French v Susan D Woodall Solicitors [1998] UKEAT 226_98_2210

EAT
French v Susan D Woodall Solicitors
[1998] UKEAT 226_98_2210 · 1998-10-22
MR JUSTICE MORISON (PRESIDENT) : In this case the appellant lodged a Notice of Appeal against the unanimous decision of an Industrial Tribunal which dismissed her complaint of unlawful discrimination on the grounds of sex and unfair dismissal and which ordered her to pay to her former employers, Susan D Woodall Solicitors, £500 by way of costs.The Industrial Tribunal in paragraph 40 of its decision said this:
"40 We are satisfied that the Applicant's claims were vexatious in the sense that they were made out of spite and with the intention of harassing the Respondent and with a view to damaging her business. Allegations made against [ a partner in the respondent's business ] were of sexual misconduct going back to 1994 and 1995. There was no truth in the allegations and the motive for making them was to cause embarrassment and harm to a firm of solicitors. ..."
On that basis they made an order for costs against the applicant in the sum of £500.The respondents in this case lodged a PHD form in accordance with our Practice here and indicated in it that they wished to advance a cross-appeal to the effect that the sum awarded by the tribunal, namely £500 by way of costs, was perversely low. Before the matter could come on for hearing, the appellant notified the EAT that she did not wish to pursue her appeal and accordingly an order was made dismissing it upon withdrawal.The respondents to the appeal have asked for costs. They say that they have incurred very substantial costs, even before the PHD hearing. Those costs involve advising their clients as to their prospects of success and how to complete the PHD form, and settling the PHD form together with its cross-appeal. The total costs, excluding VAT, of the respondent firm and her advisers amounts to a sum of just over £1,000.The PHD system is designed to provide a service to litigants here which will avoid the need for respondents to appeals to incur significant costs up until the PHD hearing has taken place. Although they are required to fill in a PHD form they are not required to file an answer to the appeal until after the EAT has permitted the appeal to proceed. The object of the exercise therefore is to spare respondents from incurring heavy expenditure in relation to appeals which are not appeals on points of law and which must be dismissed at a preliminary stage.In those circumstances, I regard the sum of £1,000 in terms of what order for costs should be made against this appellant as excessive and out of proportion to what could reasonably have been anticipated by an appellant who decides to withdraw her appeal.On the other hand, this was obviously a case of some particular importance to the people involved as it involved allegations of a scandalous nature and cross-allegations that those contentions were being made out of spite and ill will. It was therefore to be expected, as I see it, by the appellant that if she lodged a Notice of Appeal some costs would be incurred up to the PHD stage which would be rather more than one would expect in a normal type of case.The appellant's explanation for withdrawing the appeal is that she discovered that she did not qualify for Legal Aid because of her husband's earnings, and therefore, she did not feel that she could afford legal representation.As an explanation for lodging an appeal and then not pursuing it, I do not consider that satisfactory. People are quite capable of pursuing appeals unrepresented if they genuinely believe that there is merit in them. I am not surprised that the appeal was withdrawn when it was because it appears to me at first sight at any rate, not to have had any merit in it. She was seeking to resurrect allegations which had been firmly and properly rejected by the Industrial Tribunal.The powers of the Employment Appeal Tribunal to award costs are circumscribed by the Rules. We have to be satisfied that there has been at the very least unreasonable conduct in pursuing an appeal. I am satisfied that it was unreasonable to launch an appeal in this case which had no sensible prospect of success. I would infer that it was being done with the same motive in mind as that found by the Industrial Tribunal in paragraph 40 of their decision.I have power to assess the costs which I understand I am being invited to do in this case rather than ordering them to be taxed. Accordingly, the figure for costs which I think would be fair and reasonable in all the circumstances is in the sum of £300. That reflects, in my judgment, the matters to which I have referred and I have erred on the side of caution, bearing in mind there is to be no taxation of the costs.