Appeal No. EAT/0510/02 ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 May 2003

Before
THE HONOURABLE MR JUSTICE WALL
MRS R A VICKERS
MR G H WRIGHT MBE

MRS A W AYOBIOJO	APPELLANT

LONDON BOROUGH OF CAMDEN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR FRED EDWARD JNR
(of Counsel, non-practising)
Cain & Abel Law Firm
239 Missenden
Inville Road
London SE17 2HX	
For the Respondent	MR C GLEN
(of Counsel)
Instructed by:
London Borough of Camden Legal Services
Town Hall
Judd Street
London WC1H 9LP	

THE HONOURABLE MR JUSTICE WALL

1	This is Mrs A W Ayobiojo’s appeal against one part of the decision of the Employment Tribunal held at London (Central) on 25 January 2002 and chaired by Miss A M Lewzey.  The decision was promulgated on 20 February.

2	The Appellant appealed against all three of the orders which the Tribunal made on that day, but at the Preliminary Hearing of her appeal, in a constitution of the EAT presided over by Mr Justice Rimer on 3 February 2003, her appeal against the first two orders was dismissed, and she was permitted to proceed on one point only, namely the decision of the Tribunal to make an order for costs against her.

3	The full order made by the Employment Tribunal  was in the following terms:
(i)	her application to postpone the hearing was refused;
(ii)	her Originating Application was dismissed in its entirety under Rule 11 (3) of the Employment Tribunal Rules of Procedure 2001; and
(iii)	she was ordered to pay the Respondent’s costs in the sum of £2,180.

4	The procedural history of the case makes unhappy reading but is important as background to the case.  The Appellant made her application through her form IT1 on 26 February 1999 and the allegations she made relate back to 1990 and range from 1990 until the date of the application.  Her complaints were of sex discrimination, victimisation, harassment and constructive dismissal.

5	The Respondent to the proceedings, the London Borough of Camden (“Camden”)  put in an appearance on 23 March 1999 and on 22 September 1999 parts of the IT1 were struck out, principally on the basis that they were out of time.  The Appellant applied for a review of that decision, and when that failed she appealed against it.

6	At the Preliminary Hearing of that  appeal on 25 May 2000 she was allowed to proceed in part but the balance of her appeal was dismissed by this Tribunal on 9 May 2001.  The case then began, finally, to move towards a hearing with Notice of Hearing being given initially on 3 August 2001.

7	On 29 November 2001,  directions for a hearing were given in the Employment Tribunal Mr D J Latham Chairman sitting alone.  He refused permission to amend the IT1.  He identified those parts of the Appellant’s claim which he thought capable of being heard and within the jurisdiction of the Tribunal, and he set the matter down for hearing on 25 January  2002 with six days set aside.  His reasons for those directions were promulgated on 20 December 2001.

8	The Appellant was not satisfied with the formulation of her claims by Mr Latham and his refusal to allow her to proceed in the way she wished; and so she entered an appeal against his decision on 9 January 2002 and two days later applied by letter to the Tribunal for the postponement of the hearing on 25 January.  The Tribunal refused that application but indicated that it could be renewed at the full hearing.

9	Camden itself applied for expedition of the appeal from Mr Latham’s order.  That application was made on 15 January but, on any view, was somewhat optimistic given that the hearing of the main application was due to be heard on 25 January (some 10 days later).  In any event the Employment Appeal Tribunal refused to expedite the appeal.

10	On 24 January 2002 the Appellant’s advisers wrote to the Tribunal setting out their reasons for seeking an adjournment. This is a particularly important letter as things turn out. It was faxed to the Tribunal on 24 January, the day before the hearing.  It is marked ‘urgent’.  It refers to the hearing on 25-30 and it reads as follows:

“Further to the EAT’s rejection of the Respondent’s application that the Applicant’s appeal against the decision of the Chairman, Mr Latham, be expedited and thus directing the Applicant’s appeal to be fully heard by the judges through the normal appeal process, the Applicant again requests that the full merits hearing set down for the 25 – 30 January 2002 do in the circumstances be vacated.  As the case cannot possibly go ahead whilst the decision by the Chairman, Mr Latham, which severely truncated her complaint is being challenged and the EAT is seized of this matter.
Any attempt to go ahead with the merits hearing in the circumstances would appear, we submit, absurd and abuse of the judicial process by the Employment Tribunal.  And the Applicant would not take part in such an attempt to deny her her right to fair hearing under Article 6 as laid down under the Human Rights Act 1998.
Please find enclosed a letter dated 22 January 2000 from the EAT.”

11	The response to that letter from the Tribunal on the same day was in these terms:

“Thank you for your letter of 24th January 2002.  I have noted its contents.  The regional chairman Mr Latham has instructed that that if need be the Applicant make a fresh application at the start of the hearing on the 25th of January 2002 if so advised.  The Tribunal will then be in a position to hear both sides’ arguments in full.”

12	That fax was addressed, of course, to the Appellant’s advisors but was copied to the Personnel Manager of  Camden.  Also, on the same day, Miss Rhoden, of Camden’s Employment Law Corporate and Community Law Team sent a letter by courier to the Appellant’s advisers saying as follows:

“I write to confirm the Respondent is in a position to exchange witness statements and has requested that that the parties do so today.
I note the reason you have given for being unable to exchange statements is that you have requested a postponement of the hearing.  I would wish to point out however that until your application is granted the parties are required to comply with the Tribunal Orders as set out by the Chairman in his decision at the Directions Hearing on 29 November 2001.
If [the] hearing is adjourned tomorrow as a result of these matters, the Respondent will seek to recover from you their costs.”

13	Camden’s case is that it did not receive a copy of the letter from Mr Edward dated 24 January 2002 which I have read out.  Mr Edward says he sent it to Camden.  They say they did not receive it.  We are of course unable to resolve that issue, even if we wanted to.  We do, however, comment that the terms of the letter of 24 January 2002 from Miss Rhoden to Mr Edward are inconsistent with the receipt by her of  Mr. Edward’s letter of 24 January 2002.  In any event, these are the circumstances in which the matter came before the Tribunal on 25 January 2002.

14	Mr Edward, appearing for the Appellant,  renewed his application to the Tribunal for a postponement on the grounds of the letter of 24 January.  He said that no-one was more eager that the merits of the Appellant’s claim should be heard than the Appellant herself but she would not allow this to happen at the expense of being denied a fair hearing.  Mr Edward had argued that the way the Tribunal had dealt with her applications and the matters that had been struck out effectively made it impossible for her to present her case and in the event the Tribunal should not proceed until such time as her appeal against Mr Latham’s decision had been heard.

15	The application to adjourn was vigorously opposed on behalf of Camden who pointed in particular to passages in the judgment of Lindsay J in the Preliminary Hearing on 25 May 2000 which was in these terms:

“We are bound to say that we express some sympathy for the Employment Tribunal, who must have felt they were grappling with wet bars of soap; every time they thought they engaged and put pressure, then the subject matter shot from their grasp and was replaced by similar material once again.  It is not easy for a Tribunal to deal with matters of pleading when matters do change so frequently and so late.”

16	Camden argued that the Appellant had continually changed facts and matters according to what suited her.  The allegations went back a long way and the Respondent was prejudiced by any further adjournment.

17	The Tribunal carefully considered the application to postpone and it came to the conclusion (for the reasons which it gives) that it should be refused. However, after the decision had been announced, Mr Edward told the Tribunal that his instructions were limited to the making of an application for a postponement on behalf of the Appellant and he therefore excused himself from the proceedings.  The Tribunal then adjourned between 11.45 to 12.00, but when the parties were recalled Mr Edward had left the building and the Appellant had not arrived.

18	Mr McCarthy for the Respondent thereupon applied for the proceedings to be struck out under Rule 11 (3) of Schedule 1 of the 2001 Rules.  The Tribunal considered that, again with care.  It pointed out there were no witness statements from the Appellant to indicate her readiness to proceed, notwithstanding clear directions made by Mr Latham on 29 November. It was quite clear to the Tribunal that the Appellant had taken no steps to prepare herself for the hearing on 25 January.  Since the burden remained very clearly on her, in relation to the three complaints, it was appropriate that they be struck out. That was the Tribunal’s decision.
19	We should perhaps point out that during the course of argument on the first two limbs (that is to say, the application for the adjournment and the strike out) the Tribunal appears to have taken the point, with Mr McCarthy’s encouragement, that although the hearing date had been fixed on 29 November, the Appellant waited until 9 January to submit the appeal.  That, with all respect, was a bad point for the reasons which have been pointed out by Mr Edward today; namely that the decision of Mr Latham was not promulgated until 20 December 2001, so there was no evidence whatsoever that there had been a deliberate delay in the filing of the appeal until the last moment in order to achieve tactical advantage.  We mention that because it does not seem to us, looking at the application for costs, that this was a factor which the court took into account when deciding to award costs against the Appellant.

20	The first two limbs of the Tribunal’s order were appealed to this Tribunal and the appeals in relation to them were comprehensively dismissed.  But that leaves the question of costs. How did the Tribunal approach it?  Mr McCarthy made an application for costs on the ground that the Appellant had acted unreasonably in not attending the hearing when it had been set down since 29 November.  Mr Edward had not even been instructed to present her case in her absence, but only to apply for an adjournment that had been refused. Her representative did not then make any representations on the application to dismiss.  Mr McCarthy argued that the Respondent had been involved in the case for a number of years and but for the Appellant and/or the Appellant’s representative the case would have been heard before now.  The costs sought were his solicitor’s hourly rate; £60 per hour for three hours amounting to £180; and his brief fee of £2,000.

21	We were told today by Mr Glen, who appears for the Respondent, that Mr McCarthy made a mistake when he told the Tribunal his brief fee was £2,000 and that it was in fact £2,500.  We make the observation at this point so that it need not be repeated, but as far as we are concerned, that is not a matter with which we are prepared to interfere.  If he told the Tribunal his brief was £2,000 and that is what the Tribunal acted on, we must work on that figure. There is no cross-appeal in relation to the costs order. We were also told, and we mention this again for the record, that had Mr McCarthy been instructed for half a day, his fee would have been £750. 

22	In its reasons, the Tribunal then cited Rule 11(3); it took into account the fact that the case had been listed since 29 November, and that it had been made clear that the postponement application could be revisited on the morning of the hearing.  The Appellant had not attended, nor had she provided any medical certificate for her non-attendance.  The Tribunal had simply been told she was too upset and distraught to attend.  The Tribunal took into account that Mr Edward was not even instructed to present her case in her absence. It pointed out that this was a situation where the Originating Application was presented on 26 February 1999 and had been before a Tribunal in September 1999 with two hearings in the Employment Appeal Tribunal and a further directions hearing.

23	The Tribunal was satisfied that both the Appellant and her representative had acted unreasonably in not being prepared, and in not attending the hearing. It was, accordingly,  appropriate to make an order for costs.  In the circumstances they noted:

48	“We noted that the Applicant is said to be said by her representative to be working and that the Respondent has asked for the cost of today’s hearing in the sum of £2,180.”

That sum was effectively an indemnity as to costs. The unanimous decision of the Tribunal was that was the sum which should be awarded.

24	The jurisdiction to award costs appears in paragraph 14 of Schedule 1 of the 2001 Regulations.  It reads:

14	(1)	“Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make – 
(a)	an order containing an award against that party in respect of the costs incurred by another party;
…
(3)	An order containing an award against a party…in respect of the costs incurred by another party…shall be – 
(a)	where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000;
(b)	where those parties agree on a sum to be paid by the first party to the second party in respect of those costs, an order that the first party pay to the second party a specified sum, being the su9999999999999999999999999m so agreed; or
(c)	in any other case, an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as assessed by way of detailed assessment (if not otherwise agreed).

25	It follows, therefore, that Camden has to overcome the hurdle, before an order for costs can be made,  of establishing that the conduct of the Appellant in this case was unreasonable.

26	Mr Edward sought to persuade us in his Skeleton Argument that it was perfectly reasonable for the Appellant not to wish to attend the hearing, given the way her proceedings had, in her view, been decimated by the Tribunal.  He described it as a curate’s egg which she was not willing, and reasonably not willing, to eat. She was, therefore, was entirely justified in staying away.  She was not willing to lend, (in Mr. Edward’s phrase) any credence by her presence to such a blatant act of disregard by an inferior Tribunal to a superior Tribunal. By that he meant that pending an appeal to the EAT, the lower Tribunal should not have proceeded. She was not prepared  to take part in a hearing which, he submitted,  denied her cry for true justice.

27	Insofar as that is material, we were told by Mr Edward that the appeal against Mr Latham’s order was subsequently dismissed.  But there is a wider point here and one we think of some importance; namely that it is not for the litigant to dictate the terms upon which he or she is prepared to attend the Tribunal.  It is for the Tribunal to decide what aspects are within its jurisdiction and which are capable of being adjudicated upon.  Since the matter of the original striking out of parts of the IT1s had been before not only the Tribunal but the Employment Appeal Tribunal, it was not for the Appellant to say that she would only litigate on her own terms, which is effectively what she was saying.  It is for the litigant to present to the Tribunal a case which the Tribunal is capable of dealing with and that is a matter for the Tribunal, not the Appellant.  We have no difficulty at all, therefore, in finding that the Tribunal was correct under the first limb of the Rule in finding that there was unreasonable behaviour.

28	That then leads us to the question of the exercise by the Tribunal of its discretion to make an award and the amount of the award.  This is where the difficulty in the case has arisen.  When the matter was before the Employment Appeal Tribunal on the preliminary hearing, Mr Justice Rimer said this:

29	“…in our view, the only basis on which the Tribunal could award costs against [the Applicant] was because her failure to attend on 25 January amounted to unreasonable conduct on her part and, indeed, we interpret that as the real reason for the costs order which the Tribunal made.
30	We consider that it is arguable that, in so approaching the matter, the Tribunal may have fallen into error.  We presume that Camden prepared for the hearing on 25 February on the basis that there was going to be a full hearing on the merits, although in the event the only contentious hearing was on the adjournment application.  If Camden had been told in advance that [the Applicant] intended to apply for an adjournment on 25 January but that, if her application failed, she would not either attend or be represented on the substantive hearing, then Camden would still have had to incur costs in preparing for 25 January, although it may be that in that event the costs of preparation would have been less than in fact they were.  We are satisfied that it was unreasonable conduct on the part of [the Applicant], not to give Camden due warning that she would at most only be seeking an adjournment on 25 January, so that Camden could tailor its preparation for that day accordingly.  But since Camden would in any event have had to attend the hearing on 25 January, we regard it as arguable that the Tribunal’s decision that [the Applicant] should pay all Camden’s costs of that day, was a decision arrived at in error: the error, of course, being that the Tribunal failed to take account of the fact that Camden would anyway have had to incur at least some costs for the purposes of the hearing on 25 January.
31	In our view, therefore, it is at least arguable that the Tribunal was in error in not enquiring whether Camden’s costs of 25 January had been increased by reason of the lack of reasonable forewarning that, whatever happened, [the Applicant] would not be presenting a substantive case to the Tribunal; and, if the answer to that was “yes”, in limiting the award of costs against [the Applicant] to that increased element of its costs.  If in fact the costs had not been so increased, then we would consider it arguable that no costs should have been awarded at all.  In short, we consider it arguable at a full hearing of this appeal that a proper exercise of an Employment Tribunal’s discretion under Rule 14(1) requires it to identify a causal connection between the unreasonable conduct and the incurring of the costs which it orders the paying party to pay.”

29	We do not approach this matter in quite that way.  It seems to us, firstly, that we have to ask, as the Tribunal did, whether or not there was unreasonable conduct.  The Tribunal plainly found that there was.  The consequence of that was that the Tribunal struck out the Appellant’s claims.

30	At that point, the costs which had been incurred were the brief fee for Counsel who appeared and the cost of the solicitor in the preparation of the case.  In our judgment it is crucial at that point, as this Tribunal under Mr Justice Rimer indicated, to look precisely at what was the state of knowledge of Camden in the period immediately leading up to the hearing; because if Camden had been notified days in advance or even perhaps the day before that what was going to happen on the following day was an application for an adjournment followed by a non-appearance by the Appellant, it might well be arguable, subject to the question of when the brief was delivered, that it would be unreasonable for any Tribunal to saddle the Appellant with the entirety of the costs that had been incurred.

31	We bear in mind, as Mr Glen points out, that this is a very broad discretion given to an Employment Tribunal.  We have been referred to a number of the recent authorities on the point and on the way in which Tribunals must exercise their discretion. We are clearly of the view, as the authorities indicate, that this is a broad discretion and we can only interfere with it if we are satisfied either that the Tribunal took into account some important factor which it should not have done, or left out some important factor that it should have included, or that its discretion was in some other way vitiated in such a way as to make its decision plainly wrong in law.

32	But here it seems to us the position is this.  Camden prepared for the hearing on the basis that it was to go ahead on a five-day basis.  That was an entirely reasonable thing for it to do.  It was entirely unreasonable for the Appellant, as it were in dudgeon, not to appear  when her application for an adjournment was refused.  Camden, in our judgment, had no alternative but to prepare for this case on the basis that it was a five-day hearing.

33	On that basis, it was perfectly reasonable of them to brief Counsel in the brief fee of £2,000.  It was perfectly reasonable for the solicitor in question to have done her three hours preparation; indeed, probably that is a very modest underestimate of the amount of work that she actually did.  But that was the amount of costs that Camden had incurred as at the date the application was refused.

34	It seems to us that to get into speculation of what might or night not have happened had the case gone longer;  what might have happened had it not stopped; whether one can deduct this sum or that sum, or whether in fact, as is argued, Mr Edward did Camden a favour by not appearing and therefore ensuring that the claim was dismissed without a five day hearing – these considerations seem to us academic in the extreme.  The question is, in each case, was the behaviour unreasonable? And what was the consequence in costs terms of the behaviour.
35	If the Appellant had turned up on 25 January and the case had been fully litigated she may well have lost and Camden would undoubtedly have incurred the fees for five days.  It is very unlikely in these circumstances that Camden would have recovered those costs from her.  But the distinction would have been, and the critical distinction would have been, that in those circumstances she had behaved reasonably in pursuing her litigation.  Of course it is the long tradition of this Tribunal and the Employment Tribunal as below that parties should not be frightened away from the judgment seat for fear of being saddled with costs.  But that is on the basis, of course, that they behave reasonably. Any litigant who behaves reasonably is not at risk of costs.

36	This litigant behaved unreasonably.  The consequence was that Camden prepared for a  five-day hearing.  Preparing for that Camden spent £2,000+ in the brief fee and the solicitor’s costs.  In our judgment when the Tribunal decided that that was what they were entitled to recover this was a proper exercise of discretion with which we do not think we could interfere.

37	In those circumstances it seems to us that although it might be tempting to seek to tinker with the order that would be quite inappropriate.  The Tribunal has made a judgment.  It has exercised a discretion; this was a discretion open to it and one which it was appropriate for it to exercise.  In those circumstances it seems to us that we cannot interfere and the appeal will therefore be dismissed.