The claimant was pursuing constructive dismissal and disability discrimination claims. The respondent made an application for costs on the grounds that the claimant’s unreasonable behaviour in preparing for the case had necessitated an adjournment, leading to wasted costs amounting to £5,800. The Tribunal ruled that the claimant should pay £4,000 towards the respondent’s costs, taking into account the claimant’s financial circumstances. The claimant appealed, arguing that the Tribunal had adopted the wrong approach when considering the costs issue, the claimant had not been provided with any schedule of costs so as to determine the reasonableness of the costs claimed by the respondent and the Tribunal had failed to consider what proportion of the respondent’s costs were thrown away as a direct result of the adjournment.

The EAT ruled that there was no error of law in the way the Tribunal had assessed the costs figure. The sum assessed was substantially less than the sum that was sought and the sum decided on was a matter which fell to be determined within the judicial discretion of the Tribunal.
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Appeal No. UKEAT/0183/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 March 2011

Before

HIS HONOUR JUDGE REID QC

MR A HARRIS

MR T STANWORTH

MR S CARRUTHERS (APPELLANT)

LONDON SCHOOL OF ECONOMICS STUDENTS UNION (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR S CARRUTHERS (The Appellant in Person)

For the Respondent
Written Submissions

PRACTICE AND PROCEDURE – Costs

Appeal as to the quantum of costs thrown away ordered to be paid by the Claimant. No error of law by the Tribunal. Appeal dismissed.

1. This is an appeal against part of an order made by an Employment Tribunal held at London (Central) presided over by Employment Judge Warren on 2 September 2009. The Claimant's application against his former employer, the London School of Economics Students Union, had been due to be heard that day, but it was not. The Respondent's application to strike out was refused. The case was adjourned to be heard on five days in January 2010, and (this is the material part for today's appeal) the Claimant was ordered to pay the costs of the Respondent in the sum of £4,000 by way of a contribution to their costs. The grounds being given for that decision were set out at paragraphs 21 to 28 of the decision. The Respondent had made its application on the grounds that the Claimant's unreasonable behaviour in preparing for the case had necessitated the adjournment and the Tribunal noted the failures of the Claimant to comply with various orders and pursue matters "as one would have expected".

1. The decision goes on:

"22. This is a constructive unfair dismissal and disability discrimination case and the onus does lie with the Claimant to set out the basis on which he pursues his claim and in particular as of today there is no written witness statement from the Claimant."

1. There had, in fact, been a witness statement dealing with his alleged disability and a document which he described as a pleading but there had been no substantive witness statement dealing with the substance of his claim:

"23. As we stated earlier, [said the Tribunal] we do not accept the Claimant would not have known that he should have prepared a witness statement and also despite what he says in his submission to us, that he did not prepare that witness statement because of his health.

24. The Claimant is presently in a teaching post at a language school and can earn up to £375 per week. The Claimant has liabilities on a credit card and an overdraft, totalling some £14,000 worth of liabilities, lives in a rented flat paying £110 per week, he cohabits with his wife who works.

25. The Respondents seeks their costs wasted, by virtue of the postponement two days of preparation at £1,500 a day, a £1,500 refresher and five hours solicitors costs, in all totalling some £5,800.

26. We do consider that it is because of the Claimant's unreasonable conduct that this postponement has been required.

27. The Claimant did plead that his health was to blame. There was scant medical evidence before us, we only had the letter from Dr Crawling and have commented upon that earlier.

28. Taking everything into account and the Claimant's financial circumstances we make an award of costs against the Claimant in favour of the Respondent and we order the Claimant to pay a contribution of £4,000 towards the Respondent's costs thrown away by reason of the need for postponement."

1. The Claimant sought to appeal against that and other matters and there was a preliminary hearing in relation to his appeal before HHJ McMullen QC, Mr Jenkins and Ms Sutcliffe. They ordered:

"This appeal insofar as it relates the quantum of costs only be set down for a full hearing [then gave time estimate and category].

All other grounds of appeal are hereby dismissed."

1. Thus the only matter which is before us today is the question of the quantum of those costs. The reasons why the matter was allowed to proceed to a full hearing were stated in summary form by HHJ McMullen QC in these words:

"Costs quantum only point is good. Counsel can't charge three days for one day's work, and no consideration of the appropriate rate for solicitor. Other grounds dismissed."

1. The amended grounds of appeal, which had been before the panel of the Employment Appeal Tribunal hearing the preliminary hearing, dealt with costs in this way. They were settled by counsel involved in the matter under the ELAA Scheme:

"Thrown away costs

10. Further and alternatively, the Claimant contends that the Tribunal adopted the wrong approach when considering the cost issue. The Tribunal makes the following findings of fact."

It then sets out the passages in paragraphs 25, 26 and 28 of the Employment Tribunal decision which I have already read:

"Further and alternatively, the Claimant contends that the Tribunal adopted the wrong approach when considering the cost issue. The Claimant was not provided with any schedule of costs so as to determine the reasonableness of the costs claimed by the Respondent. Furthermore, the Tribunal failed to consider what proportion of the Respondent's costs were costs thrown away as a direct result of the adjournment. This matter was re-listed in January 2010 and has since been heard. The Claimant contends that a proportion of the costs claimed by the Respondent would have been incurred in any event and cannot be said to be costs thrown away."

1. The Respondent in its written objections, it having saved further costs by not attending by counsel or, indeed, solicitor today, though they have someone here taking a note, responded in these terms:

"52. Paragraph 10 of the amended Grounds is denied. The Tribunal did not adopt the wrong approach when considering the cost issue.

53. Counsel for the Respondent made the application under Rule 40 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 for the costs thrown away as a result of the postponement, due to the Claimant's unreasonable behaviour in conducting the proceedings, as set out above.

54. Counsel for the Respondent confirmed that his brief for attending that day's hearing was £7,500 but that he was not proposing to claim these wasted costs as he would have to incur these costs in any event for dealing with the reconvened hearing.

55. Instead Counsel made it clear that he was claiming the costs for his attendance for one day at the Hearing and the two days' refresher fee that would be incurred in preparing for the newly adjourned hearing. Counsel's fees were £1,500 per day giving rise to a charge of £4,500 excluding VAT. Further Counsel claimed the costs for his instructing solicitors attending the Hearing on 2 September 2009, 5 hours at £265 per hour which equated £1,300 excluding VAT [in fact, it equates to £1,325 but Counsel was a lawyer and not a mathematician]. This gave rise to the total of £5,800 as set out in paragraph 24 of the September order.

56. Counsel specified that the grounds for the costs application was the adjournment that was required as a result of the Claimant's conduct of the litigation which Employment Judge Warren had already summarised in his judgment. This was on the basis that the Claimant had acted unreasonably in the conduct of the proceedings in that he had brought about the position requiring the adjournment by his deliberate and admitted failure to comply with the Employment Tribunal directions for disclosure, witness statements and his failure to give notice of his change of address, as noted by Employment Judge Warren.

57. Counsel for the Respondent therefore asked that the Claimant be ordered to pay the sum of £5,800.

58. The Claimant then gave evidence under oath.

59. He admitted that he had not exchanged a witness statement but they had misunderstood the Employment Tribunal Order and that he thought he had complied with all other Orders. It transpired that the Respondent had not received a letter which the Claimant states he posted on 30 June 2009.

60. Employment Judge Warren then heard evidence from the Claimant as to his financial means and taking into account all the evidence before him Employment Judge Warren made an Order for a contribution of £4,000 towards the Respondent's costs thrown away by reason of the need for postponement. This is recorded in paragraph 28 of the September Order.

61. As such the Respondent submits that the Tribunal adopted the correct approach when considering the issue of costs.

62. Paragraph 11 of the Amended Grounds is denied. The Tribunal did not adopt the wrong approach when considering the issue of costs. There was no requirement for a Schedule of Costs to be provided as it was a straightforward and simple calculation based upon Counsel's normal fees and the hourly rate of instructing solicitors. Counsel for the Respondent took into account the costs that would have been incurred in any event due to the fact that the matter was relisted in January of 2010 and it was for this reason that he stated that he was not seeking recovery of his brief fee of £7,500 for preparing and attending the Hearing on 2 September 2009. Counsel requested only wasted costs including a refresher fee to enable him to re-prepare for the hearing in January 2010. Instructing solicitor's costs were limited only to their attendance at the hearing of 2 September 2009.

63. As such the contention in paragraph 11, that a proportion of the costs claimed by the Respondent would have been incurred in any event and cannot be said to be costs thrown away, is denied for the reasons set out above."

1. Mr Carruthers has sought in the course of the hearing today to introduce a large number of matters, some of which it appears must have been considered elsewhere on other occasions, many of which arising out of matters which he says he has discovered since the hearing before the Employment Judge and, indeed, I think in some cases since the hearing before Judge McMullen.

1. There has been, however, no application to adduce fresh evidence. Mr Carruthers says that all of the matters that he relies on have been known to the other side, but when they are preparing and dealing with an appeal they are perfectly entitled to say, "if you want to say that the decision should be reversed on account of fresh evidence, then you must do that properly, put us on notice so that we can deal with that application separately". There being no such application, and we make no comment as to whether or not any such application would have had any prospect whatever of success, it seems to us that we have to deal with the matter in accordance with the only matter listed for our determination under the order of Judge McMullen.

1. So far as that is concerned, we have had very considerable difficulty in ascertaining what the error of law is supposed to have been. The Employment Appeal Tribunal is not a tribunal which deals with appeals on question of fact. It can deal only with questions of law. The essence of the point as put in the amended grounds of appeal was that the costs should be limited to those costs thrown away as a result of the adjournment incurred because of the Claimant's failure to comply with earlier orders. That is a perfectly fair ground, but the answer to it is that the costs that were claimed were limited in that way. It may be that another tribunal would have been more robust and might have said to counsel, "I appreciate that this is a five-day hearing which you are going to have to re-prepare for. I appreciate that it may be a very difficult case to prepare given the somewhat blunderbuss approach which the Claimant in person is adopting, but really we think you do not need more than one more day to prepare again for the hearing". It may be that more tribunals than not would have followed that line. But it does not seem to us that it can be said that there is any error of principle or error of law in assessing the sum. The sum assessed was substantially less than the sum which was sought. It is about two-thirds of the sum sought. It was in response to assertions as to the amount of the costs which were being thrown away.

1. So far as counsel's fees were concerned, he rightly did not seek a further brief fee. He had undoubtedly a wasted day's refresher for the day of the abortive hearing before the Employment Tribunal, and he would undoubtedly have to re-prepare and was entitled to charge for re-preparing when the matter came back some months later. It seems to us there is no error of principle in what the Tribunal did.

1. So far as the solicitor is concerned, the Respondent's notice indicates in much fuller form than did the Employment Judge's decision how the fee of five hours work for £265 an hour led to the fee of some £1,800 being sought. That was simply the costs of a suitably qualified solicitor who had had conduct of the matter attending at that hearing.

1. In our judgment, it cannot be said that there was any error of principle. The amount of costs was determined by reference to the costs which had been thrown away and there is no error of law in the assessment which the Tribunal made. Another tribunal might have been harder on counsel and suggested he could have prepared the case again more quickly. Another tribunal might have been harder on Mr Carruthers and suggested that he should pay a good deal more of the £5,800 sought. This was a matter which fell to be determined within the judicial discretion of the Tribunal. They made no error of law and it cannot possibly be said that the decision to which they came lay outwith the wide ambit of their judicial discretion.

1. We appreciate that Mr Carruthers would have liked to raise a very large number of other points before us and, we suspect, in other appeal hearings which either are still ongoing or have now concluded, but so far as this hearing is concerned the ambit of the matters in dispute was a very narrow one. We take the view that there was no error by the Employment Tribunal. Therefore, the appeal must be dismissed.