Uzoma v London Borough Of Tower Hamlets [1992] UKEAT 619_91_1410

EAT
Uzoma v London Borough Of Tower Hamlets
[1992] UKEAT 619_91_1410 · 1992-10-14
MR JUSTICE KNOX: This is an appeal by Mr Uzoma against a decision of the Industrial Tribunal taken at a hearing on the 16th September 1991, the written decision being sent to the parties on the 19th September 1991, that Mr Uzoma pay £200 by way of costs pursuant to the discretion conferred on the Industrial Tribunal under Rule 11(2) of the rules that govern industrial tribunals' procedure. That Rule reads:
"Where the tribunal has on the application of a party to the proceedings postponed the day or time fixed for or adjourned the hearing, the tribunal may make orders against or, as the case may require, in favour of that party as at paragraph (1)(a) and (b) of this Rule as respects any costs or expenses incurred or any allowances paid as a result of the postponement or adjournment."
and the references to (a) and (b) of the previous order are reference to one party paying to the other party, either a specified sum, or a sum taxed if not agreed between the parties, in respect of costs or expenses.The background to the matter was that this was an application which was made by Mr Uzoma which had gone through a variety of interlocutory stages and there was an Interlocutory Order made at a hearing which was confirmed by a letter. The hearing was on the 16th April 1991, the letter was dated 22nd April 1991 and it was addressed, as one would expect, both to Mr Uzoma and to the acting head of Legal Services for the Respondent, the London Borough of Tower Hamlets.The relevant paragraphs in that Interlocutory Order were two. The first one was numbered 7 it reads:
" Discovery: Each party will give voluntary discovery of the documents on which it is intended to rely. The contents of the bundles to be provided for the use of the Tribunal should be agreed by the parties."
The second relevant paragraph is numbered 9, it reads:
"If any queries arise on this letter or any further directions are required, application should be made as soon as possible."
and indeed there were other matters that arose at an interlocutory stage, and as Mr Uzoma has pointed out to us (he appeared both in person both in front of the Industrial Tribunal on the occasion from which the appeal is brought, and before us) there were occasions where the Regional Office of Industrial Tribunals wrote to the London Borough of Tower Hamlets asking why they had not complied with various features of the Interlocutory Order which it is not necessary to read.So far as the matter of discovery was concerned, the Industrial Tribunal, on the 16th September, was faced with each side having its or his own bundle of documents rather than the normal state of affairs which the Interlocutory Order of the 16th April would have led one to expect to occur, namely that there would be an agreed bundle, subject of course to any dispute as to admissibility or as to the genuiness of any particular document in the bundle. But that was not what had happened. What had happened was, as recorded by the Industrial Tribunal in its decision, that Tower Hamlets wrote to Mr Uzoma sending him their proposed bundle of documents and they said:
"I hope that the bundle finally submitted to the Tribunal will be one agreed between you and my Authority. To facilitate such agreement, would you please notify my officer of any alterations you may have as soon as possible."
Mr Uzoma wrote a letter on 31st August in which he declined that invitation and said:
"I think that it would be better for each party to produce their own set of documents and for the Tribunal to decide on the admissibility of any document. Consequently, I have to reject your offer to include the documents I intend to refer to at the hearing in your `bundle'."
One of the submissions that Mr Uzoma has made to us today is that he did not trust the London Borough of Tower Hamlets to copy exactly and faithfully the documents in the bundle, if it was to be agreed and that that was one of the reasons why he did not agree to what the Borough was proposing. We would interpose, that if a party takes that attitude, he takes it at his own risk and if it involves unnecessary expenditure of costs that is the risk that he runs in adopting that attitude. However, that was Mr Uzoma's attitude at that stage. Other points that he made in connection with it, namely that there were issues about the admissibility or propriety of inclusion of documents in the bundle that Tower Hamlets wanted are obviously neither here nor there to any question about the documents that he proposed to rely upon. Similarly any questions about the illegibility of some of the documents in the Tower Hamlets bundle, an illegibility that does, on what we have seen, appear to exist, is again, neither here nor there in relation to the bundle that he, Mr Uzoma, wished to include in so far as it went beyond what Tower Hamlets had in their bundle.What subsequently occurred, as again recorded by the Industrial Tribunal, was that he was asked to reconsider his refusal; he was asked to submit a separate bundle by the 11th September, the hearing being fixed for the 16th, and in that letter which gave him his last chance to submit his bundle before the hearing, he was warned that:
"Should you present my Authority with your documents on the 16th September, [the day of the hearing] it is possible that an application for an adjournment will be made in order to consider the documentation. Undoubtedly, such a course of events will not be conducive to the completion of this matter within the time allocated."
Mr Uzoma tells us that he did not know that there was a sanction behind non-compliance with that invitation because, in common with the generality of man and womankind he did not know the terms of Rule 11(2) of the Industrial Tribunal Rules of Procedure. But that is not a defence to any sanction, that one does not know the penalty for the particular course of conduct that has been indulged in. The result was that when the parties appeared 2 1 / 2 hours late, Mr Uzoma tells us, because there was a mix up with regard to the convening of the Tribunal, it was found that Mr Uzoma had a bundle which he now proposed to put in, and, in the words of the Industrial Tribunal:
"Mr Uzoma's bundle contained documents which Mrs Chudleigh [Counsel for Tower Hamlets] had not seen before and upon which it would be necessary to seek instructions and possibly call additional witnesses."
Mr Uzoma submitted to us that the witnesses were, in fact, all there and could have been consulted. That may or may not be so, but the fact of the matter is, that if one party is confronted at the day of the hearing with new documentary evidence upon which it has not had an opportunity of taking instructions, and it is a matter which should have been discovered, the normal sanction is for there to be an adjournment and the costs incurred by the adjournment are borne by the party that causes it, if it is done unnecessarily. So that the presence of the witnesses is not an answer to the proposition that there was an unnecessary delay in revealing what it was that Mr Uzoma wanted in his bundle. There was an application for a postponement. Mr Uzoma did not oppose it, again he tells us that he did not oppose it, not because he did not appreciate that there was going to be application for costs against him, there is no doubt he did not, but he agreed it because he was already satisfied that the three days that were currently being set aside for the hearing were going to be inadequate and it would be better for five days to be set aside which would have involved an adjournment in any event. That goes to Mr Uzoma's motivation for agreeing to the postponement, and we approach this question on the basis that it may well be that Mr Uzoma would not have agreed to the adjournment had he known what was coming. However, that is not an answer to the decision that the Industrial Tribunal arrived at because there is no doubt at all that had Mr Uzoma resisted an adjournment because the documents that he included in his bundle were matters that Mrs Chudleigh, the Counsel for Tower Hamlets, wanted to take instructions on, that resistance would have failed. So that that point again does not seem to us to advance matters significantly.There was then an application for costs, under the Rule that I have read and do not repeat, and the Industrial Tribunal decision sets the basis of the application, the passage that I read from paragraph 7 of the letter setting out what happened at the interlocutory hearing on the 16th April 1991, and the repeated invitations to Mr Uzoma to agree a bundle. In those circumstances it has to be said that we are not surprised to find the Industrial Tribunal saying:
"Mr Uzoma was at fault in failing to co-operate in the provision of an agreed bundle and it was the late production of his documents which caused the Respondents to apply for the postponement."
and in those circumstances they exercised their discretion by ordering him to pay the sum of £200.There are other matters which Mr Uzoma raised, he said that he had been in touch with the Tribunal Clerk to find out what his obligations were and that the Tribunal Clerk, informed Mr Uzoma that he had to comply with what was on the notice of an Industrial Tribunal hearing. That notice not only includes the statement:

"Please try to co-operate with each other on this."

i.e. preparing a list of papers to be used by each side in support of their case. But also it points out what is fairly obvious:
"It is very important that both parties bring to the hearing any papers that may be needed."
and then it gives examples of the sort of papers that are usually needed and it says:
"It will help if you bring to the hearing:
- your own set of papers;- one copy for the use of all witnesses (not a copy for each);- a copy for the other party (unless you have already sent them);

- three copies for the members of the Tribunal."

As a justification for not complying with the Interlocutory Order and as a justification for declining, on grounds of suspicion, the repeated invitations that were advanced to him by the Borough of Tower Hamlets, those paragraphs in that Notice of Appearance seem to us, very flimsy ground indeed. There was nothing there to suggest that the Interlocutory Order was in any way being rescinded. In any event for us to interfere with an exercise by an Industrial Tribunal of a discretion which could hardly be put in wider terms, it is well settled that there has to be shown to have been an error of law committed by the Industrial Tribunal, and the fact that we might have fixed on a smaller, or it must be said, a larger figure, for the amount that Mr Uzoma should pay in costs is neither here nor there. We are quite unable to detect any error of law on the part of the Industrial Tribunal and we dismiss this appeal.