Appeal No. EAT/64/03/AM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 February 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
(SITTING ALONE)

MR P MOORE	APPELLANT

(1) LORD CHANCELLOR'S DEPARTMENT	RESPONDENTS
(2) THE RIGHT HONOURABLE LORD JUSTICE BUXTON

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	MR PHILTON MOORE
THE APPELLANT
IN PERSON	
For the Respondents	MRS R DOWNING
(of Counsel)
Instructed By:
Miss K Hayes
(Solicitor)
The Treasury Solicitor
(Employment Team)
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS	

JUDGE J McMULLEN QC:

1	This is an appeal from a decision of the Regional Chairman of London Central Employment Tribunals in November 2002, promulgated with reasons and directions on 3 January 2003.  No issue is taken as to the appeal being improperly constituted and I take these reasons to be Extended Reasons.

2	The appeal arises from the decision to treat the Notice of Appearance, lodged by the Respondents, as having been made within time.  The hearing was conducted in order for directions to be given ahead of a full hearing before the Tribunal, which is to take place on Monday and Tuesday 17 and 18 February next week.  Thus, this interim appeal has been accommodated at short notice and the parties are to be congratulated on presenting detailed Skeleton Arguments which I have read carefully.

3	The Applicant seeks to overturn the Regional Chairman’s decision on the lodging of the Notice of Appearance.  The chronology is as follows.  The Originating Application was received by the Respondents on 31 May 2002.  The Notice of Appearance was presented to the Employment Tribunal on 21 June 2002.  The relevant Rule is Rule 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (Schedule 1) which provides as follows:

“Appearance by respondent
3(1) A respondent shall, within 21 days of receiving the copy of the originating application, enter an appearance to the proceedings by presenting to the Secretary a written notice of appearance. ...”

4	Rules on counting time are set out in the 2001 Regulations to which the Rules are scheduled.  Regulation 2 set out those computations as follows:

“2(6) Any period of time for doing any act required or permitted to be done under any of the rules in Schedule 1 ... shall be calculated in accordance with paragraphs (7) to (10).
(7) Where an act must or may be done within a certain number of days of or from an event, the date of that event shall not be included in the calculation.  For example, a respondent receives a copy of an originating application on 1st October.  He must present a written notice of appearance to the Secretary within 21 days of receiving the copy.  The last day for presentation of the notice is 22nd October.”

5	The Chairman is given a discretion to extend time in any case under Rule 17(1) of Schedule 1, which provides:

“17(1)  A chairman may, on the application of a party or of his own motion, extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired.”

6	The Applicant in the proceedings, Mr Moore, complains that the correct construction of the Regulation would place the presentation of the Notice of Appearance one day out of time, that is, the time expired on 20 June.  The Applicant further contends that the Regional Chairman should not have extended time if his primary decision was wrong.  The decision of the Chairman is recorded in respect of this matter as follows:

“9  The Applicant had raised in correspondence the issues as to whether the Notice of Appearance on behalf of the Respondents had been lodged in time by them with the Tribunal.  In looking at the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, the Tribunal was satisfied that the Respondents had indeed been in time for the purpose of lodging their Notice of Appearance when taking into account the method of calculation of the relevant time periods provided for in Regulation 2(6) to (8).”

7	The Applicant took strong issue with this approach and the Chairman explained that, if he had been wrong in making that calculation, he would in the circumstances have extended the time for lodging the Notice of Appearance so as to validate the same under the powers vested in the Tribunal in Schedule 1 of those Regulations.  In doing so the Chairman would exercise his discretion, having taken into account all relevant matters.  The Chairman did not find it necessary to exercise his discretion under Rule 17(1) but added that paragraph out of caution.  Mr Moore challenges that decision as well and further contends that he was given no proper opportunity fairly to put forward arguments against the exercise of the discretion.  

8	In my judgment this matter could not be clearer than is put in the Regulations.  This is the modern approach to drafting procedural rules, so that we see properly worked out examples by reference to the calendar.  The same approach is found in the Practice Direction of the EAT, 9 December 2002.  Calculation begins the day after the relevant event.  In this case the date is 1 June and, thus, 21 June is within 21 days of the service of the Originating Application to the Respondents.  It seems to me that the Regulation entirely governs the factual circumstances of this case.  I can see no error in the construction adopted by the Chairman on the face of the Regulations.  

9	It is, as the Applicant agreed, not necessary for me to deal with the hypothesis upon which the Chairman entered his second decision, that is, his extension of time by one day and the Applicant’s complaint that he was not given a fair hearing.  It must be borne in mind that the decision to extend time, in the exercise of discretion, is in any event a provisional one:  see Reddington v Straker [1994] ICR 172, at 176 E to H, where Mummery J presiding in the EAT, said:

“... any ex parte order made by any court or tribunal is, in its essence, provisional.  It is made on the application of one side without notice to the other side.  The order on an ex parte application is made on hearing the submissions of law and fact of one side only.  It is not the practice of any court or tribunal to make enduring orders of that kind which the tribunal or court cannot undo.  ... The Rules of the Supreme Court provide in Ord. 32, r. 6 that the court may set aside an order made ex parte.  ... We are of the view that that general principle should be borne in mind by industrial tribunals in relation to ex parte orders which they make.”

10	That order has been replaced by CPR 23/10 which makes clear that in any civil proceedings a party who is not served with a copy of the application notice before an Order was made may apply to have that Order set aside or varied.  So the Employment Tribunal would follow that practice in the civil courts.  In any event, this was a bilateral hearing before the Regional Chairman.  The Applicant was heard and his submissions in relation to the primary point were dealt with.  In my judgment there is no error of law and it is not necessary for me to deal with the remaining issues raised by the Notice of Appeal and the Skeleton Argument.

Application for Costs

10	An application was made on behalf of the Respondents for the costs of appearing today.  I approach this matter by reference to the Skeleton Arguments so the issue was well rehearsed before it came to me.  Reliance is placed on Rule 34 of the EAT Rules, which provides as follows:

“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 or may direct that it be assessed by the costs officer, from whose decision an appeal shall lie to a judge.”

11	I, of course, apply the overriding objective as invited by Mr Moore so to do, now provided in Practice Direction 1(4) which is this:

“1(4) The overriding objective of this PD is to enable the EAT to deal with cases justly.  Dealing with a case justly includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing; 
(b) saving expense; 
(c) dealing with the case in ways which are proportionate to the complexity and importance of the issues; 
(d) ensuring that it is dealt with expeditiously and fairly.”

And to that end the parties are required to help the EAT in furthering that overriding objective.  I heard this case under Section 28(4) of the Employment Tribunals Act 1996, that is, a judge alone, since it is an appeal from a Chairman sitting alone.

12	In my judgment the Respondents are correct when they submit that there has been unreasonable conduct in bringing the proceedings to the EAT.  It was submitted that the conduct was vexatious.  I prefer to base my judgment on unreasonableness.  

13	The Applicant is a black English barrister, called in 1998, with a law degree from the University of Greenwich.  The substance of his case is that on racial grounds he was not appointed as a Judicial Assistant at the Court of Appeal.  He is therefore a person who understands the law.  His Skeleton Argument makes it clear that he has thoroughly researched the arguments which he put to me.  Sadly, he did not read the very rule upon which the Regional Chairman based his decision, which includes the example from the calendar, and which has proved fatal to his case.  I do regard it as unreasonable conduct for a person with such a background not to have read the sole rule referred to by the Chairman in giving his decision, even after sight of the Skeleton Argument submitted by the Respondents.  Such is unreasonable conduct going beyond simply making an error of law.  The point was obvious and I did not call upon Mrs Downing to address me on it.

14	The Applicant contended that, if I were to make an order of costs against him, the message would go out that persons such as he should not challenge the Lord Chancellor’s Department or a decision on recruitment made by a Lord Justice.  I am not influenced in any way by that submission but deal with this matter entirely on its merits, as I see them.  

15	The Applicant contended that the overriding objective should be borne in mind and I do.  He submitted I should consider his means but as he ought to know I am required so to disregard them by the judgment of the Court of Appeal in Kovacs v Queen Mary and Westfield College, [2002] ICR 919 at least until the 2002 Employment Act is brought into effect, I have decided that costs should be awarded to the Respondents.  I then turn to consider the amount.

16	Miss Hayes Treasury Solicitor has claimed six hours preparation and attendance at £142.50 an hour, and not included travel.  She told me that she had checked with her appropriate department as to the correct banding for a solicitor of her experience and that was the figure that she was given.  I accept that but I will want to see a document including that rate before this Order is made final.  I do not consider that the Applicant’s claim that it should be £100 an hour is well-founded.  He gives no basis for suggesting that.  Doing the best I can, therefore, in my judgment for a solicitor in Central London, even in the public service, I see nothing offensive about the rate.  I do, however, consider that the amount of time given to this by the solicitor with conduct of the case to be excessive, as she instructed counsel.  I will award two hours.

17	I reject the contention that counsel’s fees should be excluded.  It is suggested that counsel was instructed simply to inflate the costs and it is not proportionate to have counsel here today, given Miss Hayes’ conduct of the hearing at the Employment Tribunal.  In my judgment it was entirely appropriate for the Lord Chancellor’s Department and for a judge sued personally to wish to be represented by experienced counsel.  It was further appropriate, bearing in mind that the Applicant himself is a member of the Bar. As to counsel’s fees, it may be surprising to many people to note that Mrs Downing, a member of the Bar of very substantial experience is charging the Treasury Panel rate of £100 an hour.  That may show what good value the Bar provides and I will allow the five hours which she has claimed for the preparation of this case and her attendance here today.  When somebody gives me the revised figure and adds 17.5% VAT on the top, that is the figure I will award, subject only to confirmation that the rate of £142.50 is right.  The total amount is £785.00 plus VAT and that is the figure I will award.  This case will go ahead on Monday.  

19	At the close of today’s proceedings, which have overrun, notwithstanding a fire alarm, the Applicant raised two new Notices of Appeal.  These have reached the EAT and are in a file for me now.  The Respondents are entitled to time in order to consider these matters, and I note that the subject matter of one of them is capable of a renewed application on Monday, when this hearing opens before the London Central Tribunal.  I regret that the pressure of time in my list does not allow me to further deal with this today and I am confident that Mr Moore will be able to raise at least one of the issues on Monday and, if he seeks a review of the other issue which I am told is a final decision, then he can do that on Monday as well. So, by that time the Respondents will have been able to consider their position on these two appeals and may well be able to accommodate some aspects of them.  They are not properly constituted before me to do the sift in accordance with the PD or to hear the Respondents today and no indication has been given that I would be required to take more time to deal with it than has already been allotted.