MR V H MCGRATH v ELLIOTTS BOND & BANBURY [1999] UKEAT 778_99_1207

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 778_99_1207Case No Appeal No. EAT/778/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR V H MCGRATHAPPELLANTELLIOTTS BOND & BANBURYRESPONDENT
Before
His Honour Judge Peter Clark Mr L D CowanLord Gladwin of CleeDate 12 July 1999
[1]APPEARANCES For the Appellant MR P WARD (of Counsel) Messrs Arora Lodhi & Heath Solicitors 110 Uxbridge Road Shepherds Bush London W12 8LR For the Respondents MR D ISRAEL (Solicitor) Messrs Wedlake Bell Solicitors 16 Bedford Street Covent Garden London WC2E 9HF JUDGE PETER CLARK : This case is proceeding before the London (North) Employment Tribunal.[2]The respondent is a firm of solicitors, practising from the Broadway, Ealing. The senior partner is Mr Peter Reinold.[3]The applicant commenced what were then articles with the respondent in 1988. He qualified as a solicitor in December 1990 and thereafter remained with the firm as an Associate Solicitor until his dismissal on 24th December 1997.[4]By two separate Originating Applications dated 3rd and 13th March 1998 he complained, first of unfair dismissal, wrongful dismissal and breach of contract and secondly of unlawful racial discrimination. The claims are resisted.[5]Both parties are represented. The applicant has instructed Arora Lodhi Heath ["Arora"], who in turn have instructed Counsel, Mr Peter Ward to act on the applicant's behalf. The respondent is represented by Wedlake Bell.[6]On 23rd April 1999 a directions hearing took place before a Chairman, Ms A M Lewsey, sitting alone. On that occasion Mr Ward represented the applicant and Mrs Tubbs of Wedlake Bell represented the respondent.[7]By a letter dated 27th April the Chairman recorded the directions which she gave. In particular, the issues raised in the complaints of unfair dismissal and race discrimination were identified; the claims of wrongful dismissal and breach of contract were withdrawn by the applicant. Further, the case was listed for a full merits hearing to take place on 13th-15th July 1999, although it was recognised that the respondent would not know what witnesses they had to call until the applicant's complaint of racial discrimination was fully particularised. The Chairman directed that no applications for a postponement of that hearing date would be entertained after 17th May 1999.[8]On 17th May Wedlake Bell faxed the Employment Tribunal asking for a postponement of the hearing fixed for 13th-15th July. The grounds for that application were that Mr Reinold, described as an important witness for the respondent, had a pre-arranged holiday at that time. A copy of that letter was sent to the respondent client, but not to Arora.[9]On 27th May Arora wrote to Wedlake Bell stating that they had received a call from the Employment Tribunal concerning the postponement application. They pointed out that they had not been consulted and that the directions hearing had been fixed by an earlier letter dated 16th March. At the hearing no objection had been taken to the dates fixed for the hearing in July. They enquired when Mr Reinold had booked his holiday. They concluded by saying that they had not raised any objections to the hearing being re-arranged. They simply registered surprise at this turn of events.[10]On 2nd June the Employment Tribunal responded to the respondent's application for a postponement. It was refused by a Chairman on the following grounds:
"(1) You [ the respondent ] have not stated: (a) what the witness can give evidence about (b) how that evidence is relevant to the issue(s) Have you considered whether some other witness can give the necessary evidence? (2) The dates were fixed at the Interlocutory Hearing on 23 April 1999 and no explanation has been given as to why the application was not made earlier. (3) No documentary evidence has been provided as to when the holiday was booked. (4) Moreover your opponent has objected to the postponement requested."
A copy of that letter was sent to both parties.[11]On 9th June Arora responded to that letter. They pointed out to the tribunal that they did not object to the postponement; there had been a misunderstanding. They then added:
"However, given that Mr Reinold is an important witness, we think it is very important that he should be present at the hearing."
[12]Armed with a copy of that letter Wedlake Bell wrote again to the tribunal on 18th June, renewing their application for a postponement.[13]No response was received, and Wedlake Bell sent a reminder to the tribunal by fax on 30th June, having first spoken to a Mr Kelly of the tribunal staff.[14]On 1st July Arora faxed Wedlake Bell, dealing with certain matters of preparation for the hearing and referring to the adjournment application. They there stated that if they did not hear by noon on Monday, 5th July that the hearing was adjourned they would cease to support the respondent's application and would in fact argue actively against it. They also sought documentation regarding Mr Reinold's pre-arranged holiday. That letter was not copied to the tribunal.[15]Wedlake Bell responded on the same day. They pointed out that the tribunal has mislaid the file, hence the delay in responding to the respondent's renewed application for postponement.[16]On 5th July Arora faxed a letter to the respondent without mentioning withdrawal of support for the postponement application.[17]On 6th July Wedlake Bell again faxed the tribunal urging a response to their postponement application. They referred to Arora's earlier consent to the application, although not in terms their fax of 1st July which indicated that consent would be withdrawn if no decision was made by noon on 5th July. They also referred to Mr Reinold's holiday having been booked in early March and that copy invoices could be produced. Pausing there, the invoices, which we have now seen, show that the bookings had been made on 30th or 31st March. Subsequent to that fax being sent to the tribunal, Arora faxed the respondents stating that they now opposed the postponement application. Again no copy of that fax was sent to the tribunal. In the final paragraph of that fax they say:
"Finally we reserve a right to produce this letter to the Court should it suit our purposes."
[18]On 6th July the tribunal finally responded by telephone. A Chairman had granted the postponement. That order was in due course confirmed by letter to the parties dated 8th July.[19]On 7th July the applicant launched this appeal against the Chairman's order of 6th July.[20]In the appeal Mr Ward takes two points. First he submits on the authority of Bowater Plc v Charlwood [1991] IRLR 340 that the Chairman fell into error by not giving the applicant an opportunity to make representations on the respondent's renewed or fresh application for a postponement before making the order of 6th July. We cannot accept that submission. The circumstances of this case, as appears from the chronology, were that on the material before the Chairman, particularly the applicant's letters of 27th May and 9th June, the applicant did not object to the postponement. No satisfactory explanation has been given to us as to why copies of the applicant's letters of 1st and 6th July were not sent to the tribunal, indicating their change of heart, or indeed any other communication between those dates.[21]Secondly, it is said that the decision to grant the adjournment on 6th July was perverse. Mr Ward recognises that the Chairman has a wide discretion in those matters. Carter v Credit Change Ltd [1979] ICR 908 . However, he submits that the discretion was not exercised judicially on these grounds:(1) Looking at the four reasons for originally refusing the postponement application on 2nd June, grounds(2) and(3) still stood. That may be so, but the Chairman was required to exercise his discretion afresh. His judgment was no doubt materially influenced by the relevance of Mr Reinold's evidence, which is now common ground, and the applicant's apparent non-opposition to the postponement. (2) The respondent's solicitors misled the Employment Tribunal as to the applicant's position. We cannot accept that. It was for the applicant to make his objection known to the Employment Tribunal. He did not do so. Further, the applicant's initial change of position indicated in the fax of 1st July to the respondent's solicitors was conditional. It was not repeated in the applicant's solicitors fax of 5th July. By the time is had crystallised in their fax of 6th July, the respondents had earlier that day already sent their fax to the Employment Tribunal. In our view, they did not mislead the tribunal. (3) This is an old case. Justice delayed in justice denied. The holiday arrangements of Reinold ought not to take precedence over the needs of justice. See Newsquest Ltd v Powers (EAT/877/97 – 29th July 1997 – Unreported – per Judge Hull QC – Transcript paragraph 7F). We note that in Newsquest this EAT declined to interfere with the exercise of the Chairman's discretion to refuse a postponement on the grounds that the respondent's managing director, a material witness, would be on holiday abroad at the time of the hearing. It seems to us that it was open to this Chairman to refuse or allow the postponement; either decision would fall within the proper exercise of his discretion on the facts of this case.[22]In these circumstances we shall dismiss this appeal. JUDGE PETER CLARK : Having delivered our judgment in this appeal, Mr Israel on behalf of the respondent, applied for the costs in the appeal. That application had been foreshadowed in the respondent's answer. Our powers to order costs in appeals are circumscribed by Rule 34(1) of the EAT Rules which provides:
"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."
Mr Israel submits that this interlocutory appeal was a non-starter, to use the expression of Bristow J in Redland Roof Tiles Ltd v Eveleigh [1979] IRLR 11 . He submits that the history of the matter shows that no point arose under the principle in the case of Bowater and further, that this was a proper exercise of the Chairman's discretion, such that no perversity argument could succeed. Mr Ward counters that he had relied on two authorities; that the respondent's solicitors have not conducted themselves in a way that could be described as exemplary; in particular, there had been delay in providing the receipts for Mr Reinold's holiday until the very last minute. Litigants who bring appeals against interlocutory orders of Chairman which are necessarily listed as inter partes hearings because very often they are urgent, should think long and hard before doing so. We are quite satisfied that this appeal was both unnecessary and unreasonable within the meaning of Rule 34(1). We consider that it raised no arguable point of law; that it was pursued for purely tactical reasons and, in these circumstances, we shall uphold the respondent's application. We have been given an estimated figure for the respondent's costs in the appeal, but we think that the proper course is to order the applicant, who is a solicitor, and therefore not without means and not without some perception of his own case to pay the respondent's costs in the appeal to be taxed if not agreed.