MR P J LILBURNE-BYFORD v ESSEX COUNTY COUNCIL [2000] UKEAT 264_98_1311

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 264_98_1311Case No Appeal No. EAT/264/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P J LILBURNE-BYFORDAPPELLANTESSEX COUNTY COUNCILRESPONDENT
Before
His Honour Judge H Wilson Mr J R Crosby Mr N D WillisDate 13 November 2000
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRSENTED For the Respondents MR MICHAEL LANE (of Counsel) Essex County Council Corporate Services PO Box 11 County Hall Chelmsford Essex CM1 1LX JUDGE WILSON : This has been the hearing of a full argument concerning the appeal by the original applicant against the order made by the Employment Tribunal sitting at Stratford that the costs incurred by the respondent in respect of the preparation and conduct of the full merits hearing should be paid to be respondent by the applicant under the Rules of Procedure 12(3)9c) of the Industrial Tribunal Regulations 1993. The issue of costs came before another division of this Appeal Tribunal on 21st July 1999 and on that occasion the appellant was represented by Counsel who referred the court to the decision of the Employment Appeal Tribunal in Omar v Worldwide News Inc [1998] IRLR 291 . His Honour Judge Peter Clark observed that the skeleton argument on behalf of the appellant took only one point arising out of the original grounds, that is ground 10, which was the appeal against the costs order and he noted that Ms Gilmore submitted that on the face of the tribunal's reasons no enquiry was made into the appellant's means before the costs order was made. Those costs had now been taxed and that tribunal was told that they came to nearly £14,000.[2]Judge Peter Clark expressed the view of the tribunal on the preliminary hearing that the costs appeal arising out of the substantive decision is a point which ought to proceed to a full inter partes hearing on the basis, it seems from the rest of the judgment, that before that order was made there had been no enquiry into the appellant's means. The other part of the costs appeal relating to the review costs was dismissed by Judge Peter Clark on the basis that there had been some knowledge about the appellant's means before that order, which was a separate one, had been made.[3]Today, this tribunal had been assisted by the presence of Mr Lane on behalf of the respondents to the appeal. We have had no skeleton argument in support of the appellant's case and the appellant himself has not appeared. There is no explanation for that non-appearance. We have, however, been given several facsimile bundles from America originating from somebody called John England who claims to represent the appellant. We have considered that correspondence exhaustively before coming to our decision. We have reached that conclusion after hearing what Mr Lane has had to say in the context of the other documents. In particular we note that since Judge Peter Clark gave judgment on the preliminary hearing the President has given judgment on behalf of another division of this Appeal Tribunal in the case of Beynon v Scadden [1999] IRLR 700 . That case deals with the matter of costs. In that case an award of costs was made against the applicants who had been represented by their union, the chairman having found that although the union was either aware or, by making proper inquiries, could have been aware that the claims had no reasonable prospect of success, they had continued to pursue them not only for their own sake but with the collateral object of attempting to force the employers to recognise the union. The chairman had concluded that that was both vexatious and unreasonable conduct and an abuse of the tribunal process. The order for costs against the applicants was stated to take into account the means of the union. The Appeal Tribunal in the Beynon case found that the chairman had not erred in taking the means of the union into account in making the order for costs against the applicants. The Appeal Tribunal also found that, contrary to the view expressed in Omar , there is no requirement that a tribunal must look at an applicant's personal means before making an order for costs against him. Indeed, the Appeal Tribunal found that the decision of the EAT in Omar (that only in exceptional circumstances should a tribunal consider the means of the party's trade union in making an order for costs) could not be agreed with. That would place an unjustified fetter on the tribunal's discretion to award costs which the unrestricted terms in which it is conferred under the rules does not permit. In particular, we note, that at paragraph 26 of his judgment on behalf of the EAT, the President said: "… Mr Galbraith-Marten argued that there can be no order for costs in an employment tribunal made against an individual applicant without fault being found in that applicant as opposed to fault in his or her advisers or representatives. Under rule 12(1) it is 'a party' that has to have acted as there described. There are three answers to that. Firstly, there is nothing inherently unjust in identifying parties with their advisers for the purposes of costs and in not necessarily separating the conduct of one from that of the other. Whilst it is not invariably done, it is common for courts not to separate parties from advisers but to leave one with the possibility of exploring its remedies against the other. Secondly, there are sound practical reasons for that; were the separate conduct of the parties and their advisers to be investigated hearings would inevitably be prolonged, conflicts between the parties and their advisers would be likely to appear, their own separate representation would become necessary and legal professional privilege would often need to be waived if a fair conclusions was to be arrived at. Thirdly, rule 12 does not in terms require such separation between a party and his, her or its representatives. As the identification of principal with agent and of party with representative is common both, generally and in relation to costs and litigation, the words 'a party' in the opening words of rule 12(1) must, at least in relation to an evaluation of conduct in the bringing and conducting of proceedings, include the conduct of representatives. It would be absurd if a party's representative could, for example, conduct proceedings abusively or disruptively or could require costly adjournments to suit his or her convenience and yet leave 'the party' immune to an order for costs on the ground that it was not 'the party' himself who had so behaved. …" and other examples followed.[4]It is therefore clear that since the decision on the preliminary hearing was given a second line of authority has emerged and in our judgment had that decision in Beynon been available to Judge Peter Clark, it is unlikely that he would have ruled as he did However that may be, taking account of the facts of the case before us, we prefer to follow the Beynon line because the Omar facts are not present and because we have particularly in mind what the Chairman of the tribunal said when dealing with the matter of costs:
"33 … In the submission of the Respondent the Applicant's complaints were with one or two minor exceptions, completely misconceived. Furthermore, it was submitted on behalf of the Respondent that the case had been conducted unreasonably from the outset, in as much as a vast amount of time had been taken up in the course of detailed and unreasonable correspondence that had been generated on Mr Lilburne-Byford's behalf by Mr Ablett. 34 Furthermore, in the course of the hearing Mr Ablett had wasted several hours of the Tribunal's time by going into irrelevant issues and ignoring, on a regular basis, all warnings that were forthcoming from the Tribunal Chairman with regard to his conduct of Mr Lilburne-Byford's case. 35. The Tribunal agrees with the submissions of the Respondent in so far as the preparation for an conduct of the full merits hearing is concerned and, bearing in mind that Mr Ablett received in excess of ten express warnings as to the way in which he was conducting Mr Lilburne-Byford's case, the Tribunal takes the view that this is a proper case where it should exercise its powers pursuant to Rules of Procedure 12(3)(c) and refer the matter of Respondents costs in respect of the preparation and conduct of the full merits hearing to be taxed accordingly."
We note that on the occasion of the full hearing the appellant was present in person and his case was conducted throughout by Mr Ablett, who is taken, therefore, to have had the authority of the appellant in the way he conducted proceedings.[5]So far as Mr England's facsimile communications are concerned, it is sufficient to say that there is no evidence that he is authorised to act on behalf of the appellant but, in any case, the points which he seeks to make are entirely misconceived in law.[6]Accordingly, we dismiss this appeal against the order made by the tribunal for costs.[7]We have considered Mr Lane's application for costs today, but we take the view that the situation today is particularly different from what it has been on previous occasions. At the preliminary hearing leave was granted for the matter to go forward for full argument. The fact that another decision has become published since then has been to the respondent's advantage, but we do not think that that should be held against the appellant. So we make no order for costs today.