Lombard North Central Plc v Leach & Anor [1994] UKEAT 534_92_2811

EAT
Lombard North Central Plc v Leach & Anor
[1994] UKEAT 534_92_2811 · 1994-11-28

JUDGE HULL QC:

We have come to the conclusion in this case that we should make an award of costs. If we look at our present rules, costs as Mr Stilitz has told us are not in general awarded in this Tribunal.Our jurisdiction is a limited one, to try points of law and, of course, if an appeal is brought to us which is not on a point of law, then it is quite clear that the appeal cannot succeed and that the appeal is in the true view unnecessary, or unreasonable, whatever word one chooses to put on it and, of course, there are many other grounds on which something may be unnecessary or unreasonable. Under Rule 34(1):"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious [it is not suggested these proceedings were vexatious or that there has been unreasonable delay, that does not arise] or that there has been 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".In this case we had very substantial submissions made to us. I am not going to go all through it again. The main point in the case turned out, in our view, in effect to have been conceded by the Appellants themselves; and in any event, it was not clear to us that it was a true point of law. More important than those matters, as we said in the course of our judgment, Mr Wallington, who appeared before the Industrial Tribunal and before us, settled the Notice of Appeal in which the grounds of appeal extended over six pages and he expanded most of these in a skeleton argument of 22 pages.In addition, we were referred to his written submissions to the Industrial Tribunal containing 37 pages of exposition and argument and the written submissions of Mr Hogarth who appeared for the Applicants before the Industrial Tribunal and before us, which extended to 18 pages. Not all the submissions contained in these documents were pursued before us. And then, towards the end of our judgment we adverted to our misgivings. We said:
".... We think that many of the criticisms made by Mr Wallington were based on close analysis of particular sentences or phrases and subjected this decision to a scrutiny so critical that few if any decisions of an Industrial Tribunal would be likely to survive it; indeed some of the points taken seem to us to be positively inconsistent with a common sense approach to the decision. Thus (to take only one example) Mr Wallington suggested that the Tribunal might be saying that the conduct of Lombard in closing their Scarborough office, in seeking to persuade the Applicants to use their homes as offices, and in failing to provide up to date computer equipment, might well amount to repudiatory breaches. We do not think that these submissions can possibly be supported.
. ...We would all wish to express some disquiet about the weight of analysis and argument which the parties brought to bear on this relatively simple case. As we have observed above, there were nearly 80 pages of written submissions as Skeleton Arguments with our papers, intended to assist the Industrial Tribunal and ourselves. We think that the large number of points taken and the sheer length of the submissions may well be responsible for some of the infelicities in the written decision of the Tribunal itself. We note that in Duffy v Yeomans and Partners Ltd , a decision of the Court of Appeal reported in The Times on July 26, 1994, Lord Justice Balcombe observed there was a grave danger that the law of redundancy was becoming over-sophisticated, and that there was an attempt to lay down as rules of law matters which were no more than factors which an Industrial Tribunal should take into account in reaching its decision on whether the employer had acted reasonably in the circumstances of the particular case. Although the Court was there dealing with a quite different point on the law of redundancy, we respectfully agree with what was said by Lord Justice Balcombe and we deplore any tendency to apply formalistic tests to the decisions of Industrial Tribunals who are themselves endeavouring to apply the provisions of the Employment Protection (Consolidation) Act in a common-sense way to the events of everyday working life. The very numerous decisions of the Employment Appeal Tribunal (we understand that it was intended to cite more than 20 authorities to us in the present case) are for the most part intended to provide guidance to Industrial Tribunals in carrying out their task, not as laying down new and important principles of law. Such new and important principles are in general to be found in the statute and the decisions are usually summarised, perfectly adequately, in the text books. For our part, we should welcome rather less citation of authority and so, we think, would many Industrial Tribunals including the Industrial Tribunal in the present case".So that is what we said about that. It is to be observed that a great deal of the preparation of the case did not result in submissions being made to us and other submissions, in our view, seem really almost fanciful. The main submissions we felt obliged to reject as being virtually unarguable and certainly, in our view, not truly raising a point of law on the main point.It is said, with force, that the Respondents are equally to blame with the Appellants in thus length raising matters, but that appears to us to be a wrong submission. The primary burden, on an appeal, of keeping the matter within proper and arguable limits lies on the Appellant. If the Appellant raises a large number of points and cites a large number of authorities, then it is very difficult for the Respondent not to follow suit and to try to stop up every gap that might possibly be alleged in his case by himself referring to a lot of details which are quite unnecessary.We think that this appeal, in those respects that I have referred to, could indeed be described as unreasonable and that it was quite unnecessary to put all these arguments, to write these many pages of analysis and to try to dress up as points of law what are no more than the common sense and guidance of this Tribunal, or even the Court of Appeal, in cases which are different on their facts.Mr Stilitz very helpfully referred us to Walsall Metropolitan Borough Council v Sidhu [1980] ICR 519. That was a case in which the Commission for Racial Equality took up the case and did so on terms that the Applicant would not herself incur any expenses and therefore she did not.The CRE (if I may call them that) acting under their statutory powers, did incur expenses and did what they were entitled to do, which was to put her case forward; since they were not a party to the case costs could not be ordered. But that seems to us to be completely different from the ordinary case, with which all us are familiar, in which a party is entitled to be indemnified or partly indemnified or to receive a contribution to his costs either from a trade union or from an insurance company or, in proper cases, from the Legal Aid Fund. All those are cases where the party does, indeed, incur costs and the ability of that party to recover them from some other indemnifier or contributor is irrelevant on an application by that party for costs against another party.We think that this is plainly a case where these Respondents incurred costs. We are told that they received assistance from their trade union and that the trade union has an insurance policy under which the costs may be met or partly met, at any rate. We think that that is nothing to the point. The insurance company or the trade union, to the extent which they have contributed, if they did so on terms that they would be, in due course, repaid are of course entitled to be subrogated and if any benefit if received by the assured or by the member of the union, then of course to receive proper repayment out of it.So we ask ourselves the question, is it right in all the circumstances for us to make an order for the costs of the appeal? We think that it was an unreasonable appeal in the respects which we have identified. We think that there was a great deal of unnecessary reference to detail and citation of authority when short reference to a paragraph in a text book would have done perfectly well. We think that some of the submissions were not persisted in for the short reason that they were quite unnecessary and not maintainable. And we think, therefore, that we should make an order for costs.We think that the Appellants, having failed, should pay the costs of the Respondents, to be taxed if not agreed; and that is the order which we make.