Thomas Davin v Alison Acton (an Environmental Health Officer of Trafford Council): 2413772/2019
JUDGMENT
The appeal will be dismissed on withdrawal 21 days after this Judgment is sent to the parties unless before that time the appellant has confirmed in writing that he does not want this judgment to take effect.REASONS
[1]On 10 October 2019 Mr Davin lodged an appeal under section 24(2) of the Health and Safety at Work Etc Act 1974 against a prohibition notice issued by the respondent on 25 September 2019 in her capacity as an Environmental Health Officer employed by Trafford Council. The notice related to the condition of wooden stables at the riding school and livery premises at Ashton Hall Equestrian Centre in Sale.[2]By letter of 21 October the parties were notified that the appeal would be heard on 5 November 2019[3]On 29 October 2019 Trafford Council provided written representations and witness statements, and confirmed in a covering letter that following a further visit to the premises on 25 October 2019, it considered that the prohibition notice had been complied with. Withdrawal[4]At 6.14pm on 4 November 2019 Mr Davin sent an email to the email address Manchester@justice.gov.uk giving the case number for the appeal and saying that he wished to withdraw his appeal. He apologised for the late notification.[5]That email was not received by the Employment Tribunal. The correct email address is ManchesterET@justice.gov.uk . However, Mr Davin had copied his email to Ms Acton. She did not see it until the following morning, and at 7.36am on the morning of the hearing she forwarded the email to Trafford Council’s solicitor, Ms Lenahan.The Hearing
[6]Ms Acton attended the hearing today together with the other witness, Nicola Duckworth. The instructing solicitor Ms Lenahan also attended to support counsel. There was no attendance by or on behalf of Mr Davin.[7]I was provided with a copy of Mr Davin’s email at 9:30am. It was clear to me that the final hearing was no longer required, but the email had not been sent to the Employment Tribunal. The Tribunal had received it only through the respondent’s representatives. I therefore considered it appropriate to dismiss the appeal on withdrawal but to delay that Judgment taking effect for 21 days.[8]If Mr Davin has no objection to the dismissal of his appeal then he need take no action and this Judgment will take effect. Costs Application – This Hearing[9]At the conclusion of the hearing Mr Hughes applied for costs on behalf of the respondent. His application was about the costs of attending the hearing on 5 November 2019.[10]Rule 76(1)(a) empowers a Tribunal to make a costs order requiring one party to an appeal to pay the legal costs of the other, or the costs of a witness in respect of expenses incurred in connection with attendance at the Tribunal, where he has acted “disruptively or otherwise unreasonably” in the way part of the proceedings have been conducted.[11]Mr Hughes said that the timing of the withdrawal was unreasonable or disruptive. If Mr Davin had withdrawn the appeal by email during the working day on 4 November, or indeed in the week before the hearing, the Tribunal could have dismissed the appeal on withdrawal and cancelled the hearing. There would have been no need for any attendance.[12]The costs sought are as follows.[13]The solicitor for the respondent has spent two hours at £72 per hour dealing with and attending the hearing today. No VAT is chargeable on that figure of £144.00.[14]The fees for Mr Hughes for all preparatory work and his attendance today were £1,000 plus VAT, making a total of £1,200.00.[15]The witness expenses incurred are one hour each for Mrs Acton and Mrs Duckworth. Their time is charged at £79 per hour. That is a total of £158.00. No VAT is chargeable.[16]The total claimed by way of costs and witness expenses is therefore £1,502.00[17]On the face of it this application seems well-founded but there may be reasons why the appeal could not have been withdrawn any earlier. I will not make any decision on this application until Mr Davin has had a chance to respond to it within 21 days of the date upon which this Judgment is sent to the parties.[18]Any reply made by Mr Davin to the costs application must be copied to Trafford Council, and any further comments made by the council on such a response must be made within 14 days of receipt of it.[19]I will deal with the application on paper without a further hearing unless Mr Davin requests a hearing in his response.[20]To assist Mr Davin in considering this application I make the following points:(a) The focus of any response should be the justification for withdrawing the appeal after working hours on the eve of the hearing. The key issue is whether it could reasonably have been withdrawn any earlier in a way that would have enabled Trafford Council to avoid attending the hearing today.(b) Even if the timing of the withdrawal was itself unreasonable, it does not follow that all the costs and witness expenses were reasonably incurred. Mr Davin can challenge the reasonableness of any particular item or the amount claimed.(c) If he wants, the Tribunal can take into account the ability of Mr Davin to pay any award in deciding whether to make a costs order and if so in what amount. If Mr Davin wishes his ability to pay to be taken into account he will need to provide details of his financial position together with supporting documentation. Possible Further Costs Application – Whole Case[21]Mr Hughes also indicated that the respondent was considering making an application for the costs of the whole case on the basis that it had enjoyed no reasonable prospect of success. The Tribunal has power to make an order in those circumstances under rule 76(1)(b).[22]If any such application is to be made it should be made in writing within 14 days of the date upon which this Judgment is sent to the parties. Full details of the basis for the application and the amount claimed must be provided.[23]Mr Davin will have 21 days to respond to that application before I give it further consideration.[24]I might be prepared to deal with any such application without a further hearing, but there will be a costs hearing if(a) either party requests such a hearing or(b) I consider such a hearing is appropriate.Introduction
[25]I had no written response from Mr Davin to this application.[26]I was satisfied that although the withdrawal was a reasonable step, it was done unreasonably late. Mr Davin knew that the hearing was on 5 November 2019. No good reason was given as to why the appeal could not have been withdrawn any earlier. A withdrawal even two or three hours earlier would have enabled the hearing to have been cancelled and the respondent would not have incurred the costs of attending. The unreasonable timing of the withdrawal had resulted in costs being incurred unnecessarily. I was satisfied that the power to award costs had arisen.[27]I considered the amount claimed. Counsel’s fees for preparatory work for attendance were £1,000 plus VAT making a total of £1,200. The respondent’s solicitor had also spent two hours attending the hearing at £72 per hour, making a total of £144. In addition the respondent herself and her colleague, Mrs Duckworth, had attended to give evidence and their time was claimed at £79 per hour for one hour each. That was a total of £158.[28]If Mr Davin had acted reasonably the appeal would have been withdrawn over a week before the hearing. That is primarily because on 29 October 2019 the respondent wrote to him and explained that the prohibition notice was now lifted and invited him to withdraw the appeal. Had he done it at that stage counsel’s fees would not have been incurred and there was no need for the solicitor to attend the hearing either. I was satisfied that the amounts claimed in respect of work by solicitor and counsel were reasonable and should be paid by Mr Davin.[29]As for the time of the witnesses, however, I considered that outside the scope of the rules. Rule 74(1) defines “costs” as meaning: “Fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing).”[30]In my judgment that is restricted to expenses (such as for travel) incurred by a witness. It might possibly extend to loss of earnings. It does not extend, however, to what is effectively a charge for the time spent by the witness.[31]I therefore decided that Mr Davin should pay the respondent costs in the sum of £1,344.00. Costs of Hearing 28 February 2020[32]The application for costs in relation to the hearing on 28 February 2020 was made on the basis that Mr Davin had acted unreasonably in not applying in advance for the hearing to be adjourned. The fit note in respect of Mrs Davin which he produced at the hearing had been issued on 24 February 2020 and the respondent said that the application should have been made earlier in the week so as to avoid the hearing taking place.[33]Mr Davin did not take the opportunity of responding in writing to this application.[34]Having considered these points I decided that no costs award should be made. Mr Davin is not familiar with employment tribunal proceedings, and may not have appreciated that he could ask in advance for a postponement. In any event, even if he acted unreasonably in not doing so, a postponement would have meant a hearing would have been required at a later date. The respondent would have incurred those same costs then anyway. Costs of the whole appeal[35]The respondent argued that the appeal had enjoyed no reasonable prospect of success. In support of that contention a number of points were made including the following:(a) There had been no appeal against previous prohibition notices in respect of the wooden stables in June 2018, and work had been done following those notices which meant that the prohibition notice was complied with by 7 September 2018;(b) The assertion in the notice of appeal that there had never been an injury to a horse or person did not undermine the view of the respondent, an experienced inspector, that there was a risk of injury;(c) That assertion was in any event untrue because there had been a serious incident at the centre in 2010 in which five animals died;(d) Mrs Davin had not appealed her prohibition notice;(e) Mr Davin had undertaken repair and maintenance work in respect of the stables by 25 October 2019, which was inconsistent with his assertion that no work was needed.[36]Mr Davin did not take the opportunity to respond to these points in writing.[37]The amounts sought by the respondent excluded attendance at the two hearings. The legal costs were preparation time of 12.3 hours by the respondent’s solicitor at an hourly rate of £72, making a total of £885.60, and 0.49 hours by a legal assistance at £43 per hour making a total of £21.07. The total claimed in relation to legal costs was £1,617.67. No VAT was claimed because the lawyers are employed by Trafford Council.[38]In addition there was a claim for time spent by Environmental Health Officers, but as indicated above it did not seem to me that these fell within the scope of the costs rules.[39]I was satisfied this appeal was unreasonably pursued, for the reasons given by the respondent (which Mr Davin did not seek to rebut). The respondent has incurred costs as a consequence of that unreasonable appeal. Taking into account all the circumstances I was satisfied that it was appropriate to make a costs order in the sum of £1,617.67.Conclusion
[40]Two of the three costs applications succeeded and the appellant is ordered to pay to the respondent costs which in total amount to £2,916.67.