Somjee v North West Regional Health Authority & Anor [1997] UKEAT 87_90_1804

EAT
Somjee v North West Regional Health Authority & Anor
[1997] UKEAT 87_90_1804 · 1996-10-25

LORD JUSTICE MUMMERY :

This is the hearing of an application for costs. The application is made by the North West Regional Health Authority, the respondent to four unsuccessful appeals brought from the Industrial Tribunal to this tribunal by Miss Somjee. The decisions in all four appeals were handed down at the same time on 25th October 1996.By letter dated 28th November 1996 the solicitors for the Authority wrote to the Appeal Tribunal stating that they wished to make application for costs incurred in respect of those appeals to be paid by Miss Somjee. They stated that the grounds for seeking for costs were that the appeals were unnecessary, improper and/or vexatious and that her conduct was unreasonable in the bringing and conduct of the appeals.The language of the letter of application reflects the Rule under which this court may exercise discretion to order the payment of costs or expenses incurred in proceedings before the Appeal Tribunal. Rule 34 of the Employment Appeal Tribunal Rules 1993 states:
"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.
(2) Where an order is made under paragraph (1) of this rule, the Appeal Tribunal may assess the sum to be paid or may direct that it be assessed by the taxing officer, from whose decision an appeal shall lie to a judge."Miss Somjee wrote a letter on 2nd January 1997 stating in outline the grounds on which she resisted the application and adding at the end of that letter at paragraph 12:
"12. This application for costs is itself vexatious, frivolous, unreasonable, misplaced and misconceived; and should be dismissed. If the EAT is in any doubt then it should go to a full hearing, and in the event of dismissal, the respondents should pay me costs for unnecessarily wasting everyone's time on this."
A direction was given after the matter was referred to me as the judge who had presided over the hearing of the four appeals. I gave a direction on 24th January 1997 that there should be an oral hearing with the same two lay members, Mrs Sunderland and Mr Sanderson, who had heard the appeals, that a date should be fixed for the hearing; and that the parties were to exchange and lodge with the Employment Appeal Tribunal seven days prior to the hearing skeleton arguments on the costs issue.Before we deal with the arguments on costs, another matter should be mentioned. There was further correspondence between Miss Somjee and the solicitors for the Health Authority. I refer to a letter written on 17th March 1997 in which Miss Somjee asked for further and better particulars of her application; the grounds intended to be relied on; and an explanation of what was meant by her unreasonable conduct in relation to the appeals. A further letter was sent chasing up the matter on 28th March. A letter of 11th April 1997 made points relevant to the appeal hearing today.The Health Authority's solicitors set out their position to Miss Somjee in a letter of 7th April 1997. It referred to the imminent service of a skeleton argument, and, in the light of that, they did not consider it appropriate to provide further details at that stage.Unfortunately, matters have not proceeded smoothly in relation to the preparation for the hearing of this appeal.It is accepted by Mr Benson, who appears for the Health Authority, that the direction for the lodging and exchange of skeleton arguments was not complied with. The tribunal received the skeleton argument on 15th April 1997, Wednesday of this week. We have been told by Miss Somjee that she did not receive the skeleton argument until Wednesday. It had been initially delivered to the wrong address. Mr Benson accepts that the skeleton argument was not sent until Monday of this week. He offers his apologies for that lateness. The reason for non-compliance with the direction was his own problem in preparing the skeleton argument in time. These matters have obviously given cause for complaint on Miss Somjee's part. As an unrepresented person she does not have the advantages of a Health Authority represented by solicitors and Counsel.In addition, there have been unforeseen problems today. The matter was initially fixed for 11.30 a.m.. The hearing could not start then, because, due to circumstances quite beyond anybody's control, there were serious disruptions in travel arrangements from the Lancashire and Midlands area, both by rail and road. Miss Somjee considerately telephoned the tribunal this morning and informed the office of the problems. She was informed that the matter could be adjourned if that was convenient to her. She made it clear to the office that she wished to attend, if she arrived in London in time. The hearing was put back to 2.00 p.m.. By then Miss Somjee had arrived to present her case. She supplied, on her arrival, copies of a skeleton argument to the members of the tribunal and to Mr Benson.The hearing has taken all the afternoon. We are grateful to Mr Benson and Miss Somjee for the detailed arguments on a matter normally dealt with in minutes rather than hours. This case has a long history. We have exhaustively examined all the points.It is not necessary to examine in detail every single point made on each side. The important points are these:(1) the Rule confers a discretion on the tribunal which must be exercised by regard to all the relevant factors.(2) It is a restricted discretion, because the power to award costs can only be exercised if it appears to the tribunal that the appeal was unnecessary, improper or vexatious, or that there has been unreasonable delay or other unreasonable conduct.(3) Despite some of the points in Mr Benson's argument, we are of the view that it is only relevant to take into account the proceedings in the Appeal Tribunal. It is not necessary to repeat the account in the handed down judgments on these appeals of the long history of the matter in the Industrial Tribunal. What happened in the Industrial Tribunal is a matter for application for costs to that tribunal, not to this tribunal.(4) It is important to note that we can, if we think it appropriate, make an order for payment of only part of the costs.(5) The tribunal has power to assess the sum which can be paid. If it is given the appropriate figures, that is a proper course to pursue since it saves further time and money involved in assessment by the Taxing Officer.Against the background of those general comments then we look at the individual cases .Two of the appeals were dealt with together. They both arose out of complaints of race discrimination and victimisation. The appeals are EAT/87/90 and EAT/88/90. The appeal in EAT/87/90 was against the Industrial Tribunal's dismissal of complaints of race discrimination and victimisation. The appeal in EAT/88/90 was against the decision of the Industrial Tribunal on a review of the earlier decision, in which they confirmed their earlier decision. Both appeals were heard on 6th and 7th November 1995. They had been preceded some years earlier by a preliminary hearing on 17th July 1991. At the preliminary hearing, presided over by Wood J, the then president of this tribunal, directions were given for the production of Chairman's notes, leave was given to amend the Notice of Appeal, and the matter was directed to go forward to a full hearing, which was estimated to last a number of days. For reasons explained in the decision on those appeals, there was an unfortunate delay in the appeals being brought on. When they came on the 6th and 7th November 1995, Miss Somjee was represented by solicitors and leading Counsel. Her solicitors were not the same solicitors who had been acting for her at the time of the preliminary hearing. They were a new firm to which Mr Quinn of the earlier firm had moved (Quinn Melville). The Counsel retained to argue the case on the appeal was Mr King QC.The case was argued on the perversity ground. It was rejected.On the application for costs, the main points made by Mr Benson were these. First, the appeals were dismissed; and secondly, there had been a long delay in prosecuting the appeal which was due to Miss Somjee's failure to comply with the direction given for amendment of the Notice of Appeal; thirdly, when it came to the hearing many of the grounds in the original Notice of Appeal were not pursued. It came down to the question of perversity. That came down to questions of credibility. It was established by a long line of authorities that it is extremely difficult to satisfy the perversity test. He mentioned that Miss Somjee had also made allegations on the appeal about false evidence, in relation to documentation and fabricated documents, which were unsubstantiated. In these circumstances, the case fell within Rule 34.At the end of Mr Benson's arguments, we indicated, after withdrawing for a short time, that we did not wish to hear submissions from Miss Somjee on those two appeals. We were not satisfied by Mr Benson's argument that he had made out a case that Miss Somjee should pay any of the costs of those two appeals.The reasons for our conclusion against Mr Benson are two-fold. First, the preliminary hearing point. The fact that a case survives a preliminary hearing and is directed to go to a full hearing, does not deprive this tribunal of jurisdiction, in an appropriate case, to make an order for costs. Every case involving a discretion turns on its particular facts. We are satisfied that, although we have jurisdiction to order costs under Rule 34, the discretion should not be exercised to make an order for costs. The record of the preliminary hearing shows that the tribunal considered that there was a case worth setting a number of days aside to hear; that a case had been made out for producing 80 pages of Chairman's notes; and that the amendment of the Notice of Appeal was a necessary element to preparation for the full hearing. The Employment Appeal Tribunal, as then constituted, took the view that there was an arguable case. It would not be appropriate to exercise the discretion to order Miss Somjee to pay the costs on the basis that it was an unnecessary, improper, vexatious or unreasonable appeal.The second reason for refusing to make an order for costs is that it appears from the documentation now available that, at the time of the preliminary hearing, Miss Somjee had a Legal Aid Certificate. The copy in the file says that it was to cover an appeal to the Employment Appeal Tribunal against a decision of the Industrial Tribunal sitting at Liverpool on 20th November 1989. Further correspondence shows that the certificate was still in force in August and September 1995, when it was amended to show that the solicitor having conduct of the case was Mr Quinn of Quinn Melville, the new firm. We have been told by Mr Benson that the Legal Aid Certificate was ultimately discharged on 27th August 1996, after the hearing of all these appeals. We should also mention, though we have not seen all the relevant documents, that according to information available to Mr Benson, Miss Somjee actually paid out of her own pocket for the solicitors and Counsel who represented her on the hearing of the appeal on 6th and 7th November 1995. That may have repercussions for the enforceability of any order for costs in relation to the two other appeals for this reason: if the Legal Aid Certificate was in force at the time of the hearing of the appeal of 6th and 7th November, and if it is the fact that Miss Somjee paid solicitors and Counsel covered by that certificate, then, if the Legal Aid Fund pays those solicitors and Counsel, it will be their duty to repay to Miss Somjee what she had paid to them, subject to any possible claim that the Legal Aid Fund may have to a contribution by Miss Somjee under Legal Aid Certificate. If money is reimbursed to Miss Somjee, then that money may then be available to satisfy, in whole or in part, any order for costs against her on the other two appeals.On those two appeals, we do not make an order for costs. Having regard to the preliminary hearing and to the Legal Aid position, it is not appropriate to exercise the discretion under Rule 34, which is confined to cases where the appeal has been unnecessary, improper, vexatious or unreasonable.We therefore did not trouble Miss Somjee to address us on those two appeals.On the other two appeals, we have reached a different conclusion. The first appeal is EAT/1366/95. Legal Aid was not granted in that case. Miss Somjee did not have solicitors or Counsel. She conducted the appeal in person. Her complaint to the Industrial Tribunal had been race discrimination/victimisation in relation to the termination of her employment at the Walton Hospital. The appeal was dismissed. The main ground of the appeal was an attack on the credibility of evidence, and an attack on the impartiality of the Industrial Tribunal and the way in which the Industrial Tribunal had conducted the case. A warning had been issued to Miss Somjee, first by the respondent Health Authority, in paragraph 10 of their skeleton argument, as to a possible application for costs against her; and secondly, by this tribunal, (which Miss Somjee has called "a threat") as to the possible costs implications of pursuing criticisms of the conduct of the Industrial Tribunal without evidence.The second appeal, EAT/199/96, was against the refusal of the Regional Chairman to transfer out of his area Miss Somjee's complaint of unfair dismissal. That has yet to be heard. The handed down decisions in the appeals explain the outstanding complaint, and comment that it is unfortunate that this matter was not dealt with at the same time as the other cases. In that case the appeal, which Miss Somjee conducted in person, was dismissed. It was an appeal against the exercise of a discretion. She made allegations of bias and misconduct against the tribunal, which this tribunal found were not substantiated. The appeal was dismissed because there was no error of law in the Industrial Tribunal's decision.In these cases Miss Somjee has made a number of points in her skeleton argument and in her oral submissions. Her points can be summarised as follows: First, she says that EAT/1366/95 had to be heard because that was a direction given by this tribunal. When the first two cases were heard, EAT/87/90 and EAT/88/90 on 6th and 7th November 1995, a direction was given at the end of the hearing that the decision in them should be postponed until the hearing of a case pending in the Industrial Tribunal. This tribunal considered that it was almost certain to give rise to an appeal if Miss Somjee lost that case. The direction was that the decision would be given on the two first appeals after it had heard the appeal against the decision in the pending case (and any other case). So, Miss Somjee says, it cannot be called unreasonable of her to have pursued the appeal in EAT/1366/95, when the decision in the two earlier cases had been postponed pending her appeal.Secondly, she says that the Employment Appeal Tribunal did not set down the appeal in EAT/1366/95 for a preliminary hearing. If they had done so, it would have been decided at that stage whether she had an arguable case. To call her appeal unreasonable when it came on for a full hearing and was dismissed, was an afterthought for the purposes of claiming costs.Thirdly, she submitted that there had been before the Industrial Tribunal a pre-hearing assessment of that case. It was not found to be scandalous, vexatious or unreasonable.Fourthy, she contended that it was necessary for her to pursue that case on appeal to this tribunal, because of the points which she is taking under European Community law, the European Convention of Human Rights. Those points are mentioned in the judgment. She argues that she has to pursue the appeal in order to progress these cases to the Courts in Luxembourg and Strasbourg. She is right to this extent; normally the available remedies within a member country of the European Convention should be exhausted before a case is referred to those courts. So, she says, that there was nothing unreasonable in coming to this court on her journey to the European courts after the domestic courts had been exhausted.Fifthly, she complains that there has been unreasonable on the part of the Health Authority in their handling of this litigation. She complained in particular about the failure to comply with the directions for the service of skeleton arguments and the disadvantage that it puts her as an unrepresented person under.Sixthly, she complains about the time which it took for this tribunal to hand down its judgements. In particular, she says, after the hearing in June 1996, she had to wait until 25th October 1996 before she received the four judgments. That is a matter of regret. I have explained to Miss Somjee the fact that there are many other cases in which reserved judgments had to be written, and that five months was not spent on writing her decision. There is a queue. The litigants in this tribunal, as in other courts, have to wait their turn for their decisions, even if this does mean that there are delays.Miss Somjee's point on this was that, if it had been necessary to reserve the decision and take the time it did to produce it, there must have been something in her case. It could not be called one was unnecessary, improper, vexatious or unreasonable.I should mention that mixed in with these main points are many other points which Miss Somjee has taken. She has made it clear more than once that the Health Authority is not without fault in these matters. She criticises what she sees as their habit of rejecting everything that she says. She challenges as untrue and unreasonable criticisms made of her by them. She says that she should not have to pay the costs because of her financial position. She has referred to two letters of February 1997 relating to an award of income based job seekers allowance, and to income benefits. She has criticised certain aspects of the decisions given by this tribunal. In particular, a revision of one of the judgments which was made at her request in relation to a complaint by her that one of the lay members at one of the hearings had been asleep. She criticised the failure to provide her with particulars of the application for costs when she requested it. She criticised the fact that this was a Health Authority, which is now the responsibility of the Secretary of State, seeking to have an unrepresented person pay the costs of the proceedings.We have come to the conclusion that we should order Miss Somjee to pay part of the costs of the appeal in EAT/1366/95 and EAT/199/96. We do not think it appropriate to order that she pays all the costs. An estimate was given by Mr Benson on instructions that those costs of the Health Authority amounted to £7,776.00. We consider however, that she should pay a proportion of the costs. We assess the sum appropriate, in all the circumstances, at £2,500.00.We make it clear that we do not include in that the costs of today. We are aware of the particular difficulties that Miss Somjee has had today. We are grateful to the efforts which she had made. We have sympathy for the difficulties which she has had in travel arrangements, and also in not receiving the skeleton argument of Mr Benson until Wednesday. The £2,500.00 is to be regarded as part of the costs incurred by the Health Authority at the hearing in June 1996, and not the costs of today's hearing.As to the enforceability of this sum, we find ourselves in the position where we do not have full information on matters contested between the Health Authority and Miss Somjee. We add this rider to the order, that the order for costs is not to be enforced against Miss Somjee without the leave of this tribunal. The matters on which we have incomplete information are these: Miss Somjee says she has no money and that she is on State Benefits. The Health Authority say she has worked as a locum, and that she may receive a refund of a lump sum of money from her solicitors and Counsel if and when the Legal Aid position is sorted out. We understand the point of the Health Authority that, if a sum comes back into Miss Somjee's hands from that quarter, then it may be appropriate for the Health Authority to enforce their order for costs against that sum.To sum up, we make an order that Miss Somjee pays that part of the costs of June 1996, because in our view, she has, as in respect of those appeals, acted unreasonably. She has brought cases which have not only been unsuccessful, she has made allegations in them which were not substantiated by evidence. The appeals stood no real prospect of succeeding.The order we make is that Miss Somjee pays to the Health Authority £2,500.00 as part of the costs of the hearing of the two appeals on 6th and 7th June 1996, EAT/1366/95 and EAT/199/96. That order is not to be enforced against her without the leave of this tribunal.Legal Aid taxation of the appellant's costs on the appeals EAT/87/90 and EAT/88/90.The appellant's application for leave to appeal to the Court of Appeal is refused. Costs are a matter of discretion. It is for the Court of Appeal to decide whether it is arguable that our discretion has been wrongly exercised.