MR J ROBERTS v NATIONAL UNION OF JOURNALISTS [2001] UKEAT 1158_01_1812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1158_01_1812Case No Appeal No. EAT/1158/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J ROBERTSAPPELLANTNATIONAL UNION OF JOURNALISTSRESPONDENT
Before
His Honour Judge Peter ClarkDate 18 December 2001
[1]APPEARANCES For the Appellant NO APPEARANCE NOR REPRESENTATION ON BEHALF OF THE APPELLANT For the Respondent MR J GALBRAITH-MARTEN (Of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW JUDGE PETER CLARK On 28 September 2001 this appeal, brought by the Appellant Mr Roberts against an interlocutory order made by an Employment Tribunal Chairman on 26 September, refusing his application for a postponement of the substantive hearing of his case, brought against the Respondent trade union, fixed for 5 days commencing on 1 October, came on for hearing before me. The Respondent was represented by solicitor and counsel, Mr Galbraith-Marten.[2]The Appellant did not attend the hearing and his appeal was dismissed for the reasons which I gave in a judgment sent to the parties on 4 October.[3]Mr Galbraith-Marten made an application for Respondent's costs in the appeal. I declined to make any order that day, but directed that the Appellant file a detailed statement of means and the Respondent file an itemised schedule of costs within 28 days.[4]Neither party applied with those directions and on 27 November I made an unless order, requiring compliance within 7 days.[5]On 4 December the Respondents solicitors lodged a costs schedule totalling £744.17. On 7 December the Appellant wrote:
"I trust you have made Judge Clark aware of the outstanding Court of Appeal proceedings. You may also make him aware that I have no income or savings so any costs award he may make in relation to the extraordinarily improper and irregular hearing on 28 September (a hearing of which I was given NO NOTICE, and which proceeded in my absence, again) will be left utterly futile."
[6]That is not an affidavit of means, or any statement of his income and expenditure. This appeal was hopeless and both unnecessary and vexations within the hearing of rule 34(1) of the EAT Rules 1993. The principle in Employment Tribunals that it is not an improper exercise of discretion to award costs without taking into account of party's ability to pay, see Beynon v Scadden [1999] IRLR 700 , applies equally to the EAT, particularly where, as here, the Appellant has been given the opportunity to file an affidavit of means but has failed to do so. The mere fact that a party is penniless is not necessarily a sufficient ground for not making an order for costs. Wiggins Alloy v Jenkins [1981] IRLR 275.[7]In all the circumstances I am quite satisfied that the Respondent is entitled to an order for costs. I have considered the schedule lodged by the Respondent's solicitors, which seems to me to be eminently reasonable. Accordingly I shall order the Appellant to pay the Respondent's costs in this appeal, assessed at £744.17, inclusive of VAT, payable within 14 days.