Appeal No. PA/727/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 23 March 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY

	

GROSS KLEIN & CO	APPELLANT

MRS S COLLINS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R P SCUPLAK
	(Personnel Consultant)
	IRPC Group Ltd
 Stockwell House
 New Buildings
 Hinckley
 Leicestershire LE10 1HW

For the Respondent	IN PERSON

THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT):   This is an Appeal from the refusal of the Registrar on the 27 August 1993 to extend the time in which the Appellants, Gross Klein & Co, could bring an Appeal against an order of costs, made against them in their absence by the Industrial Tribunal sitting at London South on the 16 February 1993.

	When the Appellants were notified of the order of the Registrar the Employment Appeal Tribunal was informed that they wish to appeal to the Judge. 

	In order to decide the question which arises on the Appeal, it is necessary to look at the background to this dispute.  Until the 28 May 1992 Mrs Collins had been employed by Gross Klein & Co as a secretary and office manager she presented a complaint to the Industrial Tribunal for unfair dismissal.  She claimed that she was constructively dismissed due to the actions of her employer.  She had been employed by them from June 1987.  She claimed that she had been constructively dismissed towards the end of April 1992.

	The matter was due to be heard by the Industrial Tribunal on the 16 February 1993.  As far as Mrs Collins was concerned everything was ready for the Hearing.  She attended on that day with her Counsel, her Solicitor and two witnesses.  But no-one turned up for Gross Klein.  The Tribunal made an order that Gross Klein pay to Mrs Collins the sum of £500 in respect of her costs of the Hearing, pursuant to Rule 11(2) of the Industrial Tribunals Rules of Procedure 1985.
	
	It is claimed on behalf of Gross Klein that the reason why no one attended at the date fixed for the Hearing was that the representative who was going to attend, Mr Scuplak, a member of a firm of Personnel Consultants, called IRPC Group Ltd, was instructed to attend,  set out from Leicester for the Hearing, but became ill on the journey.  By the time he arrived in London was not well enough to attend the Hearing.  He telephoned the Industrial Tribunal office about an hour before the Hearing was due to begin and asked for an adjournment.  An adjournment was granted to the 22 February.  

	According to the terms of the order against which Gross Klein wish to appeal, it is stated that the parties attended before the Tribunal this day for the hearing of originating application on the merits of the case, and the Respondents applied for an adjournment because their representative was apparently taken suddenly ill, and had in his possession in Leicester their original documents relating to this case.  Counsel for the Applicant, having contested that application, sought an order for costs against the Respondents in the event of the adjournment being granted.  

	The Tribunal made the order for costs mentioned and adjourned the matter to the 22 and 23 February.

	When the matter came on for Hearing at the adjourned Hearing, Mr Scuplak, who has appeared this morning for Gross Klein, raised the matter of the costs order with the Tribunal.  The Chairman explained that the costs order had been made following the event, that is, the granting of the adjournment.  Mr Scuplak asked the Tribunal to review or revoke the decision.  The Chairman made no decision on that point, but said that it could be dealt with at the end of the case.  No argument took place at that time about the powers of the Tribunal to review or revoke its decision on costs.

	There is some dispute about what happened.  Submissions have been put in by the Solicitors, Talfourds, who were at that time acting for Mrs Collins.  They state that their recollection was that the Chairman of the Tribunal made it clear to the parties on a subsequent day, that is the 1 July, that the Tribunal did not have power to review the interlocutory costs order made on the 16 February.  By that time the order was over 4 months old.

	The position was that the Tribunal Hearing lasted longer than originally estimated.  It went on on the 22 and 23 February, again in April (the decision records hearings on the 15 and 16 April), and there were further two days hearing on the 30 June and 1 July.  According to Talfourds it was made clear by the Chairman on the 1 July that the Tribunal did not have the power to review the costs order.  That recollection does not accord with Mr Scuplak's.  Mr Scuplak's recollection is that on the 1 July the Chairman suggested that the parties make written submissions on three matters.  First, on the merits of the case, which had been investigated, but there had not been full argument, secondly, on the costs of the main hearing, and thirdly on the application by Gross Klein for a review or revocation of the costs order of the 16 February.

	The Chairman according to Mr Scuplak did raise a query about the review powers.  Written presentations were made on the three points mentioned.  The next thing that happened was that on the 13 July a letter was sent on behalf of the Chairman from the Regional Office of Industrial Tribunals at London South, acknowledging the submissions on the first two items and saying in regard to the submissions on the third item (that is, the cost order of the 16 February):

  	"The Chairman of the Tribunal has given careful consideration to your application.  The Chairman is in no doubt at all that the Employment Appeal Tribunal Judgement in the case of Nikitas-v-Metropolitan Borough of Solihull, mentioned in my letter of 7 July, shows conclusively that the Tribunal cannot conduct a review of the Order for Costs as this is an Interlocutory Order and not a decision.  The earlier decision of the Employment Appeal Tribunal in Peter Simper & Co. Ltd -v-Cooke is to the same effect.  Rule 10, which empowers the Tribunal to review its own decisions, does not apply to Interlocutory Orders".       

	That seems to be right, because the power to review at Tribunal's decision, conferred by Rule 10 of the Industrial Tribunal Rules of Procedure Regulations 1985, only applies to a decision; and in the interpretation provision Rule 2 "decision" is defined as in relation to a Tribunal, including a declaration or an order, "other than an Interlocutory Order".   

	The letter went on to state that the application was not, in the view of the Tribunal, on all fours with the variation or revocation of an order to produce documents or to furnish particulars.  In his view the only remedy of Gross Klein in those circumstances was to appeal against the order for costs to this Tribunal.  In the light of that letter, a Notice of Appeal was issued several weeks later on the 3 August 1993.  The Appeal in that Notice of Appeal is against the order of the 16 February (which was erroneously dated the 12 February) and also against the refusal of the Industrial Tribunal on the letter of the 13 July to consider reviewing or revoking that order.  

	The grounds of appeal are that the Industrial Tribunal erred in law in issuing the order without hearing Gross Klein's representative, whose absence on the grounds of sudden illness, necessitated a request for the adjournment;  that the Industrial Tribunal erred in law in issuing the order without considering whether there was any fault on the part of Gross Klein and thirdly, there was an error of law on the part of the Tribunal in refusing to consider either reviewing or revoking the order on the grounds that it had no power to do so.  

	There are more detailed facts in relation to the various grounds of appeal set out in paragraph 5 of the notice.  There is no need to look at those today.  It was in those circumstances that, when the Appeal notice was received here, Gross Klein's representative was informed that it was out of time.  The application for extension was made.  The Registrar refused and it is from that order that there is now an Appeal.

	On the Hearing today, Mr Scuplak, having referred to all the facts, submitted that the time for extending an Appeal should be granted and that I should allow his appeal against the Registrar's refusal.

	Mrs Collins appeared in person at some inconvenience and additional costs to herself.  She pointed out what the position had been at the Hearing on the 16 February.  She set out her account of the matter in a letter to this Tribunal dated the 1 March.  Her main complaint is that she did incur costs attending on the 16 February, which were wasted, because no one turned up for Gross Klein.  She submits that the Appeal against the Registrar's refusal should be dismissed.  She points that she is now representing herself, as her Solicitor's fees have already totalled £4,200, due to the length of time already spent on the case.

	I have sympathy for the position of Mrs Collins.  I have been helped by the additional information which she has provided today.  Mrs Collins informed me that Gross Klein were in fact also appealing against the main decision notified to the parties on the 20 January 1994.  We adjourned for a short while in order to find out the exact position.

	The position is this.  For the reasons notified to the parties, the Industrial Tribunal found in favour of Mrs Collins and awarded her compensation of £10,675 for unfair dismissal.  On the 28 February 1994, that is, within the time allowed for appealing, Gross Klein served notice of appeal.  It also appears that, at the same time, they are pursuing an application for review of the decision, which was submitted to the Industrial Tribunal on the 2 February 1994.

	The documents relevant to the appeal consist of extremely detailed points which Gross Klein wish to make.  The further information does give rise to anxiety on my part that Mrs Collins may be put to unnecessary further expense in dealing with this matter.  What I propose to do is this.  First, I will allow Gross Klein's appeal against the refusal of the Registrar to extend time.  The reason I allow it is that the order for costs was made in the absence of any representations from Gross Klein.  They could not make representations on the question of costs on the 16 February, because no one was there to represent them.  The representations they wish to make about costs have never been considered substantively since then, because, when the Tribunal finally came to look at the question of the order of the 16 February, they decided, for the reasons set out in the letter of the 13 July, that there was no power to review or revoke that order. 

	It is unusual to make an order in the absence of the party.  Normally natural justice requires that both sides are heard.  It is important on this aspect of the case that Gross Klein should be heard.  Rule 11 (2) of the 1965 Rules provides that where the Tribunal has, on the application of a party to the proceedings, postponed the day or time fixed or adjourn the hearing, the Tribunal may make orders against or, as the case may require, in favour a party as at paragraph (1)(a) and (b) of the Rule as respects any costs or expenses incurred or any allowances paid as a result of the postponement or adjournment.  That part of the Rule is directly in point in connection with this Appeal.  

	As I am concerned about the position on the other Appeal and its interaction with this Appeal, I propose to make the following orders.  First, in relation to the Appeal on costs, an affidavit must be sworn and filed within 28 days by Mr Scuplak, and/or by some person in Gross Klein, as to the circumstances in which the application for an adjournment was made on the 16 February.  It will obviously be relevant to include in that affidavit details of when Mr Scuplak was instructed to appear, and a detailed account of the events concerning Mr Scuplak's incapacity to attend the Hearing on the 16 February. 

	I shall also order that the Appeal against the main decision, in the Notice of Appeal dated the 28 February 1994, should no longer be stayed in the light of the application for review.  It should be set down for a preliminary hearing, which need only be attended by the Appellants, not by Mrs Collins.  The Appeal against the order of the 16 February will also be set down as a preliminary hearing.  The two will come on together.  It will be for Gross Klein or their representatives to satisfy this Tribunal that there are arguable points of law arising on both appeals.