MR MOHAN PAWAR v SUPERIOR FOODS LIMITED [2002] UKEAT 0341_02_1811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0341_02_1811Case No Appeal No. EAT/0341/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR MOHAN PAWARAPPELLANTSUPERIOR FOODS LIMITEDRESPONDENT
Before
Mr Justice BurtonDate 18 November 2002
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This was to be the hearing of an appeal by Mr Pawar, but upon withdrawal of his appeal is now an application for costs by the Respondent.[2]Mr Pawar appealed against the decision of the Employment Tribunal sitting in Watford on 12 & 13 December 2001; the outcome of which was that there was a finding of unfair dismissal but with substantial deductions on grounds that the Tribunal was satisfied that the Applicant would be likely to have been dismissed in any event and, further, that he contributed to his own dismissal.[3]The outcome was that the sum for which he was entitled under the award was £498.45. The challenge to the appeal was to the issue of 50% contribution, so that the most he could have achieved by success in the appeal was to that extent, thus doubling the amount that he had previously received to a sum a little under £1000. Permission was given to proceed with that appeal by Mr Recorder Langstaff QC and a panel of this Tribunal on 12 July 2002.[4]The Respondent concluded that the Appellant ought to appreciate not only that he did not have a great chance of success but also that the costs of pursuing the appeal on both sides were disproportionate.[5]They wrote a letter to Southall Rights, who have at all material time been acting on behalf of the Appellant, dated 31 July 2002, which was without prejudice save as to costs.[6]After setting out their arguments as to why they concluded the Appellant should not proceed, and why they had advised their client (the Respondent) that should the matter proceed to the Employment Appeal Tribunal they would seek an order to recover costs from the Appellant, the solicitors for the Respondent made a without prejudice save as to costs offer that if the Appellant was willing to withdraw his appeal voluntarily the Respondent would agree to the withdrawal of the appeal, and would not seek to recover any legal costs from him. There was, regrettably, no reply at all to that letter of 31 July by Southall Rights.[7]A follow-up letter was sent on 3 October 2002 by the Respondent's solicitors, in which they indicated that they had now been served by the EAT with a copy of the Appellant's Notice of Appeal. They asked for a response to the without prejudice offer contained in their letter of 31 July 2002 and reminded Southall Rights of the arguments, and in particular of the risk of the Appellant as to costs, which the Respondents indicated they would or might be seeking. There was, regrettably, once again, no reply to that letter.[8]It seems that there was then a letter of 11 October 2002 to the Employment Appeal Tribunal, by the Respondent's solicitors, who had not heard, of course, from the Appellant, saying that they wished to oppose the Appellant's appeal. They enclosed a copy of Form 3 but indicated that, while the Respondent was opposing the appeal, in view of the small sums of money involved, it was not commercially viable for them to instruct Counsel to attend the EAT hearing on their behalf; but they confirmed that a Skeleton Argument would be provided to the EAT no less than 7 days prior to the hearing, once the confirmation of that hearing date was received.[9]That is obviously an extremely sensible approach by the Respondents, given the lack of proportionality involved in relation to this appeal; but they did promise to supply a Skeleton Argument so that this Tribunal would be fully informed when the matter came on.[10]They did indeed comply with that obligation and promise by serving a Skeleton Argument on 4 November. They had thus expended some considerable costs. In relation to this appeal, it appears from what we have now been told that the total amount of costs that the Respondents had incurred in relation to the appeal is a little under £1500.[11]By letter dated 14 November 2002 Southall Rights sent a letter to the Tribunal which read:
"Further to our telephone conversation we write to confirm that the Appellant's appeal is being withdrawn. Please confirm that it has been taken out of the list for the hearing on Monday 18 November."
[12]This was last Thursday. The response of the Respondent's solicitors, not unnaturally, has been to complain that their earlier without prejudice offer save as to costs, which of course now becomes admissible before us, given the abandonment of the appeal and the only issue remaining being costs, had been so cavalierly disregarded; and, by letter to this court, they submitted that on the dismissal of the appeal, which of course occurs today, we should award the costs to the Respondent on the basis that the appeal was unreasonable.[13]It appears, from a letter received today from the Respondent's solicitors, that the figures can be broken down so that some £500 or £600 was incurred prior to the end of July and the balance since then. It is clear that the bulk of the costs for the Respondents has been incurred in relation to the preparation of the Skeleton Argument.[14]It seems from the letter that they wrote to Southall Rights as recently as 13 November indicating that the offer without prejudice save as to costs would remain open until 12.00pm on last Thursday. However, that last offer was not accepted.[15]There is a letter which we have seen from Southall Rights of 14 November saying:
"We are in receipt of your fax, informing us that you have been instructed to apply for costs. We only withdraw the appeal on the basis that you will not be taking issue on the question of costs. We refer you to your letter dated 13 November 2002. If you are still minded to pursue the costs issue, we advise the EAT that the appeal should go ahead. Please let us have your response by 6pm today."
[16]The Appellant has not advised the EAT that the appeal should go ahead, as is said in that letter, which we only saw for the first time today, and indeed the appeal is listed today only for an application for costs on the withdrawal of the appeal, which was unconditionally withdrawn last Thursday as we have recited.[17]The Respondent's solicitors indicate that the Appellant's representative from Southall Rights did not contact them until 3.00pm on Thursday 14 November; 3 hours after the offer had lapsed. They remind the EAT in their letter of 15 November, received today, that the Appellant unconditionally withdrew the appeal on 14 November and that they wrote to the Tribunal on that day confirming that the Respondent consented to the withdrawal of the appeal, subject to the EAT dealing with the issue of costs. That is therefore the only outstanding matter before us today.[18]We recognise the difficulties under which bodies such as Southall Rights labour, and we recognise the good will and the charitable and philanthropic context in which those such as Mr Bhogal. Mr Shingadia, Miss Ajani and Ms Bracket (who are named as the particular identified parties on the Southall Rights note paper), work. However, they are carrying out litigation in which there are other parties involved apart from themselves and their client.[19]One such party is the Respondent, which in this case acted extremely sensibly in doing its best at all times to cut back on the amount of costs being incurred by everybody, and in particular as long ago as last July offered to participate in an abandonment of the appeal on their order as to costs, which offer was completely ignored.[20]The other party is the court. If that offer had been taken up at any time prior to last Thursday, when the appeal was unconditionally abandoned, the case would not have been listed, as it had been at all times until Thursday, and now for costs only, and another case would have been entered in the list today and been dealt with, which is otherwise having to wait its turn, and so other parties are inconvenienced by the fact that, quite unnecessarily, a half-day appeal, which was listed for today, has come out of the list at the last minute which could have come out long ago.[21]We welcome, of course, all compromises – we are here to assist in compromise – but, where, as is here the case, it is obvious that the compromise could and should have taken place months ago, it is at that stage that the fact that part of a day is wasted, to the detriment of other parties, must come into play.[22]Therefore, we do urge Southall Rights and other Appellants similar to this Appellant who has these kinds of offers, to treat them sensibly. Of course if they are to be rejected then they can and should be rejected, and a failure to reply to such an offer would only be a matter of discourtesy, but where they are to be accepted then they should be accepted at an early stage and not at the 23 rd hour.[23]In those circumstances we are not prepared to conclude that the whole appeal was unreasonable, as the Respondents urge upon us. We think that it was perhaps a fortunate obtaining of permission on 12 July, and that the case never had a great chance of success; but nevertheless this Tribunal has given such permission and against that background it is always difficult for a Respondent, albeit a Respondent who was not present at the Preliminary Hearing, and had no opportunity to put in submissions, to succeed in an argument that the appeal should never have been pursued. But what we do conclude is that it has been unreasonable of the Appellant and his advisers not to respond and act upon the sensible offer made as long ago as 31 July.[24]We note that the Respondent was prepared to leave open its offer until as late as Thursday lunchtime, but even that last benevolent attempt was not taken up within the deadline and, looking at this overall, we conclude that the real mischief was the fact that there was expenditure on a Skeleton Argument by the Respondent, in its endeavour to comply with its obligation to assist a court, when that work was completely unnecessary and they should have been told so weeks earlier.[25]We conclude, balancing the attempt to be fair to the Appellant and to the hard-worked people at Southall Rights, while also protecting the Respondent and sending out a signal to those such as Southall Rights that they really must respond to this kind of suggestion in their own interest, their client's interest, but also the interests of the other party and the court, that a fair sum to award, in respect of the Respondents' costs, is the sum of £500, which will be payable by the Appellant. If the award has not been paid that will be set off against the award.[26]I have just been handed a letter from Southall Rights of 18 November, which I will inspect. It is regrettable that, yet again, there is further delay caused by them but it is necessary for us to read it to see whether it affects the view we have just taken.[27]We will deliver a short supplement to the judgment. It is now 11.05am on 18 November. We have just received, after I gave judgment, or at any rate I believe it was delivered in the course of our judgment, a letter dated 18 November 2002 from Southall Rights, addressed to the listing office.[28]The content of this letter does not cause us to change the judgment that we have just given. It sets out that Mr Bhogal of Southall Rights, according to him (of course we have no knowledge as to whether this is in issue with the Respondent's solicitors, who have not had any opportunity to comment upon this letter) did telephone the Respondent's solicitors on receipt of the letter dated 31 July 2002. It appears to clarify certain points in relation to the matter but they did not respond to the letter as previously discussed, in writing, or to the offer. They did not accept the offer in writing, nor did they respond to the subsequent follow-up letter of 3 October. Therefore the position, so far as not responding, albeit any discourtesy is to an extent alleviated, remains exactly as described by us in the course of our judgment.[29]The other point that Mr Bhogal makes in his letter is that, on receipt of the letter of 13 November from the Respondent's solicitors, Mr Bhogal telephoned the Respondent's solicitors and informed them that the Appellant would be in difficulty in meeting the Respondent's deadline, as he was working and it was highly unlikely that his instructions could be obtained in time. Of course, any shortage of time at that stage was caused by the fact that no response had been given to the letter four months earlier.[30]The Respondent's solicitor did not extend the time period on the offer, which already, as we have indicated, was a generous offer to keep the matter open for a short further period. Mr Bhogal says that he understood he had some leeway but he plainly did not, given that there had been no extension of the offer.[31]Mr Bhogal then indicates that he contacted the Tribunal at 2.45 on 14 November to withdraw the appeal on the basis that the Respondents' offer still remained open:(1) He did not withdraw the appeal on that basis; his withdrawal, as we have recited, was unconditional;(2) He had not at that stage even sought to contact the Respondent to accept the offer; and(3) In any event, the offer was no longer at that stage open, the unextended time period having expired.[32]In those circumstances there is nothing fresh by way of facts which causes us to change our minds and in any event we had already allowed for an element of fairness and allowance for some argument on the part of the Appellant by reducing the figure sought by the Respondents to the much lesser sum of £500.[33]The arguments that have been set out by Mr Bhogal at the end of his letter are arguments with which we have already dealt anticipatorily or in these few additional words, and we are not persuaded by them. Consequently, we confirm the judgment that we have just made.