Guildford Construction (York) Ltd v Holgate [1996] UKEAT 1063_95_0503

EAT
Guildford Construction (York) Ltd v Holgate
[1996] UKEAT 1063_95_0503 · 1996-03-05

MR JUSTICE HOLLAND : This matter comes before this tribunal in the following circumstances.

Mr Raymond Holgate made a successful application to an Industrial Tribunal sitting at Leeds on 8th August 1995 contending that there was due to him certain monies pursuant to the Wages Act 1986 . The precise merits of the matter do not presently rise for our consideration, suffice it to say that it turned upon the interpretation of his contractual arrangements and certain documentation passing between the parties.He having been successful, the respondents to that application, his employers and the present appellants, entered a Notice of Appeal dated 25th September 1995. That appeal in its turn excited a response from Mr Raymond Holgate indicating an intention to resist the appeal.Shortly thereafter, a letter was written by solicitors acting for Mr Holgate dated 10th October 1995 and addressed to the solicitors for the present appellants. That letter read as follows:
"Thank you for your letter of 5 October. We note your comments and will take our clients instructions upon the same. However, we can comment that the appeal to the EAT has little or no prospect of success and carries a heavy potential costs risk for your client. It would appear that the appeal is being made purely as a tactical measure to be withdrawn later as part of a settlement."
That contention, on the part of Messrs Langleys was repeated again on 12th January 1996 by way of a letter of that date. In the course of the text there appears the following passage:
"With regard to the decision of the Industrial Tribunal, now subject to appeal, our client is not prepared to compromise. We consider your clients prospect of success at the appeal to be minimal. As we have previously stated your client seems to have made this appeal for two reasons (1) to avoid paying the Tribunal award for as long as possible and (2) to offer to discontinuance of the appeal when negotiating a settlement."
In the event and by way of a letter of 21st February 1996, the solicitors acting for the appellants intimated to this tribunal that their clients had decided to discontinue the appeal. That notification having been given, this tribunal received a letter from Messrs Langleys indicating that it wished to apply for costs, which application would be based upon written submissions only without attendance by their client. Those submissions have come before this tribunal in a letter dated 4th March 1996 and have elicited a response of the same date from solicitors acting for the appellants.Dealing with the case for a costs award, Messrs Langleys put the matter in this way:

"The submission is made on the following grounds:-

1) The Appellant has withdrawn the appeal without giving any reason or explanation.2) In any event we wrote to the Appellant's Solicitors on 10 October 1995 and 12 January 1996 pointing out that their clients prospects of success at appeal were minimal. As you will note from those letters it had been the Respondents position all along that the appeal lacked merit and was only made for two reasons(1) to avoid paying the tribunal award for as long as possible and(2) to offer discontinuance of the appeal when negotiating settlement of other matter in dispute between the parties.Time beat the Appellant in this instance, since the other matters in dispute between the parties remained unresolved at the time when the hearing of this appeal was fast approaching. As a result the Appellant has withdrawn the appeal and must take the consequences on costs of such unreasonable conduct."The reply from Messrs Guest Walker & Co reads, so far as material, as follows:
"(1) We were not aware that we had to give an explanation with regard to the withdrawal of the appeal. In fact, the reason is that business and personal problems are going to make it impossible for our clients to get to London on March 5th. We appreciate that an alternative date could have been sought. However, this would obviously have involved further time and expense and, on balance, our clients decided that this could not be justified in the light of the relatively small amount of money at stake. Our clients also felt that it was only fair on all concerned that this matter be resolved as soon as possible, bearing in mind that it has been pending for some time.
(2) We must make the point that we did give as much notice of the withdrawal of the appeal as we possibly could.(3) Messrs. Langleys have made it clear to us on the phone that their client was intending to conduct the appeal himself without legal representation. Further, we cannot believe that either they or their client have been involved in any significant amount of work with regard to the appeal. We do not feel that an order would be appropriate."The letter then goes on to complain about the way Messrs Langleys have put their position in the letters of 10th October 1995 and 12th January 1996. Messrs Guest Walker & Co conclude their submission by contending that each side should bear their own costs.Turning to the applicable rule. Rule 34 Employment Appeal Tribunal Rules 1993 provides:
"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."
We have, in the light of that rule, carefully considered these papers and, in particular, the exchange of correspondence. We are plainly impressed by the fact that at a very early stage Messrs Langleys expressed themselves forcefully about the motivation behind the appeal and predicted, in the event correctly, that it would not proceed to a hearing.Relying upon that opening salvo and, the subsequent exchange of correspondence, we have looked very carefully at this submission with respect to costs and have indeed taken heed of some underlying merit. All that said, and returning to the terms of Rule 34, we take the view that it is a very strong line for this tribunal to decide that any proceedings, that is, in this case this appeal, were:

"... unnecessary, improper or vexatious ..."

We do not think that we can make such a finding in this matter, not least when there has been no oral submissions before us relating to the underlying merits, nor indeed, to the underlying history. Thus, and by way of example only, we draw attention to the explanation for the withdrawal of the appeal given by Messrs Guest Walker & Co in the passage quoted. It plainly, on the basis of written submissions, does not lie within our power to reject that explanation and to find on the contrary that the truth was that the appeal was from the outset:

"... unnecessary, improper or vexatious ..."

Thus, although we have followed and carefully considered the underlying point made by Messrs Langleys from the outset we do not think that we can accede to their submission having regard to the terms of the rule having regard to the need to make a strong finding and to the plain difficulty of doing so on the material which is currently before us. In those circumstances, this application is rejected.