Sykes - in a matter of costs v Wright & Ors UKEAT/0270/15/BA
Appeal against a wasted costs order made against the Claimant's representative. Appeal dismissed.
The Claimant was represented at the ET by the appellant in this appeal. He lost his claims and the Respondent applied for its costs against both the Claimant and the representative. The Claimant and Respondent then reached a compromise but the Respondent still pursued its claim against the representative which was upheld by the ET. The representative appealed on the bases of 1) the doctrine of res judicata or the analogous principles in Henderson v Henderson  3 Hare 100; 2) the ET had wrongly applied the three stage test in Ridehalgh v Horsefield  3 All ER 848; and 3) he had not been treated fairly because he had not been given an adequate opportunity to respond to further written submissions which had been made by the Respondent.
The EAT dismissed the appeal for the following reasons: 1) The doctrine of res judicata did not apply since the parties to the compromise agreement were not the same as the parties to the present application for costs. The issues in the two applications were also not the same. 2) The ET was well aware of the legal principles, having referred to Ridehalgh, and it was entitled to reach the conclusions which it did after applying those principles to the facts before it. 3) On the facts of the case there had been no procedural unfairness.
Appeal No. UKEAT/0270/15/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 14 February 2017
THE HONOURABLE MR JUSTICE SINGH
SYKES - IN A MATTER OF COSTS (APPELLANT)
(2) SOMPO JAPAN NIPPONKOA INSURANCE COMPANY OF EUROPE LTD
(3) EMPLOYMENT LAW CENTRES (RESPONDENTS)
Transcript of Proceedings
JUDGMENT**APPEAL & CROSS-APPEAL****APPEARANCES**
For the Appellant
MR SYKES (The Appellant in Person)
For the Second Respondent
MS NADIA MOTRAGHI (of Counsel)
Messrs Bird & Bird Solicitors
15 Fetter Lane
For the First and Third Respondents
No appearance or representation by or on behalf of the First or Third Respondents
PRACTICE AND PROCEDURE - Costs
The Appellant was the representative of the Claimant in the underlying proceedings in the Employment Tribunal. The Claimant's claims were dismissed. The Respondent applied for its costs against both the Claimant and his representative. The Respondent subsequently reached an agreement with the Claimant, as a result of which it no longer pursued its application for costs against him. However it did pursue its application for a Wasted Costs Order against the Claimant's representative. The ET made a Wasted Costs Order in the sum of £2,000. The Appellant appealed against that Order on three grounds. First, he submitted that the compromise agreement with the Claimant precluded a Wasted Costs Order being made against him, on the basis of the doctrine of res judicata or the analogous principles in Henderson v Henderson  3 Hare 100. Secondly, he submitted that the ET have wrongly applied the three stage test in Ridehalgh v Horsefield  3 All ER 848. Thirdly, he submitted that he had not been treated fairly because he had not been given an adequate opportunity to respond to further written submissions which had been made by the Respondent.
Held, dismissing the appeal:
(1) The doctrine of res judicata did not apply since the parties to the compromise agreement were not the same as the parties to the present application for costs. The issues in the two applications were also not the same. Nor did the principles in Henderson apply since the parties were not the same and also because the Respondent had raised its application for costs against the Appellant at an appropriate time.
(2) The second ground raised what were essentially issues of fact for the ET. The ET was well aware of the legal principles, having referred to Ridehalgh, and it was entitled to reach the conclusions which it did after applying those principles to the facts before it.
(3) On the facts of the case there had been no procedural unfairness. The Respondent's further written submissions did not contain anything which was material to the ET's ultimate decision. Furthermore, the Appellant had had the opportunity to file written submissions if he wished to do so; he had previously filed written submissions and had made oral submissions at a hearing.**THE HONOURABLE MR JUSTICE SINGH****Introduction**
- This is an appeal against a Wasted Costs Order in the sum of £2,000 that was made against Mr Sykes ("the Appellant") by the Employment Tribunal on 12 June 2015. There is also a cross-appeal by the Respondent, which is made on a contingent basis if the appeal succeeds on any of the grounds.
- Before I turn to the substantive appeal before me, I should deal with a procedural appeal that has been lodged by this Appellant against a decision made by the Registrar dated 6 February 2017 by which she permitted the Respondent to file an additional bundle of documents for this appeal hearing. The Registrar notified the Appellant that since an objection was made to that Order the matter should be raised at the outset of this hearing before me. In the meantime, the Appellant lodged a formal appeal against the Registrar's decision. I considered such documents in the Respondent's bundle as counsel on behalf of the Respondent wished to draw to my attention on a de bene esse basis during the course of her submissions. In accordance with the Appellant's request to me at the outset of this hearing, by which he informed me that he wanted to have his appeal against the Registrar's decision considered after the submissions on the appeal he was making, I then invited the Appellant to present the grounds for that procedural appeal.
- By that stage of the hearing, in fact, it had become clear to the Appellant himself that the Respondent's additional bundle contains at least some documents that are relevant to the issues that I have to determine on his appeal, in particular in relation to ground 1 of the appeal, to which I shall return. In those circumstances, the Appellant fairly conceded that he could no longer maintain his objection and did not pursue his appeal. For the record, I make it clear that that concession was rightly made, and I formally dismiss the appeal against the Registrar's decision.
- The issues in this appeal arise from an underlying claim that was made to the Employment Tribunal by a Mr Wright ("the Claimant"). It is unnecessary for present purposes to rehearse at length the details of that claim. The Claimant had been employed as a Marine Underwriter in the London subsidiary of a Japanese insurer ("the Respondent") that sought to merge its London operation with another Japanese insurer. When the employer consulted its staff about the proposed transfer of the undertaking, the Claimant became unhappy with his role in the new organisation. He lodged several complaints and grievances. He eventually resigned on 2 April 2014; see paragraph 1 of the Employment Tribunal's Judgment dated 6 January 2015. By that Judgment the Tribunal - which comprised Employment Judge Goodman sitting with Miss M A E Ebenezer and Mr D Carter - dismissed the Claimant's claims, in part for want of jurisdiction, in part also because complaints of disability and race discrimination and harassment failed. The claim that the Claimant had been subjected to detriment and dismissed by the Respondent for making public interest disclosures also failed. Finally, the unfair dismissal claim against the Respondent failed.
- The hearing that led to that Judgment had taken place over some eight days in October 2014. The Tribunal had also considered the matter on 23 December 2014 and 5 January 2015. Before that hearing had taken place there had been a case management Order made after a hearing that had taken place on 31 October 2014. The Order is dated 3 November and was apparently sent to the parties on 31 December 2014. That Order had set a further hearing, to take place on 19 February 2015 (see paragraph 3). Depending on the outcome of the Liability Hearing, since Judgment had been reserved, that hearing might have had to deal, for example, with the question of remedy (see paragraph 3.3). As events transpired, of course, that became unnecessary. However, as had been envisaged, what the hearing on 19 February was concerned with was any applications for costs. The Respondent did make applications for costs (see the letter from its solicitors dated 5 February 2015). The application was made both against the Claimant under Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations ("the ET Rules") and also against the Claimant's representative, the present Appellant, under Rule 80.
- Before the hearing took place on 19 February 2015 the Respondent reached a compromise with the Claimant. In the light of that compromise, it withdrew its application for costs against him. Although the parties had agreed terms, the Tribunal was not informed of those terms, nor is it suggested that it had to be. This was all in accord with normal practice and procedure. However, the Respondent's application for a Wasted Costs Order against the present Appellant continued. That was the subject of written submissions by each party, to which I shall return. Also, at the hearing on 19 February the parties had the opportunity, and took that opportunity, to make oral submissions. However, as the Employment Tribunal recorded at paragraphs 4 and 5 of its Judgment, two preliminary points were taken by the Appellant that meant that there was insufficient time for the parties to conclude their submissions. In due course Written Reasons were given by the Tribunal for rejecting the two preliminary points that had been taken by the Appellant. As the Tribunal recorded at paragraph 5 of its Judgment, it was agreed that to save costs the merits of the wasted costs application would be decided by the Tribunal, meeting on 17 April 2015 without the parties attending but their having been given an opportunity to submit further written representations.
- A number of case management Orders were made on 19 February, which were sent to the parties on 25 February, as the Tribunal recorded at paragraph 7 of its Judgment. Amongst the case management Orders that were then made were the following. By paragraph 5, by 20 March 2015 the Respondent was to send the Tribunal and the Appellant any further written representations upon its application for wasted costs. By paragraph 6, the Appellant had until 7 April 2015 to file and serve any further written representations on the application for wasted costs.
- There are other elements of the chronology to which I shall have to return when addressing the grounds of appeal, in particular ground 1, which concerns a complaint of procedural unfairness. However, at this stage I shall turn to the Judgment of the Employment Tribunal in relation to the application for wasted costs.
- That Judgment is set out over some ten pages. The Employment Tribunal again comprised the same members as I have previously mentioned. After setting out the procedural history the Tribunal stated at paragraph 11 that by the day before the Tribunal was due to meet, on 16 April, it noted that no further representations had in fact been received, despite the case management Orders to which I have referred. The Tribunal was aware that things had been severely disrupted in Central London as a result of the Kingsway fire on 1 April. Accordingly, enquiries were made to confirm whether and when the parties had sent any representations. The Respondent in fact had sent a submission prepared on 14 April. Late that night - that is, 16 April - the Appellant emailed seeking a postponement of the Tribunal's consideration of the application for wasted costs, saying there had been no Notice of the hearing and he had had no time to respond to the Respondent's submission. He said that he had returned from annual leave overseas a few days earlier and had not been able to read the recent Order, Judgment and Reasons in detail.
- On 17 April, as the Tribunal recorded at paragraph 12 of its Judgment, it considered the application but nevertheless decided not to postpone for the following six reasons:
(1) the Appellant had been present at the hearing when the parties agreed not to attend the further hearing to save costs and when the dates were set;
(2) he had also been sent the Orders on 25 February that recorded the meeting on 17 April and had evidently read them as he had applied for revocation on 7 March;
(3) the Tribunal had the written submission, bundle of documents and bundle of authorities he had prepared for 19 February;
(4) the Tribunal had been told that there was an outstanding appeal and had not seen the Notice of Appeal but could not envisage grounds that merited postponement of the substantive decision;
(5) this was the second occasion on which the panel had convened to consider the costs application, and adjourning again would import cost and delay; and
(6) finality in justice was important.
- At paragraph 13 of its Judgment the Tribunal recorded that in reaching that decision the Tribunal had considered an outstanding application from the Respondent made on 17 March for disclosure by the Claimant's legal expenses insurers, DAS, as the Appellant had not complied with the Tribunal's earlier Order to disclose that correspondence. In the result, as the Tribunal recorded, it decided not to make the Order but instead to decide the substantive issues before it. It concluded (paragraph 13) in the following terms:
"13. … We considered whether there was disadvantage to Mr Sykes in not making representations on the additional material (which he had of course seen, though the Tribunal had not), or to the employer respondent, which may have hoped to find some conflict between advice given to the insurer and the advice given to the claimant, but concluded that finality in justice was more important and that we would consider the application on the material available."
- The Employment Tribunal then summarised the material it had considered to decide the outstanding costs issues at paragraph 14 of its Judgment. At paragraph 14.7 it made reference to the Respondent's further submission dated 14 April with the attached bundle of emails between the Claimant and the Appellant. I shall need to refer to that submission in the course of addressing the grounds of appeal, in particular ground 1.
- At paragraph 15 and following the Tribunal summarised the relevant law it understood to be applicable. It made reference to Rule 80 of the ET Rules, which governs wasted costs applications. It referred to the well known decision in Ridehalgh v Horsefield  3 All ER 848, which sets out a three-stage test. That is set out in terms at paragraph 16 of the Judgment and need not be repeated here. The Tribunal was also referred to the decision in Medcalf v Mardell  3 All ER 721, to which it made reference at paragraph 18.
- At paragraphs 19 to 30 of its Judgment the Tribunal considered one specific aspect of the application for wasted costs, which concerned - and this should be emphasised - only the race claim brought by the Claimant. It was in that context that the Tribunal engaged in a lengthy consideration and discussion of emails that had passed, for example, between the Claimant and the Appellant, in particular about whether there may have been racially offensive terms used and where they had emanated from. It was in the context of that discussion that the Tribunal made reference to the emails and the submission that had been made by the Respondent in its document of 14 April. Of importance, in my judgment, is to note that in the result the Tribunal did not in fact find that this aspect of the case, namely the race claim and whether it should have been pursued, provided any foundation for the Wasted Costs Order that it went on to make (see in particular the terms of paragraphs 27 and 30 of the Tribunal's Judgment). In particular, I note that the terms of paragraph 30 conclude with the following sentence:
"30. … There may have been grounds for making an order against the claimant … but not against his representative."
- It is important to observe that what did provide the foundation for the decision that the Tribunal then made to make a Wasted Costs Order in the sum of £2,000 against the Appellant was his conduct of the hearing. That much is apparent from both the heading that appears before paragraph 31 and the content of the Reasons of the Tribunal that is then set out. The Respondent asserted that the Appellant's conduct consisted of the various elements complained of at paragraph 31. It is unnecessary to set those out in full; the parties are familiar with them. At paragraph 33 the Tribunal was of the view that the Claimant had not been prepared for the hearing in October. As he said at the time, he had expected it to settle. However, as the Tribunal observed at the very end of paragraph 33, that attitude on the part of a lay client does not exonerate a professional representative from a need to be fully and effectively prepared for any hearing. As they put it, he should have his house in order by the start of a hearing, should know that a hearing is effective until a claim is settled and should prepare enough to be ready to start if it does not.
- The Tribunal was also of the opinion at paragraph 33 that there had been during the course of the hearing an element of "buying preparation time" and what it regarded as "diversionary tactics". The Tribunal formed the clear impression, having observed, as it had the opportunity to do, over some eight days the Appellant's conduct, that:
"33. … in our view time wasted [was] through the fault of the representative, whose behaviour was at times exasperating and certainly time wasting. …"
- Furthermore, the Tribunal came to the conclusion that this amounted to:
"33. … improper conduct (if tactical to buy time), or to conduct lacking the competence to be expected of a representative …"
- In either case that would fall within the terms of Rule 80 and could in principle found an application for wasted costs against a representative. At paragraph 34 the Tribunal turned to the question of what additional cost was actually caused to the Respondent by the conduct complained of. The Tribunal was well aware that some of the hearing time had been lost for extrinsic reasons. For example, a day and another 45 minutes were lost through the unavailability of Tribunal members. However, it was important to observe that that does not exonerate legal representatives from responsibility. It stands to reason that if they had not acted in a way that a Tribunal regards as improper or otherwise founding an application for a Wasted Costs Order, the mere fact that there may have been other delays that were entirely caused by extrinsic factors does not mean that legal representatives will not be liable to pay wasted costs. It follows that the hearing might well have been shorter, even allowing for other delays. It also follows that there might not have been a need then to have an opportunity for further written submissions to be made some time after the eighth day of this hearing. This is the point that the Tribunal made at paragraph 35 of its Judgment when it said that the case could still have finished in time but for the Claimant's conduct on day eight. There were in fact some written submissions by the Respondent, there were oral submissions by the Respondent and also longer oral submissions by the Appellant on behalf of the Claimant. Nevertheless, it was then submitted that there was not an opportunity to set out matters fully. Indeed, I am informed that the Appellant told the Tribunal that he had been writing submissions the evening before to assist in this process but had fallen asleep in doing so.
- The Tribunal also noted that it was submitted that there should be recusal but was concerned that that application to recuse was made conditionally only if a postponement was refused. As the Tribunal noted at paragraph 36, this carried a strong suggestion that it was made to buy time and to achieve a postponement in fact if refused in principle, as it was: "Such conduct is improper". The Tribunal concluded its reasoning on this aspect of the matter at paragraph 37 as follows:
"37. … the respondent was put to extra expense. We have considered whether this cost should be paid by the representative. Exact timing of hearings is not always possible. Difficulties do arise. However, in this case, there was so little time left because of other conduct of the claimant's [representative] during the hearing, so that when he was unable to prepare a submission as fully as he wished, this item clearly overran and caused expense, and was only caused by the claimant's representative, whose lack of preparation from the outset was the prime cause. Mr Sykes has argued that a written submission was reasonable, otherwise the Tribunal would not have allowed it, but it would not have been necessary to permit it had the claimant's representative been adequately prepared and not wasted time on so many applications in the course of the hearing. …"
- Finally, for present purposes, it is relevant to refer to paragraph 39, which has the heading "Interaction with the Claim against the Claimant" and, so far as material, states:
"39. We have not been presented with an argument why in principle the claimant's having agreed costs of itself extinguishes any claim for costs wasted by his representative. We are aware that as the respondent reached terms with the claimant on the claim for costs against him, it is possible there may be an element of double recovery, in whole or in part, to be offset. We do not know what was agreed. … In our view, given the limited scope and amount of the award we have made when compared with the full amount of costs sought, double recovery is not a concern."
- In fact, the Appellant informs this Appeal Tribunal that he did wish to argue and made it clear to the Employment Tribunal that the compromise reached with the Claimant did extinguish any claim for wasted costs against him. Be that as it may, the present appeal raises that ground of appeal as a matter of substantive argument, and I propose to deal with it on its substantive merits.
- For present purposes, earlier matters having fallen to one side as a result of the well known procedures in this Appeal Tribunal, there are three grounds of appeal that remain to be considered. The parties have found it convenient to present their arguments in a slightly different order. I intend to address the arguments in the same order as the Appellant advanced them. Accordingly, I shall address ground 3 first, which relates to a jurisdictional argument based on the doctrine of res judicata or similar principles; secondly, I shall address ground 4, which relates to the suggestion that the Employment Tribunal failed properly to consider the three-stage test in Ridehalgh and/or misapplied it; and thirdly, I shall consider ground 1, which raises a complaint of procedural unfairness in the way in which the Employment Tribunal considered the wasted costs application.
- The Appellant submits that the Employment Tribunal lacked jurisdiction to make a Wasted Costs Order at all in the present case in light of the compromise that the Respondent had reached with the Claimant. He submits that there were two applications for costs made on essentially the same grounds and that once one was compromised there was no legal basis on which the second could be pursued. He relies upon the doctrine of res judicata. He reminds this Appeal Tribunal that similar principles apply not only where there has been a considered determination of a case by a Court or a Tribunal but also where parties reach a compromise (see Foskett on Compromise 8th Edition, 2015, at chapter 6). Insofar as he needs to, the Appellant also submits that he can rely on principles that are akin to those of res judicata, namely the doctrine in Henderson v Henderson**  3 Hare 100.
- I do not accept these submissions on behalf of the Appellant. I accept the Respondent's submissions in response. These arguments founder on these fundamental objections. First, the doctrines that are relied upon by the Appellant apply to the same parties. See, for example, Arnold v National Westminster Bank plc  2 AC 93 at page 105D, where Lord Keith of Kinkel said:
"… where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue. …"
- Here, of course, the Claimant and the Appellant are not the same parties. Secondly, I also accept the submission made by the Respondent that the issues that arise on an application for a Claimant under Rule 76 are different to issues that arise in the case of a representative under Rule 80. The issues are not the same, and therefore the doctrine of issue estoppel and anything akin to it cannot apply. The Appellant also submitted, basing himself on Foskett at paragraphs 6 to 41, that the present position is analogous to where there is an action against joint tortfeasors. If there is a compromise against one, he submits, there cannot be pursuit of an action against the other. However, it seems to me that that founders on the proposition that the Appellant himself advances: that in that situation the two joint tortfeasors are jointly and severally liable and the cause of action is one and the same. In the present case, as I have already mentioned, the issues that arise are not the same.
- Finally, in relation to the doctrine in Henderson v Henderson, I accept the Respondent's submission that that applies so as to preclude a party from raising in subsequent proceedings matters that were not in fact adjudicated upon in earlier proceedings, or, by way of analogy, the subject of compromise, but could and should have been raised earlier (see Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd . In the present case, by way of contrast, as the Respondent submits, the issue of wasted costs was raised at the appropriate time and indeed at the same time as the issue of costs against the Claimant himself. As I have already mentioned, they were both raised in the Respondent's application dated 5 February 2015. The fact that one was subsequently compromised does not in any way, in my judgment, preclude pursuit of the other. Accordingly, ground 3 is rejected.
- The Appellant submits that the Order "was made in error as the facts did not meet stages one, two or three of the three-stage test in Ridehalgh" (see paragraph 23 of his skeleton argument). That submission on its terms potentially raises difficulties. As is well known, appeals to this Appeal Tribunal lie on points of law and not on points of fact. True it is that on certain occasions conclusions of the Employment Tribunal as to matters of fact may be reversed on appeal by this Tribunal; for example, if a finding is perverse. In the present case, what, as I understand it, the Appellant principally submits is that the Employment Tribunal failed to direct itself correctly as to the relevant legal principles. He further complains that its conclusion was inadequately reasoned and did not comply therefore with the well known judgment in Meek v City of Birmingham District Council  IRLR 250.
- I reject those submissions. The Employment Tribunal's Decision must be read fairly and as a whole. I have set out the material parts of it earlier in this Judgment. In my judgment, the Employment Tribunal was well aware of the legal principles that it had to apply, which it summarised, as I have mentioned, from paragraph 15 of its Judgment. In particular, it referred to the relevant authorities of Ridehalgh and Medcalf at paragraphs 16 and 18. What then followed was essentially an application of those well known principles to the particular facts of the case before it. So far as material, the Employment Tribunal's reasons appear at paragraphs 31 to 37 of its Judgment, which I have already rehearsed. In my judgment, the Employment Tribunal, having witnessed what the conduct of the parties' representatives had been like during an eight-day hearing, was in a good position to decide whether the three-stage test was satisfied on the facts of the present case. In my judgment, it was perfectly entitled to come to a conclusion in the alternative as to the conduct of the Appellant, as it did at the end of paragraph 33 of its Judgment. Either of the bases that are mentioned there - that is, improper conduct or conduct lacking the competence to be expected of a representative - would found an application for wasted costs. The Employment Tribunal then carefully considered the question of causation in the ensuring paragraphs. In my judgment, it was perfectly entitled to reach the commonsense view that it did, in particular in its conclusion at paragraph 37, which I have already cited. Accordingly, ground 4 is rejected also.
- The Appellant submits that the Employment Tribunal was guilty of procedural unfairness in not giving him any reasonable opportunity to respond to the written submissions that had been made by the Respondent on 14 April 2015. He received those on 16 April. Indeed, they were sent by email only after working hours at 4.32pm on that date. Furthermore, the Appellant submits that the Employment Tribunal acted unfairly in not granting his application for an adjournment of its consideration of the application that was to take place the following day, on 17 April. He reminds this Appeal Tribunal that it was not auspicious that the Employment Tribunal misrecorded its own earlier case management Order at paragraph 10 of its Judgment. At paragraph 10 the Tribunal stated that the case management Order sent on 25 February directed that the Appellant should send any further written representations by 20 March and that the employer Respondent should reply by 7 April. In fact, as we have already seen in my reference to the chronology, the Orders were the other way round. It was envisaged by the Tribunal's Orders that the Respondent would file any further written submissions by 20 March so that the Appellant would have the opportunity to reply to those having seen them by 7 April.
- In this context, the Appellant also reminds this Appeal Tribunal of what was said by Lord Bingham in Medcalf at pages 733-734; in particular, in relation to matters of procedural fairness, see page 734A-B, where Lord Bingham emphasised that in the context of applications for wasted costs against legal representatives it was particularly important to remember the rule applicable in all civil and criminal proceedings "that a party should not be condemned without an adequate opportunity to be heard". It is also important to recall the passage later on page 734F-J where Lord Bingham cited the judgment of the Privy Council in Harley v McDonald  2 AC 678 at paragraph 50:
"As a general rule allegations of breach of duty relating to the conduct of the case by a barrister or solicitor with a view to the making of a costs order should be confined strictly to questions which are apt for summary disposal by the court. Failures to appear, conduct which leads to an otherwise avoidable step in the proceedings or the prolongation of a hearing by gross repetition or extreme slowness in the presentation of evidence or argument are typical examples. The factual basis for the exercise of the jurisdiction in such circumstances is likely to be found in facts which are within judicial knowledge because the relevant events took place in court or are facts that can easily be verified. Wasting the time of the court or an abuse of its processes which results in excessive or unnecessary cost to litigants can thus be dealt with summarily on agreed facts or after a brief inquiry if the facts are not all agreed."
- After that citation, Lord Bingham said as follows:
"Save in the clearest case, applications against the lawyers acting for an opposing party are unlikely to be apt for summary determination, since any hearing to investigate the conduct of a complex action is itself likely to be expensive and time-consuming. …"
- It is in this context that it is important to recall, as I have been shown by counsel for the Respondent at this hearing, the fuller details of the procedure that had been followed in the Employment Tribunal, in particular leading up to its hearing on 19 February 2015 and subsequently. Before the hearing on 19 February took place, each of the relevant parties had the opportunity to file written submissions on the wasted costs matter. Each of those parties took that opportunity. I have seen the Respondent's submissions, which appear in the supplementary bundle from page 88, and the Appellant's submissions, which appear in the same bundle from page 40. I am satisfied that in those documents the parties were able to set out their positions fully. In particular, the Appellant was able to deal with the merits of the application against him. Furthermore, it is important to recall that at the hearing on 19 February the parties had the opportunity to make oral submissions to the Employment Tribunal. Although the Tribunal on that date made the case management Orders to which I have referred, which it then sent to the parties on 25 February, the fact is that the procedure that was adopted then took a slightly different course, for various reasons. The fact is that neither party availed itself of the opportunity to file further written submissions by the date that was stipulated in the case management Order. However, I accept the Respondent's submission before me that the Appellant's opportunity to file any written submissions that he wished to was not dependent or contingent upon the Respondent doing so. He had a freestanding right under the Order to file written submissions by 7 April if he wished to do so.
- In the meantime various other applications were made by the parties. On 7 March the Appellant applied for revocation of certain aspects of the earlier Orders. That application was refused. The Respondent, for its part, applied to make an Unless Order, an Order that had been made for disclosure of correspondence with the legal expenses insurers DAS. That also was refused. In the context of those procedural issues, the Respondent chose, admittedly late, to file what it called interim submissions on 14 April, served on the Appellant only on 16 April. Those I have considered carefully and appear in the additional bundle of supplementary documents from page 67.
- The interim submissions concerned the emails that had been in fact disclosed, as I understand it from counsel for the Respondent, by the Claimant himself. Those emails related to the race claim issue. As I have already mentioned, in the Judgment under appeal the Employment Tribunal concluded that issue against the Respondent. It did not regard pursuit of the race claim as in any way laying a foundation for the wasted costs application being made. Most of the interim submissions, in particular from paragraph 22, dealt with those emails and with the race claim issue. However, the Appellant fairly points out that there is one reference to more general matters. That is to be found at the end of paragraph 25 of the interim submission in the additional bundle at page 70. For the sake of completeness, I will quote the entirety of paragraph 25:
"25. These are matters which may evidence Mr Sykes'/ELC's unreasonable/negligent/ improper pursuit of the race discrimination claim and/or a failure to advise Mr Wright to withdraw some or all of the allegations of race discrimination and/or may in part account for Mr Sykes'/ELC's unreasonable conduct during the trial."
- However, as counsel for the Respondent submitted before me, that last clause is expressed in general terms and does not make any specific allegation about the conduct of the Appellant during the trial.
- The Appellant also placed reliance on paragraph 26. However, I do not read that paragraph as in any way suggesting that the Respondent was placing reliance on any wider matters than the race claim issue, for example his conduct during the trial. It was simply reserving the Respondent's position so that, as the paragraph concluded:
"26. … Should Mr Sykes and/or ELC do so, the Respondent Employer would seek the opportunity to comment on any such information. [In other words, if they should file any further documentation or information advancing any explanation for their conduct that is the subject matter of the wasted costs application]"
- As I have already mentioned, the terms of the Employment Tribunal's Judgment do not, in my view, depend upon or rely upon any of the submissions that were made in the Respondent's interim submission of 14 April save to the extent that they deal with the race claim issue. That issue, as I have already said, was determined against the Respondent and not in its favour. Accordingly, I accept the submissions that have been made on behalf of the Respondent on this issue. There was no procedural unfairness in the circumstances of this case, given the totality of the circumstances. By way of summary, as the Respondent has submitted before me, the Appellant had already had a reasonable opportunity to make written submissions on the wasted costs application and had done so at length in writing in February. Further, he had had the opportunity to make oral submissions at the only oral hearing that had ever been contemplated on 19 February. He was aware that there was to be no further oral hearing, in particular on 17 April. He had the opportunity to make written submissions by 7 April whether or not the Respondent had chosen to do so. Finally, as I have already said, the Respondent's interim submission of 14 April in fact contained nothing that was material and therefore that fairness required that the Appellant be given an opportunity to reply to.
- Furthermore in this context, I bear in mind the reasons that were given by the Employment Tribunal for not granting an application for a further adjournment at paragraphs 12 and 13 of its Judgment. As the Respondent has submitted before me, that was essentially a case management decision. Although that does not render it immune from challenge on appeal to this Tribunal, nevertheless it is well recognised that Employment Tribunals enjoy a wide margin of appreciation in such case management decisions. They are well placed to make such Orders. In that context, I was reminded by counsel for the Respondent of the recent decision of this Appeal Tribunal in [Harris v Academies Enterprise Trust]()  IRLR 208 in the judgment of the then President, Langstaff J, at paragraphs 32 and 33. It is unnecessary to set those passages out in full. They support the Respondent's submission that although the stricter approach contained in the present version of the Civil Procedure Rules is not directly applicable in the employment context, nevertheless delivering justice in employment law does not consist only of fairness to the parties in deciding the issues. Delivering justice includes doing so within a reasonable time. Indeed, that is guaranteed by Article 6 by the European Convention on Human Rights and Fundamental Freedoms. A Tribunal must also have regard to cost, and, as Langstaff J said, overall justice means that each case should be dealt with in a way that ensures that other cases are not deprived of their own fair share of the resources of the Tribunal. These were all matters that were quintessentially for the judgment of the Employment Tribunal, being familiar, as it was, with the details of this case.
- Accordingly, I have reached the conclusion that ground 1 must also be rejected. There was no procedural unfairness in this case, and there was no breach of the right to a fair hearing in Article 6 of the Convention as set out in Schedule 1 to the Human Rights Act 1998.
- For the reasons I have given, this appeal is dismissed. Since the cross-appeal by the Respondent was made on a contingent basis only and that contingency has not arisen, accordingly it is not necessary for me to consider the cross-appeal any further.
Published: 27/04/2017 13:39