Appeal No. EAT/1471/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	
	At the Tribunal
	On 29 July 2002
Judgment delivered on 14 January 2003

Before
MR COMMISSIONER HOWELL QC
MS N AMIN
MR P A L PARKER CBE 

MS A WALTON 	APPELLANT

(1)	IMAGE CREATIVE LTD
(2)	ROWAN BAYLISS	RESPONDENTS

Transcript of Proceedings

JUDGMENT (Application for costs)

	APPEARANCES

For the Appellant	Written submissions	
For the Respondents	Written submissions	

MR COMMISSIONER HOWELL QC

1.	This is a supplemental judgment to deal with the Respondents’ application for the costs of this appeal.  The appeal itself has already been dismissed by the order dated 16 August 2002, for the reasons we set out in our reserved judgment issued on that date.  Following that order and the procedure directed in the last paragraph of our main judgment, the Respondents’ representative Peninsula Business Services Ltd made a written application received on 27 August 2002 for an order that the Appellant should pay the Respondents’ costs of the appeal.  This is opposed by the Appellant on the grounds set out on her behalf in submissions by her solicitors and Counsel received on 18 October 2002;  these however further indicate that should we be minded to grant the Respondents’ application after considering the written material, she would wish to advance her resistance at another oral hearing.
2.	In view of that last indication we have had to consider how best to dispose of the costs application itself.  Though the written procedure has already enabled the Appellant to see and answer everything put forward on behalf of the Respondents we do not think she should be refused all opportunity of a further oral hearing on any contemplated order for costs if she insists on it: on the other hand, we are concerned that any extra unnecessary costs and delay to both sides from such a hearing should be avoided if at all possible.  We think therefore it will be of most help to the parties if we now indicate the view we have at present formed on consideration of the written material, which is of course subject to any further argument at such a hearing if the Appellant continues to press for it, but will otherwise simply become the subject of an order to take effect at the end of a short suspending period allowing her to do so.
3.	As recorded in our main judgment the appeal against the decision of a tribunal rejecting, after a full hearing into the facts, all the Appellant’s claims of sex discrimination and unfair constructive dismissal against the Respondents was based on an unusually large number of grounds, all related in one way or another to the way the tribunal had dealt with the facts and evidence in the case: in particular their acceptance of the Respondents’ evidence in preference to that of the Appellant.  In various itemised and detailed ways, the tribunal’s findings on the evidence were claimed to be “perverse”, and further allegations were made of improper conduct and bias on the part of the chairman, breaches of natural justice, and lack of a fair trial on factual issues.  Those latter allegations were not proceeded with by the Appellant’s counsel when the case did finally come on for full hearing before us, but they undoubtedly added much to the overall cost and difficulty of the case for both sides: in particular because they were responsible for a full set of transcripts of the tribunal proceedings being obtained by the Appellant, by special authority of the President.  When obtained these showed the previous allegations of “bias” to be baseless, but they were nevertheless referred to extensively in support of the “perversity” allegations on individual points of fact which then, in one form or another, constituted the Appellant’s entire case as put forward on the hearing of the appeal.  Our conclusion, reached as we noted after having to consider all this unusually extensive written material and arguments developed over a hearing that lasted over a day, was that the appeal had to be dismissed as none of the numerous points relied on amounted to more than attempting to reopen and reargue issues of fact that had already been properly considered and determined by the Employment Tribunal.  
4.	That conclusion finds more than an echo in a letter now produced to us on this present application, written by the Respondents’ representative on 10 November 2001 to the Appellant’s then solicitor at an earlier stage of the appeal after the chairman’s notes of the proceedings had been obtained, in which they said: 
“After careful consideration we are of the view that the whole basis of this appeal is that the Appellant was not believed, a matter which is principally a question of fact for the Employment Tribunal in resolving issues of fact and the reliability of witnesses …
Bearing in mind that your client has already had a hearing at which she was represented, had every opportunity to put her case forward. She did not succeed, but did not, in accordance with the normal practice, face having to meet the now Respondents costs, we feel it is unreasonable for your client to continue in the light of the details provided in the Chairman’s notes and therefore we must put you on notice that it is our intention to seek costs in respect of this matter should it not be withdrawn within a short period from today’s date.”
5.	The grounds of the present application for costs are substantially the same as that.  The written submission on behalf of the Respondents by Mr West of Peninsula Business Services Ltd also makes the points that the fact of a case having been permitted by the EAT at the preliminary hearing stage to proceed to a full hearing instead of being summarily rejected at the initial stage does not limit the powers of the tribunal on the full hearing to make any order for costs then appearing appropriate; and that in any event there had been a substantial shift in emphasis of the whole case since the time of the preliminary hearing, since the major reliance on alleged “bias” at that and the later interlocutory stages had simply been abandoned.  On both of those points, Mr West appears to us undeniably correct.
6.	The power we are asked to exercise is in rule 34 of the Employment Appeal Tribunal Rules 1993, by which:
“34. – (1) 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 other party in connection with the proceedings.
(2) Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid…”
7.	The submissions on behalf of the Appellant reiterate an argument made to us (and rejected) on the main appeal that there were disparities, both in content and in length, between the evidence recorded by the chairman in her notes and that shown in the full transcript which supported the Appellant’s allegations.  They also refer to the case being permitted by the EAT to proceed beyond the preliminary stage as an argument against any order for costs being made.  In addition we are now informed that the Appellant has been diagnosed as suffering from an auto-immune disease and is dependent on social security benefits; that these proceedings have been publicly funded since the preliminary hearing, and she is unable to pay the Respondents’ costs. 
8.	On the material now before us and our own detailed knowledge of the case from the main appeal hearing, we have to conclude that these were appeal proceedings “unreasonably conducted” in terms of Rule 34, both in the making of the original unfounded allegations against the chairman which were directly or indirectly responsible for the unusual and expensive way the case came to be fought, and in the pursuit throughout of the many grounds on “perversity”, none of which when held up to the light amounted to more than an attempt to reargue the facts, and none of which therefore gave any real ground for an appeal on law.   This is therefore a case in which the jurisdiction under the rule arises: and whether any order should be made, and if so whether for all or only part of the Respondents’ costs, are matters for our discretion.  
9.	Our only discretion is to make an order against “a party” whose case has been conducted unreasonably; and in our judgment neither the fact that the Appellant is impecunious, nor the possibility that the decisions on how the case should be pursued may not have been hers alone, or may have been based on mistaken assessments by her advisers or those funding her, are reasons against at least some order against her being considered in the circumstances now before us: (on the question of her financial position cf. now Kovacs v Queen Mary and Westfield College [2002] ICR 919, [2002] EWCA Civ 352).  
10.	The details supplied on behalf of the Respondents by Mr West explain that his firm’s advisory and advocacy services have been provided to them on a chargeable hourly basis, the Respondents not being covered by any indemnity insurance for this case and so being liable for these costs themselves.  However they are charged only at a modest rate (compared at least with professional legal costs at this level) of £50 per hour plus expenses, without a substantial profit element for this work: and the Respondents have given instructions that in view of the Appellant’s limited resources the amount sought on the present (written) application should be limited to the costs incurred from 1 April to 16 August 2002, quantified by Mr West at £1757.50 (exclusive of Vat which is not sought).  The submissions for the Appellant dispute certain items for travel time and expenses within this total. 
11.	Our view on the written material before us (subject, we emphasise, to reconsideration on oral argument if this is sought) is that the circumstances we have outlined do justify the making of an order under rule 34 against this Appellant despite the personal difficulties drawn to our attention on her behalf.  Sympathy for these does not alter the fact that the unreasonable pursuit of the appeal has put the Respondents to needless expense in fending it off - fortunately not huge, but still unjustified, and the circumstances do, we think, call for an order to impose at least some of the liability for this on her.   
12.	The order we are therefore satisfied it is expedient to make, on the basis of the written material before us and so as to dispose of the application immediately, is that she should pay the Respondents the sum of £1000 towards their costs of the appeal.  For the reasons explained in paragraph 2 above this will however be subject to the ability of the Appellant, if so advised, to lodge a further written application with the EAT office, not later than 14 days from the date of issue of this judgment, for the case to be re-listed for further oral hearing on costs before any order is made; and we will direct that the order for the £1000 is not to be drawn up or take effect until the end of that time.  If the Appellant does not so apply, the order for the £1000 is then to be drawn up and take effect automatically.  If she does so apply, then it will not do so and the case is to be re-listed as soon as practicable for a further oral hearing of the Respondents’ application for their costs of the appeal, for which purpose all questions on the application will be completely at large: that is, it will be open to the Appellant to argue that no order for costs at all should be made, and open to the Respondents to argue that she should be ordered to pay the whole of their costs, not limited as stated in their written application and including the costs of the further hearing itself.