LANWARE LTD v MR S PAINTER [2002] UKEAT 122_01_3001

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 122_01_3001Case No Appeal No.PA/122/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LANWARE LTDAPPELLANTMR S PAINTERRESPONDENT
Before
Mr Justice LindsayDate 30 January 2002
[1]APPEARANCES For the Appellant MR CASSIDY (Representative) Lanware Ltd 69 South Lambeth Road London SW8 IRL For the Respondent MR ALAN PAYNE (of Counsel) Instructed by: BBW Solicitors 216 Tower Bridge Road London SE1 2UP MR JUSTICE LINDSAY (PRESIDENT) I have already given a judgment in which this is an epilogue, and now Mr Payne, on behalf of Mr Painter, makes an application for costs. Just touching on what was in front of me, I indicated in my earlier judgment that I thought in fairness to the company, notwithstanding that Mr Cassidy has said more than once that he was not appealing against the Registrar's Order, that it was fair to the company to treat what was in front of me as such an appeal.[2]Shortly after the Registrar's Order of 21 May, the company wrote a letter of 5 June, written by Mr King; it is not amongst the clearest of letters. He says:
"I am in receipt of two letters, the 1 st dated 22 May 01 in which you include a sealed copy of the Order saying payment should be made to Mr Painter and your letter of 23 May 01 enclosing a sealed copy of the Order allowing an appeal to go forward. Since receipt of these conflicting Orders we have tried to get in contact with your office but no one has come back to us. Mr C Cassidy is the only person who can make such an Appeal" [And I emphasis the word "
Appeal"] " but he is not back in this country until 18 th June and has yet to see these letters. Please be advised, as soon as he is back we will bring this matter to his attention and an Appeal will be sent to you." And that was responded to on 6 July by the Employment Appeal Tribunal saying, inter alia :
"The Registrar does not consider that the contents of your letter dated 25 May 2001 are clear but in the circumstances is treating it as an appeal in time from the Order dated 21 May 2001 in which an application for an extension of time in which to appeal was refused. The appeal from the Order will now be set down for a hearing before a Judge and the parties will be informed of the hearing date in due course."
[3]It is quite common, although perhaps regrettable, that parties who are acting for themselves put in applications that are unclear and it is quite common for the Employment Appeal Tribunal to treat them as generously as they can and I see no fault in the Employment Appeal Tribunal indicating, after the confusing letter of 5 June, that it was to be treated as an appeal, in time, against the Order of 21 May. It has to be noted that the company did not, thereafter, respond, saying: "No, there is no appeal intended against the Registrar's Order" or saying that the appeal did not need to be listed or anything of that nature and, indeed, nothing further occurred until Mr Cassidy indicated, orally, this morning before me, that he did not wish to appeal against the Registrar's Order. It seems to me entirely right that the matter should have been listed as an appeal against the Registrar's refusal and if that is an error of law, then Mr Cassidy must either ask me or the Court of Appeal for leave to appeal to the Court of Appeal.[4]On the footing that there is before me, or has been, an application by way of appeal against the Registrar's Order, then it is that which is the subject of Mr Payne's application for costs. Mr Payne draws attention to two letters to the company, sent by the solicitors instructing him. These letters also make it plain that there is, in their understanding, something by way of an appeal against the Registrar's Order that is due to be put before the Employment Appeal Tribunal. For example, the first paragraph of the letter of 17 September to the company says:
"We are in receipt from the employment appeal tribunal [of a] notice of hearing of an appeal against the registrars orders. This is due to be heard on the 30 January 2002."
There seems to have been no reaction from the company saying "I do not know what on earth you are talking about, there is no appeal against the Registrar's Order". The letter goes on, from the solicitors:
"It is our view that the application is totally without merit and we write to advise you that if you proceed with the application and it is dismissed then we will be seeking indemnity costs against you in relation to our preparation for and attendance at the hearing. We would invite you now to withdraw the appeal to avoid these further costs being incurred. We will be drawing this letter to the Tribunal's attention at the hearing should you choose to continue with the appeal."
So, plainly, it was being indicated to the company that Mr Painter's side understood that an appeal was going forward.[5]On 7 December, another letter was written by Mr Painter's solicitors, it said:
"We have now heard from the Employment Appeal Tribunal in relation to the preparation of bundles for the hearing on 30 th January 2002. Before we incur any costs in relation to the preparation of this case, we would again, invite you to withdraw your application. At this stage we are still prepared to agree that provided you withdraw your application before the tribunal, we will not seek any costs from you in relation to the application. If however, you insist on proceeding with the application, then we will be seeking an order against …"
In that, obviously, the word "you" was left out or the company has left it out "…… to pay our client's costs on a full indemnity basis. Full details of these costs will be prepared and sent to you before the hearing." Again, it must have been quite plain, on receipt of that by Lanware, that Lanware could see that the Painter side regarded the matter as a matter of an application, properly-so-called, being made before the Employment Appeal Tribunal, and yet, again, it seemed not to have generated, on the company's part, a letter either to Mr Painter's solicitors or to the Employment Appeal Tribunal saying "We do not know what is going on. There is no appeal against the Registrar's Order", or anything of that nature.[6]Then the matter came on today. There is no evidence, properly-so-called, before me from the company. As I mentioned in the earlier judgment, there is nothing from the company's adviser, Mr Danton de Rouffignac, by way of evidence. Mr Cassidy says that that is because he is retired and refuses to take any further part, but there is no evidence, strictly speaking, of that either.[7]The Painter side have produced a schedule of costs and they make application for an Order for costs in their favour. I have cited, in the course of argument, the relevant rule, which is Rule 34 of the Employment Appeal Tribunal Rules.[8]As it seems to me, it is here appropriate that there should be some Order for costs against the company. The company has, in my view, lodged an appeal against the Registrar's Order, and has been treated as having lodged such an appeal. It has put in no evidence whatsoever. Its only ground in argument for an extension of time was totally unsupported by evidence. It had had adequate warnings from the Respondents that it was at risk as to costs, and it had a relatively generous offer made to it that, if it withdrew earlier, no Order for costs would be sought.[9]It seems to me that in the circumstances, no evidence whatsoever having been put in to support the application, one can describe the company's conduct, against the letters that it had received from the Painter solicitors, as representing unreasonable conduct. That is on the footing that there was, indeed, an appeal before me, of the kind I have indicated. If alternatively, the matter was properly to be treated as if there was an abandonment today of any such appeal, then a party which chooses to abandon its application at the last minute, especially against earlier correspondence of the kind that I have read, is in my view, acting unreasonably unless it demonstrates why it did not stop earlier, which was not shown.[10]It seems to me that however one regards today's hearing, there has been unreasonable conduct in conducting the proceedings on the company's part. However, I shall not order the costs in the figure which has been put in front of me by the solicitors to the Respondent. They are, in a sense, incomplete and I think the proper response to the Order for costs is to make an Order that Lanware Ltd pay the costs of Mr Painter of and incidental to the appeal against the refusal of the Registrar, to be fixed by the appropriate officer if not agreed.