Lockwood v Permic Ltd (t/a Permic Emergency Lighting) [1998] UKEAT 694_97_1002

EAT
Lockwood v Permic Ltd (t/a Permic Emergency Lighting)
[1998] UKEAT 694_97_1002 · 1998-02-10

JUDGE PETER CLARK :

By an Originating Application presented to the Industrial Tribunal on 9 September 1996 the Appellant, Ms Lockwood, complained principally of sexual harassment by the Managing Director of the Respondent Company, during the course of her employment as an office and sales clerk, she was then aged 19 years, between about February and June 1996. That amounted to a claim of unlawful direct sex discrimination against the Respondent, being vicariously liable for the acts of its Managing Director. In addition, she made various complaints under the Employment Rights Act 1996.By a Notice of Appearance, settled by Solicitors and dated 27 September 1996, the Respondent resisted the complaint. However, the Solicitor's retainer was terminated on 22 October 1996 and thereafter the Respondent was in person.On 25 November 1996 a directions hearing was held at the Sheffield Industrial Tribunal and the substantive hearing was arranged for Tuesday 25 March 1997.The Appellant was represented by the Chesterfield Law Centre. We see from an affirmation made by Mr de Haney, the Solicitor acting for the Appellant, in these appeal proceedings on 7 November 1997, that the Appellant attended his offices at 5.00 pm on 24 March 1997 by appointment. She was given a copy of the bundle of documents served by the Respondent that afternoon. She was also informed that two witnesses whom it had been intended would be called on her behalf had decided not to attend voluntarily to give evidence before the Industrial Tribunal. The Appellant expressed concern that reference might be made during the proceedings to a an alleged suicide attempt which she had made before entering the Respondent's employment. That appears in a witness statement made by Ms Longden and contained in the Respondent's bundle. Nevertheless, it was then agreed that the case would proceed the following day. She left the Law Centre offices shortly after 6.00 pm. It was arranged that she would return at 8.30 am the next day.On the morning of the hearing Mr de Haney arrived at 8.15 am. The Appellant did not show. At 8.45 am he listened to the office answerphone. There was a message from the Appellant saying that she could not proceed with the hearing. She sounded very distressed. Mr de Haney telephoned the Appellant. His file note of that conversation reads, "she could not face all the stuff, especially around suicide attempts, getting in papers etc".Mr de Haney then faxed the Sheffield Industrial Tribunal in these terms:

"Dear Sirs

We have now at 8.45 am received instructions that our client, the above named applicant, wishes to withdraw her application. Her reasons for the late withdrawal are because of the decisions by her witnesses not to attend and because of the documents served by Permit yesterday afternoon. If further explanation or attendance is required by us as her representative, please contact the writer."The Industrial Tribunal faxed a reply asking him to telephone their offices. He did so and was informed by a member of the Tribunal staff that the Chairman had indicated that there may be a question of costs.Mr de Haney attended the Industrial Tribunal. The Tribunal permitted withdrawal of the application by the Appellant, who was not present. The Respondent attended with a number of witnesses. The question of costs was raised.The Respondent claimed that their costs bill had run into several thousands of pounds. The Tribunal, in their extended reasons dated 15 April 1997, state that they heard from the Managing Director that one Solicitor's letter had cost £1,500. They did not believe that, although we have now seen a Solicitor's bill for £900 plus VAT for advice given in connection with the complaint.Mr de Haney opposed an order for costs. At paragraph 10 of his affirmation he says this:
"The Chair then invited me to make submissions as to costs. I said I believed that the principal was more important than the amount in this case. That in this case the applicant had not acted frivolously, vexatiously, abusively or unreasonably in bringing the proceedings or withdrawing at this late stage. That the reasons for the withdrawal were: (i) that the Respondent was representing himself and this meant that the applicant had the added burden that she would in fact be cross-examined by her alleged harasser;
(ii) that we had been served with a bundle of documents yesterday which contained allegations about her personal life which although in my view were not relevant to the case I had been unable to assure her that they would not be made public;(iii) that her only two witnesses had informed us that they would not now attend;and that these two last things had only been communicated to the applicant last night after 5.00 pm when she came to the Law Centre."In the event the Tribunal found that the Appellant had acted unreasonably within the meaning of Rule 12 of the Industrial Tribunal Rules of Procedure 1993 in withdrawing her complaint on the morning of the hearing, thereby putting the Respondent and its witnesses to the expense of attending and awarded the maximum specified costs figure of £500 in favour of the Respondent against the Appellant.Against that order the Appellant now appeals.Miss Crasnow takes three points in the appeal. We shall deal first with her second point, which is that the Tribunal's decision to award costs at all, on the basis that the Appellant had acted unreasonably in withdrawing her application on the morning of the hearing, was perverse in the sense that no reasonable Industrial Tribunal, properly directing itself in law, could reach such a conclusion. She relies upon the same arguments put before the Industrial Tribunal by Mr de Haney and set out in paragraph 10 of his affirmation, referred to earlier in this judgment.We reject that submission. It seems to us that the Industrial Tribunal was entitled, having considered those matters, to conclude that the Appellant had acted unreasonably in withdrawing at the last minute and that an award of costs ought, in principle, to be made.Her further submissions relate to the quantum of the costs order made. As to this, she argues first, that in their reasons the Tribunal make no reference to the Appellant's means; although Mr de Haney did not himself refer to her means, and she was not herself present, as the Chairman points out in his letter to the Employment Appeal Tribunal dated 29 October 1997. It is common ground before us that this exchange, referred to in paragraph 9 of Mr de Haney's affirmation, took place: I quote:
"The Chairman then explained that this was not the County Court and any costs awarded would be limited to £500. The Chair then asked 'Are we talking about somebody without any money?'. The Respondent Mr Longden replied immediately, 'Oh yes, she's no money at all!'."
It was therefore plainly before the Industrial Tribunal that the Appellant was of limited means. Had further enquiries been made the Tribunal would have learned that the Appellant was at the time a student in Newcastle, getting by on a student loan and parental assistance.Secondly, it is said that the Tribunal made no enquiry into the actual costs to the Respondent of the wasted morning caused by the withdrawal. We are told by Miss Longden that the Respondent offered to prepare a calculation, but was told by the Chairman that this was unnecessary. She has candidly accepted that the Respondent was surprised to receive the maximum specified award of costs. Based on the submissions put before us today we are satisfied that a reasonable figure for those costs was £250.In our judgment the further submissions made on behalf of the Appellant have force and are accepted. It is well established in authority, see Wiggin Alloys Ltd v Jenkins [1981] IRLR 275, that a relevant factor for the Tribunal to take into account when considering an award of costs is the means of the Applicant. The information was available to the Tribunal but it failed to take that factor into account on the face of its reasons.In that respect the Tribunal fell into error. Further, no attempt was made to establish the true expense to the Respondent of the late withdrawal and no reasons are given for arriving at the figure of £500, see Meek v City of Birmingham City Council [1987] IRLR 250 . Had that been done, it would have been apparent to the Industrial Tribunal that the maximum specified award was excessive in all the circumstances of this case.Accordingly, we shall set aside the order for £500 costs. We have been asked by the parties to bring the matter to a conclusion ourselves, rather than remit the case for a further Industrial Tribunal hearing. We shall do so.Miss Crasnow submits, first, that even if the costs order was right in principle, no order should be made in view of the Appellant's means. We reject that submission; impecuniosity will not of itself necessarily debar the making of a costs order, see Wiggin Alloys Ltd . However, we accept her alternative submission that in assessing any award we should balance the reasonable costs incurred by the Respondent against the means of the Appellant, as they were at the time of the Industrial Tribunal hearing in March 1997. Doing the best we can on the information before us, we shall order the Appellant to pay costs in the sum of £125, representing one-half of the reasonable expenses incurred by the Respondent on the wasted morning of 25 March 1997.The appeal is allowed to that extent.