Chambers v Mission Care [1999] UKEAT 533_98_2201

EAT
Chambers v Mission Care
[1999] UKEAT 533_98_2201 · 1999-01-22

JUDGE C SMITH :

We first must give judgment in the Appeal that is listed for disposal today which is an interlocutory appeal against the ruling of the Chairman given during the course of these proceedings brought by the Appellant, Ms Chambers, against Mission Care.What happened, as can be seen quite clearly from the very careful decision of the Industrial Tribunal, held at London South in April 1988, was that the Tribunal made a unanimous decision that Mr Cedenio, who was the consultant representing Ms Chambers, should not be permitted to cross examine a particular witness, Mr De Souza any further. We do note that that was a unanimous decision of a full Tribunal and we note carefully all the extended reasons, particularly the last paragraph where it is clear that this was a very careful and reflective decision. The Industrial Tribunal there said that they had not taken any premature decision on whom they had believed in this case, and continued as follows:
"That must wait until we have heard all the evidence and the submissions. We recognise that our power under Rule 9 is wide and we must therefore exercise it with care. The Chairman has only once done this before but in this case it is the unanimous decision of the Chairman and two experienced Members who are both on the race panel that none of the information sought by cross-examination is relevant to any of the issues in this case, nor to the general credibility of this witness."
It is absolutely clear that the Tribunal were very concerned at the exceptional decision they were taking and only took it very advisedly and against a background where they had made quite sure in their own minds that further cross examination really would not throw any further light on the issues and, also, in circumstances where they were quite clearly stating they were keeping their minds quite open about the ultimate result of the case.It would have been very difficult to appeal, in our judgment, against that decision but the point is that this has all been completely overtaken by events. Because what then happened was, the history of the matter was, that it was agreed between the Chairman and the parties that - as set out very helpfully in the skeleton argument we have received and considered today on behalf of the Respondents - was that an undertaking was given by Mr Cedenio that he would not pursue this particular Appeal in exchange, so to speak, for the Tribunal, very sensibly, allowing further cross examination. So in that sense revoking its decision against an undertaking being given that the Appeal would not be proceeded with further.All that is carefully recorded by the Chairman, who has had the courtesy to send us a letter, addressed to the Registrar dated 14 January 1999, referring to his notes which are absolutely explicit on the point, since they make clear that Mr Cedenio had undertaken to withdraw the Appeal, that is to say, this Appeal. Mr De Souza being recalled, he was then much further cross examined and at the end of that the Chairman carefully asked the representative:
"Have you now asked all the questions you wish?"
To which the response was: "yes".Well in those circumstances we take the view that to continue to pursue this Appeal was in fact an abuse of the process of the Employment Appeal Tribunal, but in any event, in the light of the undertaking that was given not to pursue it, we have no hesitation in dismissing the Appeal, and that is what we do. That disposes of that particular appeal.We now give a further judgment. There has now been an application by the Respondents, in the light of the judgment we have just given relating to the disposal of this Appeal, for an order that they should have at least a proportion of their costs in contesting this Appeal which we have already categorised as really being quite hopeless and one that was covered by the undertaking and should never really have been pursued.We fully realise that it is only in very exceptional circumstances that we would order costs. Rule 34 is in these terms:
"Where it appears to the appeal tribunal any proceedings were unnecessary, improper or vexatious or there has been other unreasonable conduct in bringing or conducting proceedings a tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs incurred by that other party in connection with the proceedings."
And by the next sub-rule:

"The tribunal may assess the sum to be paid."

Those are our powers and in our judgment there is no doubt that the continued prosecution of this appeal was completely unnecessary, improper and vexatious and amounted to unreasonable conduct on the part of the Appellant. There is no doubt at all it falls squarely within the rule.What has troubled us is that we have very limited information as to the means of the Appellant although we are told - and we accept - that she is employed as a Senior Nurse by Age Concern, so we have to make an intelligent estimate of her income, which we realise would not be in any way substantial.In those circumstances, as we accept that the Respondents have incurred the costs which they have quoted to us, namely a figure approximating to £1,200, we consider it appropriate here that we should order the Appellant to pay the sum of £250 towards the costs of the Respondents to this appeal. But we will add a qualification to the order that will allow the Appellant seven days in which to make representations to us, on at least one day's notice to the Respondents' Solicitors, if she seeks to persuade us that on the basis of her means alone she is not able to comply with that order.