MR D LINDOP v ROYAL ORDNANCE PLC [2000] UKEAT 1480_99_0504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1480_99_0504Case No Appeal No. EAT/1480/99 & EAT/51/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D LINDOPAPPELLANTROYAL ORDNANCE PLCRESPONDENT
Before
Mr Justice BurtonLord Davies of CoityDate 5 April 2000
[1]APPEARANCES For the Appellant MR B COLLINS (of Counsel) Appearing under the ELAAS Scheme MR JUSTICE BURTON : Two appeals have been brought by Mr Lindop against Royal Ordnance PLC in respect of the application to and grant by the Employment Tribunal at Newcastle-upon-Tyne of costs orders in favour of Royal Ordnance PLC as a result of the dismissal of Mr Lindop's application to which I have just referred in the lengthy decision dismissing his appeal (EAT/1132/99) against the dismissal of his applications. There are three bases which Mr Collins has put before us for such appeal in respect of a costs order made by the Tribunal on 22nd November 1999, ordering that the Respondent's costs of those applications be assessed and be paid by the Appellant on the basis, as I quote, in paragraph 11:
"In making the order the tribunal is satisfied that Mr Lindop's approach to these proceedings from the outset was unreasonable. Its satisfaction that the case rested on misrepresentations and falsehoods suggest that Mr Lindop's approach might also be classified as frivolous and/or disruptive."
[2]The three grounds are as follows. First, that there had already been an application for costs made to the Tribunal, such that when the application was made, as it was suggested on 8th September 1999, it was either too late or an application in respect of a matter which was res judicata already.[3]It seems to us that this is wholly unarguable.[4]In relation to the suggestion that there had already been an application for costs and thus the matter was res judicata , this rests upon the inclusion of paragraph 73 in written submissions put in on behalf of the Respondent at the close of the lengthy hearing of the substantive case on 4th May 1999, when Counsel concluded as follows:
"We ask you to dismiss these applications and to find at this stage that the Applicant has committed perjury and misled the Tribunal, lengthened the proceedings and without cause increased the costs of this hearing."
It is thus clear that at the very least the Respondent was wanting to make an application for costs at that stage.[5]The Tribunal of 28th July 1999 did not deal with costs and dismissed the application.[6]Within days of receipt of that decision, the Respondent employers wrote a letter of 4th August 1999 giving advance notice that it was the intention of the Respondent to make an application for costs, and letting the Tribunal know that it was currently considering the decision very carefully, following which, it was their intention to submit on behalf of the Respondent an application for costs as soon as possible. That considered application was made on 8th September 1999, which led in due course to the decision of the Tribunal in November to which I have referred.[7]We are entirely satisfied that there is no question of res judicata . The decision did not deal with costs. It neither granted nor refused the application for costs which had been adumbrated in paragraph 73 of the written submissions. It is certainly right to say that paragraph 73 sets out the grounds upon which an application for costs is capable of being made, but it did not in terms say "we therefore ask the Tribunal to make an order for costs" and even if it had done, the decision did not deal with it and therefore no decision whether to grant or not to grant costs was made, leaving open the possibility for the making of such an application for costs.[8]There is no time limit under the Rules for the making of an application for costs, but no doubt it would be encouraged that any such application should be made expeditiously. It seems to us that the Respondent employers did act expeditiously in relation to the proceeding to which I have referred, the letter of 4th August followed by the letter of 8th September. The conclusion by the Tribunal after considering their submissions, was to make the order I have referred to.[9]The second ground put forward by Mr Collins is that the Tribunal took inappropriate matters into account when reaching its conclusion that the Appellant's conduct had been unreasonable. Reference is made in the decision of 22nd November relating to costs to the conduct of the Appellant, and in paragraph 10 the Tribunal sets out the matters of which it took account:
"(a) As the reserved decision shows, the tribunal was unanimous in deciding that the applicant was not unfairly dismissed and that his complaint of unlawful discrimination on the ground of race was not well founded. (b) As it set out in the extended reasons for the reserved decision the tribunal regarded Mr Lindop's evidence as altogether unreliable. The extended reasons set out in the reserved decision show that the tribunal was satisfied that Mr Lindop misled the employer first during the course of a disciplinary hearing and later during the course of an appeal hearing. Furthermore it is apparent that the tribunal was satisfied that Mr Lindop attempted to mislead the tribunal. In making his submissions against the respondent's application for costs Mr Lindop referred to the time taken by the tribunal over its deliberations. He contended that that time showed that it must have been necessary for the tribunal to analyse the evidence and that of itself implied that there was substance to his complaints. The tribunal did indeed have to take time over its deliberations but the implication for which Mr Lindop argues is quite misconceived. The tribunal's time was taken over the exclusion of so much that was irrelevant and in separating what was fact from what was false. …"
[10]Mr Collins submits that the reference to the Tribunal being "satisfied that Mr Lindop misled the employer first during the course of a disciplinary hearing and later during the course of an appeal hearing" is not an appropriate matter for the Tribunal to take into account when considering whether Mr Lindop had been unreasonable.[11]First, it appears to us that that sentence may well have been recited in the context of the alternative conclusion the Tribunal said it might have come to had it not, in any event, concluded that Mr Lindop's conduct was unreasonable, that his approach had been or could be called "frivolous" , because the bringing of a case which is known to be hopeless would count as frivolous.[12]However it appears to us, in any event, that it was entitled to recite the way in which Mr Lindop had behaved during the disciplinary hearing and appeal hearing, and continued on through to the Tribunal hearing, as part of the case that he had in fact told lies throughout and had misled not only the employer but the also the Tribunal. It seems to us entirely open to the Tribunal to take that into account in concluding that the Appellant had acted unreasonably in relation to the bringing of his application, quite apart from the way in which he pursued it at the hearing. We are satisfied that there is no basis upon which the exercise of the discretion of the Tribunal to award costs can be criticised.[13]Thirdly, Mr Collins raises the question of the Appellant's means. It is obviously a matter of some concern that the costs order in this case in relation to a case which went on some 40 days where the Respondent had solicitor and counsel will inevitably come to a great deal of money. The order that has been made is going to be a heavy one for Mr Lindop to cope with. The fact remains, however, that the Tribunal, which is obliged to consider the question of the means of a party to pay costs before making an order, did consider Mr Lindop's means, indeed it recites as much in paragraph 10(e) "the tribunal did note details of Mr Lindop's financial resources" . Unfortunately the present rules in the Employment Tribunals are such that the Tribunal cannot award a lump sum of costs of more than £500 and always then has to send the matter off to taxation or assessment, at which stage it is simply a question of assessing how much costs have been spent, or have been reasonably spent, and the means of the party who has to pay them at that stage are not considered. Certainly it appears to us that it would be sensible to extend the powers of the Tribunal, having heard the question of the means of a party charged, to make a much larger lump sum suitable to the justice of the case. But that is not presently open to the Tribunal. I anticipate that it will be a substantial sum which will result from taxation, but I am sure that the Tribunal also so anticipated. The Tribunal made the necessary enquiries about means, and indeed we have been told today that Mr Lindop does have some assets, and in those circumstances it appears to us that there is no ground for a challenge to the order for costs on that basis either.[14]In those circumstances, the appeal is dismissed.