MR A B GHOSH v LONDON BOROUGH OF TOWER HAMLETS [1999] UKEAT 220_99_0207

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 220_99_0207Case No Appeal No. EAT/220/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A B GHOSHAPPELLANTLONDON BOROUGH OF TOWER HAMLETSRESPONDENT
Before
Mr Justice Charles Mr D J Hodgkins Cb Mr D A C LambertDate 2 July 1999
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE CHARLES : This appeal comes before us by way of a preliminary hearing. The parties are a Mr Ghosh and the London Borough of Tower Hamlets. The appeal is against a decision of the Employment Tribunal which was sent to the parties on 22 December 1998. The subject matter of the appeal is the conclusion in paragraph 15 of that decision, that the Applicant, Mr Ghosh, pay to the Respondent its wasted costs, such costs to be taxed under Scale 2 of the applicable County Court Scales.[2]The most relevant paragraphs in the Extended Reasons are paragraphs 11 to 15. Although the Employment Tribunal do not mention it, the relevant rule is rule 12 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule 1, which begins with the following passage:
"12(1) Where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the tribunal may make - (a) an order containing an award against that party in respect of the costs incurred by another party; (b) an order that that party ..."
[3]A main plank in the reasoning of the Employment Tribunal was their decision that the proceedings should start again, rather than simply be adjourned, and they based that conclusion on their observation of Mr Ghosh and his state of health during the period of the proceedings. At no stage was any medical evidence provided.[4]Any issue as to costs is very much a matter for the discretion of the Employment Tribunal. In allowing this appeal to go ahead we are very conscious of that point and thus the difficulties in successfully attacking an exercise of discretion. Although the Tribunal did not mention rule 12 it seems to us plain that they had it mind.[5]However, it is the case that this is a discretion that is rarely exercised by a Tribunal and a factor, which would be obvious to anyone involved in litigation, in making this order is that it could cause difficulties to Mr Ghosh in continuing with his claim and would be a negotiating factor between him and the Respondents. In our judgment that point does not go to the substantive test in rule 12, namely as to the manner in which a litigant has been conducting the litigation but does go to the overall discretion of a Tribunal in making an order for costs.[6]It is also potentially in the exercise of this overall discretion, that Mr Ghosh's personal financial circumstances may be taken into account. That is a matter that Mr Ghosh urges upon us. It is a matter referred to in the Extended Reasons.[7]If the points referred to in paragraphs 5 and 6 were the sole matters we may not have permitted this appeal to go ahead but as we are doing so on other grounds, in our judgment those points, namely Mr Ghosh's dire financial circumstances and the obvious litigation or negotiating effect of the costs order should be left as issues.[8]In our judgment the other points are that it is reasonably arguable that the Tribunal erred in abandoning rather than adjourning the case which, as we have said, is a fundamental point in their reasoning as to the award of costs. As to that, it seems to us on the information presently before us, that it was not the application made by Mr Ghosh. Secondly we are unclear as to whether it was a point made by the Respondents. Thirdly, it was not based on any medical evidence.[9]It is not uncommon, unfortunately, for proceedings of this sort to have to be adjourned and, it seems to us, that there is an arguable point that that was the course that should have been adopted in this case. That infects the overall costs decision.[10]Further, in our judgment, it is arguable that in any event the Tribunal did not take that part of their reasoning (i.e. that the hearing should be abandoned rather than adjourned) into account properly as a factor, or do not properly explain why they considered that the high test in rule 12 is satisfied and why they exercised their discretion. In this context, as we understand their reasoning, it was their own observations that demonstrated that Mr Ghosh was ill. If he had been acting purely in person and was ill it is not immediately apparent why he would have been acting unreasonably within the terms of the rule. It seems to us arguable that, given the nature of his representation, the discretion as to costs should not have been exercised so as to make him bear a financial burden for decisions that were made on his behalf, or with the benefit of advice, in continuing the case. A further point that arises is as to why the Employment Tribunal did not intervene and end the hearing earlier if it was apparent to them that Mr Ghosh was not fit to continue with the benefit of the representation he had.[11]Finally, a point which seems to us to be reasonably arguable stems from the fact that it is unclear to us precisely what the Tribunal had in mind when referring to wasted costs, and whether what is being claimed and what they are ordering are the entire costs of the proceedings or the costs of particular days. That is a point of detail which may disappear when the matter comes on for substantive hearing and the amount claimed becomes known.[12]On the basis of the arguments we have identified, we have concluded that reasonably arguable points of law are raised on this appeal and therefore we shall permit it to go forward to a full hearing. We will give it Category B and direct that it be set down for a day.