Johnson & Ors v Carnaud Metal Box [1997] UKEAT 816_97_2507

EAT
Johnson & Ors v Carnaud Metal Box
[1997] UKEAT 816_97_2507 · 1997-07-25

JUDGE J HULL QC :

This is an appeal to us by Ms Christine Johnson and other ladies against certain decisions of an Industrial Tribunal or the Chairman of the Tribunal. The Respondents are Carnaud Metal Box, the well known company and the Appellants are several of a large number of ladies who were employed at their factory in Hull.There came a time when a number of the ladies, with the assistance of the trade union, represented as we understand throughout by Mr Allen who is here today, made complaints concerning equal pay. It was clear that it was intended that there should be, in effect, a class action by the ladies. We can see their representative (if you like) application by Ms Johnson at page 12. She complained shortly that the question of equal pay arose and she put it as shortly as could be:
"I am paid Grade E and people who are doing the same work as myself are on Grade D which is a higher rate of pay. I contend that the job I do is like work/equivalent to that in a job evaluation scheme and therefore I claim equal pay."
As I say, there were a large number of ladies doing that and I must tell the story to some extent by referring to the documents. That application was on 17 May 1996 and we understand that, at the same time, or almost the same time, a number of applications by the other ladies were made. Then on 5 June the employers put in their IT3, their Notice of Appearance, and that said, again in very short form:
"The Respondent denies any liability to the Applicant whether as alleged or at all. The Respondent will supply further details of its defence once the Applicant's claim is fully pleaded."
So it was merely, in effect, an outline application and there were a number of them. Then to look at how the matter developed it is convenient, I think, to refer to the correspondence. I am not going to tell the whole story, but the parts of it which seem particularly relevant to the appeal to us. The appeal is from a sitting of the Industrial Tribunal at Hull under the chairmanship of Mr Simpson, with his two industrial members on 1 May 1997. What led up to it are the matters I am going to refer to. It is convenient to go to the Respondent's bundle for most of the documents and starting at page 1 of that bundle, the Industrial Tribunal gave directions on 13 September 1996. The Chairman gave directions for comparators. He set out the basis on which the equal pay claim was advanced and gave directions for producing any job evaluation scheme which was, or had been, in existence, and witness statements were to be prepared and served and there were other directions.Then on 16 October, a month later, there were further directions. The Industrial Tribunal said, writing to both parties:
"1 The Tribunal has already given directions in relation to these cases [and referred back to its earlier order].
2. Four test cases will be selected by the applicants' representative who will identify them to the Tribunal and the respondent's solicitor."So that was the order, that there should four test cases and it is out of that order that some of the difficulties have arisen.Then, going on with the story, the four chosen were apparently the first four names on a schedule to the order. This is going forward, of course, they had not yet been chosen: Mrs Johnson, Mrs Davis, Mrs Yates and Mrs Hudson. There was then a letter from the Respondents' Solicitors complaining to the Industrial Tribunal on 6 January 1997:
"We refer to the above proceedings and to the directions hearing which took place on 14 October 1996 ... .
We note that we have still heard nothing from the Tribunal in connection with a hearing date [and saying that they had been advised that the Hull factory would close] ."The reply from the Tribunal dated 9 January 1996 to the Respondents:
"As the directions given on 14 October 1996 have not yet been complied with, the cases cannot be listed for hearing."
Then the Respondents' Solicitors replied, on 23 January 1997:
"It appears that the only outstanding direction given in relation to these claims on 14 October 1996 is that the Applicants' representative should identify four test cases to the Tribunal and the Respondent's solicitor."
This was in January, three months after the directions. The Industrial Tribunal's office wrote again on 31 January 1997 (page 10)and the Chairman directed the following reply:
"The onus is upon the applicants to prosecute their cases with due diligence and expedition. As there has been an apparent failure to do so, consideration must now be given to striking out the applications for want of prosecution. I propose to make such an order pursuant to Rule 13(2)(f) [which, of course, does make provision for just that]. Notice is given to the applicants requiring them to show cause why such an order should not be made. Any representations should be made within the next seven days."
So that was an emergency so far as the Applicants were concerned and then Mr Allen, on behalf of the trade union, wrote on 5 February 1997 (pages 11 and 12) and gave his excuses for the delay, no doubt excellent ones in some ways, but he said:
"I felt that it would be in the interest of the tribunal's time if I identified the 4 witnesses for the tribunal when a date had been set, so that those who were identified had a reasonable opportunity of attending on the stipulated date."
Here and throughout, Mr Allen seems to be confusing the question of witnesses with the question of the parties to a test case. Of course, each of these ladies was a separate party and was entitled to play such part as she thought right. She could withdraw from the proceedings. Each of them of course, and any of the other ladies, could be witnesses at any hearing. Mr Allen continued:
"I would therefore object to this case being struck out, I can give you 4 names with the reservation that if, due to them taking up new employment or due to holidays, they would be unavailable, and can be substituted by others who could attend. I hope this letter satisfies you ... "
The reply to that, not surprisingly perhaps, from the Industrial Tribunal on 7 February 1997, was:
"The applicants representative must identify those cases which are to be test cases in accordance with the direction given. He cannot do this on a provisional basis. The cases will now be listed in respect of the four named and no others."
So that was the rejection of the suggestion that they should be chosen on a provisional basis.On 25 February 1997, at page 15 of this bundle, notice was given of the hearing for 30 April and 1 and 2 May 1997 and the test cases were listed as: Ms Johnson, Mrs Davis, Mrs Yates and Mrs Hudson. Then the next principal date to mention is that on 28 March the factory closed, and then on 21 April, only 9 days before the hearing, we come to the letter at page 17 of this bundle:
"To the Tribunal from Mr Allen.

Dear Sir

As a result of unavailability of some of the applicants can I advise you that the representative witnesses for the above case will now be: ... "And he gave Ms Johnson's name and then the names of 3 other individuals and he referred to another matter, Block B (as they were called) another class of Applicant, who had nothing to do with this hearing, so far as we know; and he sent a copy, or said he would send a copy to the Respondents' representative. Here again, he seems to be saying (if one understands what Mr Allen means when he talks about witnesses) there will be 4 Applicants and only one of them will be one of the ladies already chosen. But what he was saying, in terms, was only referring to witnesses.Next, there is a letter from the union, again from Mr Allen and dealing with various matters and then there was a letter of 23 April 1997 dealing with the question of Mr Coupland:
"Thank you for your letter dated 21st April 1997 in reference to Mr Coupland. ..."
and making various observations about Mr Coupland and his position in the pay structure and then there was a reply to that letter dated 28 April 1997, the letter relating to Mr Coupland from the Industrial Tribunal, thanking Mr Allen for his letter. The Chairman directed the following reply:
"The issues that the applicant's representative raises can be referred to when the Tribunal sits on Wednesday [that is the issues relating to Mr Coupland on the natural reading of it]. However the only cases listed for hearing on Wednesday are the four test cases identified by Mr Allen namely; Ms C Johnson, Mrs M A Davis, Mrs P Yates, Mrs D Hudson."
The story at this point becomes a little more complicated. We are not told about these matters, but Mr Allen wished to call witnesses and wished to have witness orders for those witnesses. Apparently the Chairman had refused witness orders and Mr Allen thought it right to appeal to this Tribunal. and obtained a favourable result in this Tribunal and witness orders were granted, which meant that the first day of the proposed hearing was not practicable.Then on 29 April, at page 21, Mr Allen wrote again:
"I would like to lodge an appeal against the Chairman's decision to refuse to grant witness orders ...
The Chairman made his decision in a letter dated 25th April 1997.I would be obliged if you could send me the relevant application form with which to lodge the appeal.

I have sent a copy of this fax to the tribunal."

And on 29 April 1997, at page 22, Mr Allen wrote again referring to the proposed hearing:
"... I am in the process of appealing against your decision to refuse the granting of witness orders in respect of the named comparators. I enclose a copy of my fax to the EAT.
I would appreciate a speedy response to this request so that the respondents representatives can, if the postponement is granted, save him and his witnesses an unnecessary journey."There was a reply on the same day from the Industrial Tribunal. The Chairman said:
"Request for postponement refused. The case will proceed on 30 April 1997. Applicant's representative may, of course, renew his applications for Witness Orders and/or an adjournment at the hearing."
So it was in those circumstances that the matter came before the learned Chairman and his members. The hearing Mr Allen tells us, was at Hull, although it is listed as being at Leeds, on 1 May 1997. I had better refer to the decision.
"1 The hearing of the applications is adjourned to a date to be fixed.
2 The applicants are ordered to pay the respondent the costs thrown away by reason of the adjournment, such costs to be taxed ... .3 The applicants should pay to the Secretary of State the whole of any allowances paid by the Secretary of State to any person for the purposes of, or in connection with, his attendance at the Tribunal."It is those two orders for costs which are the first part of this appeal. How did the Tribunal come to make these orders? They set our their reasons in what follows. They start by saying:
"2 ... Notwithstanding the length of time between the giving of the directions [which of course had been the autumn before] and the hearing date, these directions had not been fully complied with.
3 The Tribunal had convened to hear four test cases chosen by the applicants' representative in accordance with the directions. There had been some delay in nominating the cases and it was only after the Tribunal had informed the applicants' representative that it was proposing to make an order pursuant to Rule 13(2)(f) that the names had been put forward. The four test cases had been listed by a notice of hearing dated 11 February 1997. In a letter accompanying the notice of hearing, the applicants' representative has been advised that the listing was in relation to the test cases chosen and no others. Despite this, by letter dated 21 April 1997 and received by the Tribunal on 24 April 1997, the applicants' representative had sought to substitute other applicants for three of the test cases.4 In view of the lateness of this action, the applicants' representative was advised that his request to change the identity of the applicants in the test cases would be considered as a preliminary point at the hearing. Mr Shrives [the Solicitor for the employers] objected to the request. He had prepared his case upon the basis of the named applicants and was not in a position to deal with the cases of the applicants which it was now proposed should be heard. He invited the Tribunal to proceed with the cases listed and if the applicants in some of them were not present, the Tribunal should determine these under Rule 9(3). Mr Allen submitted that the Tribunal should have power to substitute other applicants but could not point to any specific provision in the Rules to permit this. Mr Shrives drew the attention of the Tribunal to Rule 5(2) which required not less than 14 days notice of the hearing to be given unless the parties agreed to a shorter time and stated that the respondent was not prepared to agree to short notice."So to pause there, the Respondents' Solicitor was there with the Respondents' witnesses and anxious and willing to go on. The Solicitor was not prepared to have Mr Allen substitute fresh Applicants. Mr Allen has told us today that those Applicants would, in substance, have had an identical case to the four ladies originally named. So be it. The Respondent's Solicitor was fully entitled to a proper opportunity to consider whether that was so, to consider what evidence he should call in relation to those Applicants. The Tribunal said:
"5 Mr Allen then sought an adjournment to enable a formal notice of hearing to be given for the test cases he now wished to pursue. Mr Shrives objected to an adjournment. He had come prepared to deal with the cases listed. If the Tribunal was minded to grant an adjournment, he would wish to make an application for the costs thrown away pursuant to Rule 12(4). Mr Allen accepted that the question of costs may have to be considered but he felt that it was in the interests of justice that the adjournment should be granted.
6 The Tribunal having retired to consider the submissions made by the parties granted an adjournment.7 Mr Shrives sought an order that costs should be taxed under Rule 12(3)(c) if agreement could not be reached. Mr Allen submitted that any costs awarded should be of a nominal amount in view of the financial circumstances of the applicants, although he did not provide any specific information as to those circumstances."The Tribunal then went into the amount of quantum. What costs should be awarded? They considered the question of the Applicants all being represented, all 30 or 40 of the ladies, by the trade union. They considered a case in which it was said that that should not normally be a material factor, if it was the ordinary case of an isolated Applicant supported by his or her union, applying say for unfair dismissal, but it would be different they thought in the case of a substantial action, something like a class action, in which Applicants were chosen as representative of the others. And having considered this to be in that latter class, they said that costs should be awarded on County Court Scale 2, to be taxed if not agreed, both in respect of the costs thrown away by losing that day and in respect of the witness expenses thrown away. The sum, of course, would not be very large. It was not a case of having one Counsel or two Counsel, it was a case of a Solicitor. It was not a case of the whole costs of the action. Nothing like that. It was a case of the costs thrown away by that day. They thought it right to make an order for costs. Under Rule 12(4) there is no need for them to observe the usual restraint on the award of costs, namely that the behaviour of the party who is ordered to pay costs must be frivolous or vexatious, or unreasonable. They had an unfettered discretion to order costs.In those circumstances what was the proper order for costs to make? On the face of it, here was one party asking for an adjournment, who had certainly not complied promptly with the directions of the Tribunal and who now said, "I want an adjournment. I am not able to go on on the present basis". Here was the other party saying, "I want to go on. I am ready to go on. I am prepared to meet the case which has been made so far". Well, pausing at that point, the inevitable order in any court of justice would, in those circumstances, on the face of it be an order for the costs thrown away to be given to the party who was not in any way at fault, who was not asking for any indulgences.Mr Allen has addressed us to the effect that this order for costs was a penalty, it was a punishment, it was inflicted upon the Applicants. It seems to us that that is an entirely mistaken view. What was being done by the Tribunal was to say that the costs thrown away were to be the Respondents' and, of course, the Secretary of State's, in so far as he had paid for witnesses to be there. We have asked Mr Allen why was it that his four chosen Applicants were not there. He tells us that the answer is that two of them had jobs and were afraid of losing their jobs if they came to the Tribunal and one of them feared, and had feared for ten days, that she would have, as Mr Allen put it, a woman's problem if she came to the Tribunal. So only Ms Johnson remained.The fact is that these Applicants were in the position of plaintiffs. It was their case. They had expert assistance from the trade union for which, no doubt, they were duly grateful. It was the trade union representative, Mr Allen's job to have them there and he had left it far too late for the case to be adjourned without throwing away costs. He had come to the hearing hoping to go ahead and substitute other parties. That was, in the view of the Tribunal, reasonably objected to and the Tribunal made its order for costs.So those orders for costs are the first matters which are the subject of this appeal. Then we look at the other matter, which is also the subject of the appeal. Mr Allen appeals against the decision of the Chairman, in a letter dated 26 June, that the numbers of test cases from the pool of Applicants would not be increased. This is to be found at pages 4 and 4A of our bundle.On 18 June, after these unfortunate experiences, Mr Allen wrote to the Tribunal:
"I wrote to you on 28th May 1997 requesting that the list of test case witnesses in Group A be increased to cover the possibility of unavoidable absence at short notice of any of the witnesses, although I would only be utilising 4. You refused my request and I would ask that you re-consider your decision on the following grounds:
Female witnesses have far greater difficulty in attending tribunals, even though they have a direct involvement, as a result of not only their own illness but those of their children and often their husband. I would urge you to re-consider, and recognise, that female applicants do have problems not encountered by male applicants to a tribunal and as this is an equal pay [case] I feel it is more relevant to take an enlightened view of my request than would be normal in a non-equal pay claim.

I would be obliged if you could let me have your speedy response to my request."

One would say in parenthesis, all this is in a case in which the Applicants are asserting equality, as they are well entitled to do by statute. But here they are asserting they should be treated in a different way because they are women. One would say (in fairness to Mr Allen) that a great many ladies undoubtedly do put family first and their loved ones first and would be prepared to say, "I'll stay at home to look after my husband or child, rather than go to the Tribunal". So be it. It is not open to Tribunals to treat women plaintiffs, women applicants, in that sort of way, as a generally weaker class whom they have to indulge specially and it would be anomalous if they did. What the Chairman replied on 26 June was:
"Request refused. The number of cases to be treated as test cases was agreed by the parties when the directions were given. I can see no valid reasons why this direction should be varied. As in all cases before the Tribunal, the onus is upon the applicants and their representatives to ensure that they appear at the hearing."
Mr Allen told us that we should (so to speak) join the real world, look at realities and exercise our discretion to tell the Chairman to come into the real world too and indulge that sort of request. The very short answer to all these matters is this. These were all orders which were in the Industrial Tribunal's discretion. It is the responsibility of the Industrial Tribunal to make sure, so far as it is allowed to by the parties, that the case is tried as fairly as it can be, that all necessary directions for that purpose are given and complied with and to make any necessary orders ancillary to those directions.Here, dealing first with the order for costs, we have heard a great deal from Mr Allen about his difficulties. We do not doubt Mr Allen's sincerity and vigour in bringing his case. We heard not a word from him about the interests of the Respondents, who had been brought there and wished to go on and were being told that they could simply go away and come back another day. They had incurred costs. Who should pay those costs? That is a matter of discretion for the Industrial Tribunal Chairman. We are particularly reluctant to interfere with interlocutory orders, which of course these are, because it is the responsibility of the Industrial Tribunal and not our responsibility to see that the case is properly tried. If parties' cases are tried and they then say, "The result is unsatisfactory, unjust and unfair, the following things have gone wrong with it, the following are errors of law", they can come to us and we can see the whole picture. We are necessarily at a disadvantage when we look at the interlocutory stages of the case. In the nature of things this Industrial Tribunal and its Chairman will know far more about this case than we can do, having had a number of appointments and studied the papers.We can see nothing erroneous in principle or in law in these orders for costs. It is of course perfectly true, as with any other discretionary remedy, that the Tribunal might have made a different orders. We, ourselves, might have made different orders, though one must say that any other order might have been called, justly called, rather a surprising one. Nonetheless, they were in the discretion of the Industrial Tribunal.We cannot find in the technical matters raised by Mr Allen any errors of law. If a short answer is wanted to most of them, one only has to look at the contentions put forward by the Respondents here which deal with the technicalities, but looking at it broadly on the merits, which is what we wish to do, we cannot see any ground for criticising the Industrial Tribunal in the orders which it made. It is all very well to say that there are more important things than litigation, "There is my job", and so on; "I think that that day will be inconvenient from the point of view of women's problems", and so forth and so on.The Tribunal is bound to say to parties, "We have fixed a day and you must, unless prevented by something quite unforeseeable, be there. If it is sudden illness or if it is, for example, a train strike, or something of that sort, it may be impossible to attend and we (the Tribunal) may be obliged to treat it as an emergency. Otherwise you must be there". Here, three of the Applicants were not there. They were not ready to go on. Mr Allen was, no doubt, quite right to apply for an adjournment and the Tribunal had it in its discretion to say what should then be done. It is said by Mr Allen (and this is not part of his appeal) that he was misled into thinking all this could be dealt with at the hearing. All we can say is that the highest it could be put was that there was a remote possibility that, by consent, fresh parties could be put in and the case might, if the Respondents agreed, be dealt with on the new basis at the hearing. But to do that, of course, agreement would have to be obtained and one asks why, when it was quite clear that these were the four ladies who would have to attend, did Mr Allen not make quite sure that they could conveniently attend and if he found out, say a month before the hearing, that they could not, why did he not get in touch immediately, not just with the Tribunal but with the Respondents and say, "Can you help me? There is this difficulty which has arisen and I should like to substitute other Applicants in the test cases. Can you help me over that by agreeing to that? If so, we can make a joint application". That could have been done. Earlier notice could have been given but it was not.So we think, in the light of all that Mr Allen has said to us and all the documents in the case (and there are very many documents, most of which are not directly relevant) but having looked at it as fairly as we can, we are quite unable to say that there is any error in the exercise of discretion. There is no error of law and we therefore cannot interfere with that exercise of discretion.With regard to the refusal of the Chairman to add parties; again, that is a matter of discretion for him and very peculiarly in the Chairman's discretion. This Chairman has got to deal with the test cases. It is his responsibility with his members to say how the cases are to be tried. Mr Allen says, "Well, I volunteered this, does that mean that it is written in stone, that it can never be altered?". The answer, of course, is not. If Mr Allen had been uncooperative from the start (and I am not suggesting for one moment that he might have been, but if he had been) and said, "I am not going to put up names for a test case", the Chairman and the members would have been perfectly entitled or, indeed, the Chairman by himself to say, "Then I am going to go through the papers and I am going to select representative parties and I am going to give directions to make sure that the necessary evidence is given in relation to those parties". The Chairman did not do that because Mr Allen had co-operated. Then Mr Allen, seeing the difficulties which had arisen, made this request. Inevitably, if parties were to be added, there would be extra expense, perhaps extra delay. The order had been made a long time before and the four ladies had been nominated.The Chairman was again acting well within his discretion, it seems to us, in saying that "The order made, by consent, should stand". Orders made by consent are not to be altered without good reason shown and one must say, and this is something for which Mr Allen is to be criticised, that a large number of his letters to this Tribunal were in a very regrettable tone. He was, in effect, insisting on rights when he should have been asking for the discretion of the Tribunal and from time to time he adopted a hectoring and, indeed, on one occasion at least, offensive tone to the Chairman, which cannot have carried his case forward any further. The Tribunal was entitled to be treated with proper respect and Mr Allen chose directly to call into question the good faith of the Chairman. That had nothing to do with the Chairman's decision. It is quite clear that the Chairman and his members exercised their discretion as they should.So in all those circumstances, although we understand what is being said to us by Mr Allen, we are not able to interfere. We think the proper course for the parties, and Mr Allen's clients in particular, is to get on with this case. That is the idea of all these directions; that the case should be progressed as quickly and as justly as can be.This is, as we understand it, the second appeal to this Tribunal arising out of this relatively straightforward case, as it appears to be. If it should emerge, after the case has been heard and after decisions have been reached, that there is any criticism of any stage of the proceedings including the hearing itself and the decision then, of course, either party if they say there has been an error of law has its rights. But we hope this will be the last of the interlocutory appeals and that the parties will now concentrate on preparing the case, and getting the case to trial, so that it can be looked into and a just adjudication can be made.So for these reasons we feel obliged to dismiss these appeals. That is the judgment of us all.