Appeal No. EAT/0558/03

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 October 2003

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MR A J LARWOOD	APPELLANT

EARTH TRONICS INC LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ADAM SOLOMON
(Of Counsel)
Instructed by:
Messrs A E Mizler
Solicitors
PO Box 270
Pinner
HA5 4AW	
For the Respondent	THE RESPONDENT BEING NEITHER PRESENT NOR REPRESENTED	

JUDGE P CLARK

1.	This case is presently proceeding in the Southampton Employment Tribunal.  The parties are Mr Larwood, the Applicant, and Earth Tronics Inc Ltd, the Respondent.  It has been case managed by a Chairman, Mr S J W Scott.

2.	The Applicant commenced these proceedings by an Originating Application dated 19 December 2002, in which he complained of unfair dismissal, arrears of salary and redundancy.  He was then acting in person.

3.	A directions hearing took place before Mr Scott on 18 March 2003.  Among other directions the Chairman ordered the Applicant to provide further particulars of his claim by 1 April; extended the Respondent’s time for entering a Notice of Appearance until 22 April and vacated the date fixed for the substantive hearing, then the 2 June.

4.	A Notice of Appearance was lodged on 17 April denying a dismissal.  It seems that the Applicant had by that time discovered that he had the benefit of insurance cover for the litigation and solicitors were instructed on his behalf.  On 11 April those solicitors wrote to the Employment Tribunal seeking permission to amend his complaint to add a claim of constructive dismissal in the alternative to the originally pleaded claim based on a direct dismissal by the Respondent on 6 December 2002.

5.	That application was opposed by the Respondent and an Interlocutory Hearing was held on 16 May before Mr Scott, principally to determine the Applicant’s amendment application.  On that occasion the Applicant was represented by Counsel Mr Self, and the Respondent by a Solicitor, Mrs West.  The Chairman granted the application and gave permission to the Applicant to amend in substantially the form of the proposed amendment.

6.	The Respondent then made application for the costs of the amendment.  In a separate decision on costs, with Extended Reasons, promulgated on 21 May 2003 the Chairman ordered the Applicant to pay costs to the Respondent in the sum of £595 (inclusive of VAT).  Those costs included both preparation time (limited to 1 hour) and time spent by the Respondent’s Solicitor at the Employment Tribunal on 16 May.  It is against that Costs order that the Applicant now appeals.

7.	The costs regime in Employment Tribunals is governed by rule 14(1) of the Employment Tribunal Rules of Procedure 2001.  The rule provides, so far as is material:

“Where, in the opinion of the tribunal a party has … in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably, … the tribunal shall consider making, and if it so decides, may make – [a costs order].

8.	At paragraph 17 of his reasons for the Costs Order the Chairman held:

“In my judgment, on the particular facts of this case the Applicant’s failure to instruct Solicitors earlier, which resulted in this late application to amend, is unreasonable conduct of the proceedings within the meaning of R 14(1).”

9.	I bear in mind as Mr Solomon properly accepts that an appeal against an Interlocutory Order of an Employment Tribunal or Chairman alone is one in which I can only interfere where an error of law is first made out.  Here it is submitted that the Chairman took into account an irrelevant factor, namely the point in time at which the Applicant instructed solicitors and failed to take into account relevant factors namely the fact that the hearing on 16 May was convened principally to deal with the amendment application because it was opposed by the Respondent, which opposition failed, and secondly that the form of amendment to the Originating Application was lodged before the Respondent served its form IT3.

10.	The Respondent does not appear today.  Mr Norman is unwell and it is said that the Company cannot afford legal representation.  Reliance is placed by the Respondent on the Chairman’s reasoning.

11.	In my view this appeal must succeed for the reasons advanced on behalf of the Applicant.  There is no obligation upon a party before the Employment Tribunal to instruct solicitors as the Employment Tribunal’s guidance makes clear.  It therefore cannot in my judgment be unreasonable conduct of itself to instruct solicitors after proceedings have been instituted.  The hearing held on 16 May was only necessary to deal with an opposed application which in the event substantially succeeded.  The nature of the amendment was to put in issue the Respondent’s subsequent denial that the Applicant had been dismissed at all.

12.	Finally, the proposed amendment preceded the Respondent’s form IT3.

13.	In these circumstances I shall allow this appeal and exercising my powers under Section 35 of the Employment Tribunals Act 1996 set aside the costs order below on the grounds that I am not satisfied that the Applicant was guilty of unreasonable conduct in making and pursuing the application for permission to amend.