Ahmed v Kentucky Fried Chicken (GB) Ltd [1993] UKEAT 197_93_0607

EAT

Ahmed v Kentucky Fried Chicken (GB) Ltd

[1993] UKEAT 197_93_0607 · 1993-07-06

JUDGE HULL QC:

In this case Mr Ahmed, the Appellant, was employed by Kentucky Fried Chicken and unhappily he has been very ill and during the period of approximately four years of his employment which ended in 1992, he was absent from work for nearly half the period. His employers were concerned about it and in the course of a call at his home, after he had been absent for this very long period, he was dismissed. He complained to the Industrial Tribunal and the preliminary point arose whether his complaint was out of time.

It was alleged on his part that there were reasonable grounds for it being out of time: that it was not reasonably practicable for him to present his complaint within time and that it was presented within a reasonable time after the three months allowed by Section 67(2) of the Act had expired.

In his application to the Industrial Tribunal, Mr Ahmed who was then assisted by lawyers, said that his employment had indeed on 9 April 1992. There was no issue about that and the Tribunal, having heard evidence, concluded that indeed his dismissal was on 9 April 1992. However, in his notice of appeal, the grounds that were settled by his solicitor, or perhaps by Counsel and signed by solicitors, said:

"6. The grounds upon which this Appeal is brought are that the Industrial Tribunal erred in law in that: (a) (i) It wrongly decided that the Application was not presented in time by holding that the effective date of termination was 9th April 1992 and not the date when the Appellant was informed that his internal appeal against dismissal was unsuccessful namely 8th June 1992."

That, of course, was raising for the first time a new case which had not been argued and then were averments which appeared to us merely to raise points of fact. It was said:

" (ii) ......... it wrongly decided that it was reasonably practical for the Appellant to have presented the application in time."

And it was also said:

" (iii) ....... it should have decided that it was presented within a reasonable period after the expiry of the time limit."

Those were eminently points of fact for the Tribunal which was hearing the case.

The Notice of Appeal goes on to say:

"(b) On the facts found by it it failed to give any or adequate weight to the Appellant's evidence of illness and housing problems."

That is again criticising what are findings of fact and raising, on the face of it, no point of law at all and most certainly not saying that the Industrial Tribunal acted perversely and reached a conclusion of fact which no Tribunal, directing itself properly on the law, could have reached.

However, that was the appeal. The Respondents to the appeal, the employers represented by solicitors, have taken us through what has occurred recently and we have been shown a bundle by Mr Linden, counsel for the Respondents. In that bundle of documents we see that the solicitors who were acting for Mr Ahmed were contacted on 30 June, making a very reasonable request as to whether Counsel for the Appellant was proposing to lodge a skeleton argument and making the point that the appeal appeared to them to be vexatious. There were then telephone conversations and for the first time on 1 July, the Respondents learned that the Appellant was legally aided. An emergency legal aid certificate had been filed to cover the filing of the notice of appeal and obtaining Counsel's opinion.

That was a serious matter because the Appellant, through his solicitors, was under a duty to inform the Respondents of the issue of the Legal Aid Certificate and here they were learning of it for the first time. That is always regarded by Courts of Law as being a seriously prejudicial omission in that the solicitors for the Respondents are being deprived of their opportunity to advise their clients of a most important matter, namely, the costs consequences which follow from the Appellant being legally aided. A copy of the notice was only sent on that day, 1 July, the Appellant's solicitors being so prompted.

Also on 1 July the solicitors telephoned again to tell the Respondents' solicitors that the Legal Aid Board was not prepared to extend the certificate to cover the Appellant's representation and so there was no legal aid. In those circumstances, on 1 July, a letter was sent by the Respondents' solicitors to Mr Ahmed in person to the address which they had been given for him. That was sent by courier and after reciting the above matters they say:

"........... your appeal is unfounded in law and cannot succeed. We hereby put you on notice that, unless we hear from you by 1 p.m. tomorrow that you will withdraw your appeal, it is our intention to apply to the EAT for an award of costs to be made against you."

There was difficulty in the courier's delivering that because the address was that of a lock-up garage but in due course Mr Ahmed telephoned the solicitors on 5 July to say that he had received the letter. He wanted to continue with the hearing; he would be contacting his solicitors right away but he would be attending the hearing whether or not they were representing him. That was the situation only yesterday.

Then the Respondents' solicitors rang and were told that Mr Ahmed had "popped out" for a moment and at 2.35 p.m. yesterday, Mr Ahmed telephoned to say that he was not coming to the hearing as he was not feeling well due to his back. It was pointed out that that was not what had been said earlier and then Mr Ahmed said that it was not he that had telephoned earlier. He said that it was a friend telephoning on his behalf and that he had been standing next to him when he phoned - so he presumably knew all about what had been said. The solicitors pointed out to Mr Ahmed that costs would be incurred and that costs would be applied for, but Mr Ahmed just put the phone down. Again another attendance note read:

"Attending a gentleman who said that he was a relative of Mr. Ahmed's when he telephoned at 3.20 p.m. to say that Mr Ahmed now wanted to drop his case ........... and would not be attending."

The solicitors were spoken to by Mr Ahmed's former solicitors who said that they had been instructed to drop the appeal. However, apparently it has not been abandoned and this Appeal Tribunal has not been notified. Another letter was sent to Mr Ahmed saying that the Respondents would be applying for costs of the appeal.

Mr Linden makes the following points. He says that it is evident that this appeal would be bound to fail for the reasons that I have already referred to: the date of dismissal was not argued and, says Mr Linden, justly in our view, failure was inevitable at this hearing. He says that quite apart from those matters there is unreasonable conduct here. The appeal was bound to fail and that was eventually recognised by the Appellant himself and by his solicitors. The Appellant, having said yesterday that he would attend today, then saying that he would not attend today having complained about his back, which apparently is a chronic condition from which he has suffered for a long time, is not here today.

It seems to us that in those circumstances it can justly be said that these proceedings were unnecessary, improper or vexatious, in the legal sense of that word, and there has been unreasonable conduct in bringing and conducting them. In those circumstances we have a discretion under EAT Rule 27 to make an order for costs. We do not know whether Mr Ahmed is, in fact, still legally aided in the technical sense, that is whether his certificate has been revoked or not. In respect of the period whilst he was legally aided, which may extend to today, he is protected by Statute from having any order for costs made in a sum larger than is reasonable and we know that he has been an invalid. Whether he has any means we do not know and we therefore cannot make an effective order for costs against him.

We are content to make the order for costs which is often made in the Court of Appeal and which it seems to us that we should follow. There will be an order for costs against the Appellant but that order is not to be enforced until further application has been made to this Appeal Tribunal for leave to do so, when we will hear any evidence of the Appellant's means. Until such evidence has been adduced before us the order for costs is not to be enforced.

The appeal is dismissed.