Appeal No. EAT/836/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 March 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR K M HACK JP

	MISS A MADDOCKS OBE

MR C WRIGHT T/A MERSEYSIDE & NORTH WALES FENCING	APPELLANTS

MR P DAVIES	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M JONES
(OF COUNSEL)
Messrs P Lloyd Jones & Co
Solicitors
Cambrian Chambers
Earl Road
Mold
Clwyd CH7 1AJ

For the Respondent	NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE
RESPONDENT

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal against the decision of the Industrial Tribunal held at Prestatyn on 11 August 1993.  The Tribunal unanimously decided that Mr Davies, the Applicant, was entitled to proceed with his application for unfair dismissal against the Respondent Mr Wright, t/a Merseyside & North Wales Fencing.  In the Full Reasons notified to the parties on 1 September 1993, the Tribunal unanimously held that Mr Davies had at least two years service, the necessary qualifying period to claim unfair dismissal.  The Respondent was dissatisfied with the decision and appealed by a Notice of Appeal dated 8 October 1993.  The Notice of Appeal sets out 7 grounds of appeal.  Mr Jones, who appeared for the Appellant on this hearing, summarised the grounds of appeal as perversity on the part of the Tribunal and error of law and fact in its conclusion that the Transfer of Undertakings Regulations were applicable to the facts of the case.

	The Appeal was resisted by Mr Davies in an answer dated 11 November.  Steps were taken by this Tribunal to fix a date for hearing.  By a letter dated 10 February, notice was given to the parties that the hearing of the appeal, estimated to last half a day, would take place on 16 March 1994.  

	An application was made by letter on behalf of the Appellant by a firm of solicitors in Clwyd, P Lloyd Jones & Co, for an adjournment.  A letter dated 8 March asked for an adjournment on the grounds that there had been substantial communication with ACAS in order to resolve the claim of Mr Davies.  Certain proposals had been put forward, but negotiations were incomplete.  It was possible that the Appellant was entitled to legal aid.  The appropriate forms had been completed and were being submitted to the Legal Aid Board.  The letter finished:

		"In the circumstances we would respectfully request that this matter be vacated to a date to be fixed in order to allow the aforementioned matters to be resolved as clearly we are anxious to avoid unnecessary inconvenience to the Employment Appeals Tribunal and cost to the parties to the proceedings."

That sentence rings hollow in the light of subsequent events.

	The application for an adjournment was considered.  It was ascertained that Mr Davies objected to the adjournment.  A direction was given that the case would remain in the list for hearing today.

	On 11 March, last Friday, a letter was sent by the Appellant's solicitors.  It was received at this Tribunal on Monday.  It stated that Mr Davies was not minded to agree to the adjournment and that it would appear that this matter would proceed.  Counsel had been engaged on behalf of the Appellant.  The solicitors would advise the Tribunal immediately as to the outcome of the application for legal aid.  The letter mentioned a request to Mr Davies for copies of all documentation.  Rather surprisingly, the letter went on to state that a number of people, in addition to the Appellant, would be giving evidence.  They were Mrs Wright, the Appellant's wife, and two people described as "civilian witnesses", Margaret Pospiech and Glyn Moore.  Reference was made to the production of a bundle of correspondence and contract and conveyancing documentation.  The letter mentioned the "without prejudice" proposals made but not accepted by Mr Davies and concluded:

		"We will be attending upon our client further and in the event of any proposals being agreed, we will contact you immediately thereafter.

		In the circumstances, we trust that the time limit provided will be sufficient having regard to the matters contained herein.  We are arranging with Counsel for the provision to your goodselves of the appropriate authorities to be relied upon at the forthcoming hearing."

	So far as this Tribunal was concerned, today was the effective hearing of the appeal, an adjournment having been refused.  What next happened was that the Clerk of the List, Mr McPartlin, was telephoned at 9.05 am by Mr Davies.   He said that he had received a letter from the Appellant's solicitors informing him that the case for today was cancelled.  He informed Mr McPartlin that the letter had been put through his letter-box at 7pm last night.  He added that he had booked a taxi at a cost of £20 to collect him at 3.30 am so that he could catch a 4.00am train.  He had purchased a train ticket for £83 in advance.  He said he was unable to cancel the taxi which he had booked, as the office closed at 5pm.  He said that he wanted to come here today for the hearing of the appeal.  He was surprised to get the letter by hand, as he had spoken to the Appellant's solicitor at 12 o'clock yesterday.  He also said that in a letter sent here, there was a reference to the parties being in negotiation.  As far as Mr Davies was concerned there were no negotiations. 

	He informed Mr McPartlin that he had lost money on the telephone call to this Tribunal this morning.  He would telephone later to enquire what happened at this hearing.  He wanted his costs.

	When the matter came on for hearing Mr Jones appeared with his pupil.  No solicitors were in attendance.  After Mr Jones had explained the basis of the appeal and criticisms of the Industrial Tribunal decision, we informed him of the telephone call from Mr Davies.  Mr Jones knew nothing about the communication between his solicitors and Mr Davies yesterday.  He knew nothing about the telephone call here. 

	We adjourned for a short time for Mr Jones to contact his instructing solicitors to clarify the position.  He has done that.  We are grateful to him for obtaining instructions, and, in particular, for asking his solicitors to fax a copy of the letter sent to Mr Davies yesterday.  It is one of the most unhelpful letters that this Tribunal has ever seen.  The letter is addressed to Mr Davies.  We are told it was not written by the senior partner who has been dealing with this matter.  He had no sight of it before it was sent.  The letter states that it is delivered By Hand.  It is dated yesterday.  It is under a different reference from that of Mr Lloyd Jones, the senior partner.  The letter says:

		"Dear Sir,

		Re:  Wright -and- Davies

		We refer to the above and would inform you that the Appeal listed for 16th March, 1994 in London has been cancelled as we are not pursuing the same.

		However, we have instructed a barrister to attend at 10.30 a.m. at the said hearing to make representation that the case should be remitted back to the Industrial Tribunal so that new facts may be presented."

The nonsensical nature of the letter is apparent.

	The initial paragraph is a complete misrepresentation of the position.  The statement that the hearing had been cancelled is untrue.  The only person in a position to cancel the hearing was the Tribunal itself.  The Tribunal had already, earlier in the month, refused an adjournment and confirmed that the hearing would proceed.  No copy of this letter was sent to the Tribunal until Mr Jones arranged for it to be faxed this morning.

	It is untrue that the appeal was not being pursued; as the second paragraph states the intention was to pursue the appeal, with the view to obtaining an Order to remit the matter to the Industrial Tribunal for a fresh hearing with new evidence.  The effect of the letter was, first, to mislead Mr Davies into believing that the appeal would not be heard; secondly, to waste the time of this Tribunal with an ineffective hearing when other pressing appeals could have been heard; and thirdly, to obtain an adjournment which only a week or so ago had been refused, as no good grounds were shown for granting an adjournment.

	The Tribunal takes a serious view of this matter.  There has not been fair treatment of Mr Davies.  There has been inconsiderate treatment of this Tribunal.  Although Mr Davies is not here personally to make an application for costs, he made it clear in his telephone call to the Tribunal this morning that he wants costs.  This Tribunal has power to order costs under the 1993 Rules, Rule 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."

The power is confined to ordering costs against a party.  There is no power in this Tribunal, unlike the High Court, to order wasted costs against legal representatives.  The view taken by this Tribunal is that there has been unreasonable conduct on the part of those representing the Appellant in the conduct of this appeal.  The unreasonable conduct consists in writing of the letter of 15 March, late in the day, delivering it to Mr Davies by hand and then attending on the appeal in the absence of Mr Davies in the hope of obtaining an Order for the remission of the matter to the Industrial Tribunal.  

	No such Order could possibly have been made by this Tribunal in the absence of a Respondent who had made it clear throughout that he was resisting the appeal and wished to attend.

	Mr Jones made a number of submissions on costs.  He pointed out that it ought to have been possible to cancel the taxi.  It should still be possible to obtain a rail fare refund, probably with some deduction for administration expenses.  Those are not reasons for declining to order costs.  They are reasons which affect the form of the Order.  What we propose to do is to order costs in favour of Mr Davies on the basis of unreasonable conduct in the proceedings by the Appellant.  We order that the Appellant shall pay such costs and expenses incurred by Mr Davies on taxi fare, train fares and telephone calls as can be substantiated by him and as are not recoverable by him taking appropriate and reasonable steps.

	He is to submit to the Tribunal and to the Appellant's solicitors a statement itemising the costs incurred and the steps taken to recover costs; and if he has been unable to recover costs, a brief statement of why he has been unable to recover them.  When that has been done it will be possible to make an assessment of the precise sum to be paid to him.  In our view, that takes account of the possibility that he may not suffer all the expenses and costs mentioned on the telephone this morning.  The Appellant should not be required to pay Mr Davies costs which he has not in fact incurred or which he could recover by reasonable steps.

	For those reasons we order costs and we adjourn the hearing of this appeal to a new date to be fixed through the Listing Officer on a day and at a time convenient to both parties.