BRADFORD BULLS HOLDINGS LTD v MS J MAXWELL [2001] UKEAT 1231_01_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1231_01_1910Case No Appeal No. EAT/1231/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BRADFORD BULLS HOLDINGS LTDAPPELLANTMS J MAXWELLRESPONDENT
Before
His Honour Judge Peter Clark Mrs R A Vickers Mr G H WrightDate 19 October 2001
[1]APPEARANCES For the Appellant C QUINN (Of Counsel) Instructed by Messrs Walker Morris Solicitors Kings Court 12 King Street Leeds LS1 2HL For the Respondent J LADDIE (Of Counsel) Instructed by Messrs Taylor Walton Solicitors 28-44 Alma Street Luton Beds LU1 2PL JUDGE PETER CLARK This matter comes before us on the question of costs only, the Appellant Company having now withdrawn its interlocutory appeal against the direction given by a chairman, Mr Peter Hildebrand, sitting alone at Leeds on 23 August 2001, not to list preliminary issues for hearing before the substantive hearing of the Applicant, Miss Maxwell's complaint of unfair dismissal.[2]By way of background, the Applicant presented her complaint of unfair dismissal to the Employment Tribunal in March 2001. It is her case that she was dismissed by the Company for making a public interest disclosure. The claim is resisted.[3]It seems that on 2 occasions the Company applied, by letters dated 18 and 26 July 2001, for certain issues to be listed for preliminary hearing in advance of the substantive hearing of the complaint. Both requests were refused by a chairman, Mr David Latham, respectively on 24 July and 2 August 2001.[4]At the directions hearing before Mr Hildebrand on 23 August the Company, by their solicitor, sought a review of the earlier orders of Mr Latham, refusing to direct a preliminary hearing. Pausing there, those were interlocutory orders, not decisions within regulation 2(2) of the 2001 Regulations (SI 2001/1171), and therefore not susceptible to review under rule 13 of the 2001 Employment Tribunals Rules of Procedure, Schedule 1 to the Regulations.[5]There had been no material change in circumstances since Mr Latham's orders were made, save that on the day preceding the hearing before Mr Hildebrand the Applicant applied for leave to amend her originating application. We have considered that application although it sets out in lawyers' language some of the issues and more detail of the case that was to be advanced before the Employment Tribunal. It seems to us to arise out of the original particulars of complaint set out in the originating application. However we make no final ruling on that matter since one of the orders made by Mr Hildebrand on 23 August was that the question of permission to amend should be adjourned to a further hearing which is due to take place on 7 November. Nothing we say in this judgment should be taken to pre-empt the outcome of that hearing.[6]In those circumstances it seems to us that the order made by Mr Hildebrand was not only a permissible option open to him but it was correct in the sense that there was no material change in circumstances which would enhance the further application for a preliminary hearing advanced on behalf of the Company before that chairman. In this connection we refer to the judgment we have just delivered in the case of Goldman Sachs Services Ltd v Montali (EAT/1203/01). Mr Quinn before us has sought to persuade us that an appeal against Mr Hildebrand's order was far from misconceived by reference to rule 6(1) of the 2001 rules. That provides:
"A Tribunal may at any time before the hearing of an originating application on the application of a party made by notice to the Secretary or of its own motion herein determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates."
[7]We think that the important word in that provision is 'may'. It is a wide discretion given to Employment Tribunals to decide whether or not it is appropriate in the particular case to order a preliminary hearing or not. First Mr Latham then Mr Hildebrand decided that it was not. In our judgment any appeal against Mr Hildebrand's ruling was bound to fail. It was, as Mr Laddie submits, wholly misconceived.[8]Nevertheless that is what the Company did. An appeal was lodged on 12 October to which the Applicant below, Respondent before us, entered a detailed answer settled by Counsel, Mr Solomon, who had appeared at the directions hearing before Mr Hildebrand.[9]Because the substantive hearing of the amendment application is due to take place on 7 November it was necessary to list this appeal as a matter of urgency and it is listed for today.[10]Ironically, the Applicant's solicitors applied for a postponement by fax on the afternoon of 17 October because their Counsel of choice, Mr Solomon, who had appeared below was unavailable. That application was refused by the Registrar and renewed by the Applicant's solicitors before me on paper. Meanwhile the Company's solicitors faxed the Employment Appeal Tribunal on the morning of 18 October opposing an adjournment. I directed that the case should remain in the list and the Company's solicitors then faxed the Employment Appeal Tribunal at 4.10 pm yesterday afternoon, having earlier given this indication by telephone, formally announcing that their appeal was withdraw. Their reasons for the withdrawal were not given although it appears that Mr Quinn of Counsel was instructed on behalf of the Company earlier yesterday. Thereupon the Applicant's side, having instructed Mr Laddie, then asked that the case remain in the list for today to hear and determine her application for costs.[11]Despite Mr Quinn's best endeavours we have no hesitation in saying that this appeal was unnecessary and unreasonable. It ought never to have been brought. Accordingly the power granted to us by rule 34(1) of the EAT Rules is triggered.[12]The real question it seems to us is what order for costs ought we to make. In support of the application there is a schedule of costs which breaks down in this way. Solicitors'preparation work in this appeal 7½ hours at £140 per hour and a further item of 1 hour at £110 per hour, presumably worked down by a junior member of the firm. That totals £1160 excluding VAT. In addition, by way of disbursements there are items of Counsel's fees, first Mr Solomon who settled the Respondent's answer to this appeal and spoke to his solicitor on the telephone and finally Mr Laddie who was instructed in the appeal in the absence of Mr Solomon and who has prepared a skeleton argument and appeared before us today. The total there is a further £800 plus VAT.[13]We first consider that bill of costs. In our judgment it is excessive for the work necessary to conduct this appeal on behalf of the Applicant. Doing the best we can we think that the solicitors' charges should be cut down to 3 hours at £140 per hour that is £420 and a further hour at £110 making a total of £530 plus VAT. So far as Counsel's fees are concerned we reduce the fees for Mr Solomon to £200 but we think that the fee for Mr Laddie is wholly merited.[14]That makes a total by our calculation £1230 plus VAT. However, that is not quite the end of the matter. Mr Quinn firmly submits that it would be wrong to award the full amount of the costs as we have assessed them in circumstances where, albeit yesterday, the Appellant withdrew the appeal. To say otherwise would be to discourage the Appellant from that very proper course. Mr Laddie on the other hand points out that effectively the costs of defending the appeal have all been incurred and it would be wrong to allow any discount at all.[15]We think that there is force in Mr Quinn's submission, although the discount necessarily must be small, because this is a case where we have found that it was unnecessary to institute the appeal at all. Again doing the best we can the final order we make is of £1000 cost to be paid by the Company to the Applicant in this appeal, together with VAT, making a total of £1175.