This appeal related to an application for wasted costs prior to the determination of the substantive issues in the case, which, the EJ agreed, would be an unusual course. However, subsequent events meant the appeal was not necessary as the claim was struck out because the claimant did not comply with unless orders.

The EAT also made observations about the delay in the ET producing a written record of the Tribunal judgment.
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Appeal No. UKEAT/0362/12/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 23 January 2013

Before

THE HONOURABLE MR JUSTICE UNDERHILL

MRS L S TINSLEY

MR S YEBOAH

MRS J FELICIEN (APPELLANT)

(1) METROPOLITAN POLICE AUTHORITY

(2) COMMISSIONER OF POLICE OF THE METROPOLIS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR MICHAEL SHRIMPTON (of Counsel)
Instructed by:
Charles Henry
3rd Floor
85 Western Road
Romford
RM1 3LS

For the Respondents
MR MARK THOMAS (of Counsel)
Instructed by:
Weightmans LLP
Second Floor
6 New Street Square
New Fetter Lane
London
EC4A 3BF

PRACTICE AND PROCEDURE – Costs

Appeal against decision to hear wasted costs application prior to completion of proceedings – Dismissed because decision superseded by subsequent developments – Observations about undesirability of delay in producing a written record of Tribunal judgments.

1. We have discussed with counsel the utility of this appeal in the light of the events which have occurred since it was lodged, and we have formed the clear view that it now has none. Mr Michael Shrimpton of counsel who appears for both the Claimant (who is named as the Appellant on the Notice of Appeal) and for Charles Henry, her representatives, (who should have been so named) has not sought to dissuade us from the view which we have formed, but we have thought it right not to take up of his offer of withdrawing the appeal but rather to make our own decision on the point, and to give brief reasons, so that there is no misunderstanding about the basis on which we and the parties have proceeded. We can, however, in those circumstances do so much more briefly than would otherwise have been required.

1. The Notice of Appeal is against the decision of the Employment Tribunal made on 2 June 2012. Although it appears to raise some other aspects of that decision it is in substance, as Mr Shrimpton has confirmed, an appeal only against the Tribunal's decision to determine a wasted costs application which the Respondents had made against Charles Henry at a forthcoming Pre-Hearing Review to be listed on 3 July. Although Mr Shrimpton's skeleton argument raised various points about the potential merits of such an application – and indeed he initially sought to raise a further such point by way of amendment – the only issue in fact raised by the circumstances of the appeal was, and could only have been, whether it was a proper exercise of the Tribunal's discretion to decide to determine the application for wasted costs prior to the determination of the substantive issues in the case. Mr Shrimpton rightly observes that that would be an unusual course. It will generally be undesirable, for various reasons, for an application for wasted costs against a party's representatives to be considered while the underlying proceedings are still pending, at least while that representative continues to act for the party in question. Mr Shrimpton refers to the decision of Aldous J in Filmlab Systems International Ltd v Pennington and Ors [1994] 4 All ER 673. It was the fact that this would be an unusual course which decided the President to allow the appeal to proceed on the sift. However, the fact that a course may be exceptional does not mean that it was necessarily wrong. The question, if the appeal were to proceed, would be whether in the particular circumstances of the present case there were factors which rendered it just to depart from the normal course. Mr Thomas, for the Respondents, made it clear that his case would have been that Charles Henry had behaved in so unreasonable and irresponsible a manner that a decision on their conduct in the form of a wasted costs order was necessary in order to enable the case to proceed justly.

1. The subsequent events which in our view make the decision of that issue irrelevant can be summarised as follows. The PHR fixed for 3 July proceeded, though neither the Claimant nor Charles Henry appeared. The Tribunal decided not, after all, to determine the wasted costs application at that stage. Its reason for doing so was the fact that the present appeal had been lodged, but the reasons do not matter: what matters is that in the event it did not take the course to which the Claimant had objected. However, it did make unless orders in respect of various other case management steps. The steps in question were not taken within the prescribed time, and as a result the Claimant's claims were automatically struck out with effect from 2 October 2012.

1. Since the Claimant's claims are struck out the issue potentially raised by this appeal, as we have outlined it, is obviously now of no significance, since if the Respondent does pursue the wasted costs application there will be no question of it being determined prior to the determination of the liability issue.

1. The position is superficially, but not in fact, complicated by the fact that the Claimant has appealed against the striking out of her claim. That appeal has been rejected on the sift, but an application under rule 3 (10) of the Employment Appeal Tribunal Rules 1993 (as amended) is pending. If that application, and the substantive appeal, eventually succeed the result will be that the proceedings in the Employment Tribunal will revive, and it is then theoretically possible that the Respondent might again seek to have its wasted costs application heard in advance of the determination of the substantive issue. Mr Thomas has indicated, though making it clear that he had no formal instructions, that it is in practice very unlikely that the Respondents would take that course unless there were further conduct on the part of Charles Henry of a similar character to that of which the Respondents complained before, such that it was thought necessary to apply for the wasted costs order in advance of the final determination of the case. The Respondent is not bound by those indications though they seem to us to reflect the reality of the situation. However, the real point is that if such an application were to be made, and the Tribunal were to accede to it, that would be a different order, made by the Tribunal in different circumstances, from the order now under appeal; and its right to make such an order could not be governed by the outcome of the present appeal, which would necessarily be concerned with the circumstances of May 2012 and not with whatever the circumstances would be on such a hypothetical future application.

1. For those reasons, as we have said, it seems to us that there is nothing to be gained by the pursuit of the present appeal and it should be dismissed for that reason. Mr Shrimpton tried to encourage us to express some views about the merits of the underlying application, and in particular about the point which he had initially sought to have introduced by way of amendment, which was to the effect that no wasted costs order can be made by reason of the provisions of rule 48 (4) of the Employment Tribunal Rules of Procedure. We decline to say anything about the substance of that point. The fundamental objection is simply that the issue is not before us and it would not be right for us to express any views about it; but in any event the point raised would appear to be one of fact, on which it seems to us that quite a careful factual inquiry might well be needed into the terms on which Charles Henry were acting.

1. We wish to mention two procedural errors which we noted in the handling of this case by the Tribunal. They are of no significance to the appeal, but they are both of a kind which we have encountered several times and which it is worth drawing attention to because they can lead to real problems.

1. First, the order of 2 May 2012 was apparently made orally at the hearing on that date, where the Claimant did not appear and was not represented. It required the Claimant to take various steps, one by 8 June and another by 15 June; as well as, as we have said, fixing a hearing for 3 July. But that order was not recorded in writing and signed by the Judge for almost a month: it was in fact signed on 31 May and sent to the parties by the Secretary on 1 June (though not received until several days later because of the Jubilee holiday). We do not know why that delay in signing and sending the Judgment occurred. It may be that it was thought desirable to wait until the Judge was in a position to produce his written reasons. If so, that was, with respect, a bad reason. It was important that the Claimant and her representative know authoritatively from the start what orders had been made, and although it appears that the substance of those orders was communicated in correspondence from the Respondents that is not the same as having an order from the Tribunal. If the Judge needed some time to prepare his reasons they could have been sent separately at a later date. Once an order has been made orally, a written record must be made and sent to the parties as soon as possible, and all the more so where particular steps are ordered to be taken by a party who was not present. (We raise this point, as we have said, because it is important in principle. But the delay did in fact cause material difficulty in the early stages of this appeal. The President when allowing the case to proceed asked why the appeal had been delayed until the eve of the PHR on 3 July and directed that an appropriate representative of Charles Henry should swear an affidavit. Such an affidavit was sworn. It is in many ways an unsatisfactory document, but the absence of any order was at least part of the explanation relied on.)

1. Secondly, the Tribunal on 6 November issued what is described as a "judgment" to the effect that the claim was struck out, giving the operation of the relevant part of the order of 3 July as the reason for the strike-out. Where a claim is automatically struck out by reason of the operation of an unless order, it is inappropriate to produce a further judgment: rather, the proper course is for the Tribunal simply to write to the parties recording what has already occurred by reason of the earlier order.