has correctly addressed its statutory power to award costs against a Respondent it adjudges to have acted unreasonably. It had material upon which to make that judgment, namely the failure to comply with an Order and it assessed the costs in a way which is not so far out of line with anything it might reasonably award.
9. The Tribunal plainly considered the fact that the parties had come to terms and that, provided those terms were carried into effect, the application would be dismissed and there would be no need for a further hearing. It was open to the Tribunal at that juncture to re-assess the issue of costs, but it did not do so. On advice from Peninsula, the Respondent did not seek a review of the costs award, but appealed here.
10. We consider no error has been committed by the Tribunal, since it has directed its attention solely to the costs caused by the abandonment of the August hearing, and not as Mrs Lock submitted, by reference to the need for a further day to be set aside in December.
11. In those circumstances, it is not open to us as an Appeal Tribunal to interfere with the exercise of that discretion by the Tribunal and we dismiss the appeal. The appeal was conducted pursuant to section 28(3) of the Employment Tribunals Act 1996 constituted as an Appeal Tribunal of two members, in the absence, unavoidably, of the third member today.