MRS C L NEWTON v ALCOHOL EAST [2002] UKEAT 707_01_1302

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 707_01_1302Case No Appeal No. EAT/707/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C L NEWTONAPPELLANTALCOHOL EASTRESPONDENT
Before
His Honour Judge WilkieDate 13 February 2002
[1]APPEARANCES For the Appellant MR MASAYUKI NEGISHI (Representative) Instructed By: Free Representation Unit 4th Floor Peer House 8-14 Verulam Street London WC1X 8LZ For the Respondent MS JULIE BANN (Legal Adviser) Interchange Legal Advisory Service InterChange Studios Hampstead Town Hall Centre 213 Haverstock Hill London NW3 4QP JUDGE WILKIE QC: This is an appeal by Ms Newton against one element of the decision of the Employment Tribunal held at Stratford on 27 March 2001, which in her absence dismissed her Originating Applications. The aspect of the decision which she appeals is that the tribunal ordered that the applicant paid the respondents', Alcohol East, entire costs to date on the standard basis pursuant to Rule 12(1) and 12(3)(c) of Schedule 1 to the 1993 Regulations, to be subject to detailed assessment, if not agreed.[2]We have been greatly assisted this morning by the submissions of Mr Negishi and Ms Bann, the latter being a legal advisor to Alcohol East, who represented them at the tribunal hearing.[3]Mr Negishi makes essentially three points. The first is that, having regard to the information which was before the tribunal, it was perverse of the tribunal to conclude that Ms Newton's conduct in failing to attend the hearing was of a vexatious nature. He points out, rightly, and that it is a serious finding and a discretion to be sparingly exercised, that before a tribunal can categorise behaviour as vexatious for the purposes of awarding costs, it has generally to be of the view that the conduct involved bad faith. The position which the tribunal confronted on 27 March 2001 was that there had been a date for hearing duly sent to the parties, sent to those whom the tribunal office thought were representing Ms Newton. The respondent, which is a publicly funded charity, attended with representation and three witnesses and a bundle of documents which they had prepared. The applicant did not attend. Furthermore, the tribunal was unable to make any contact with her or anybody acting on her behalf, by telephoning any of the telephone numbers that were disclosed on the file. The legal representative of the charity was able to inform the tribunal that early that morning ACAS had contacted them, stating that the applicant was attempting to negotiate a settlement and thought that the day's hearing had been adjourned. That was the first contact that the respondent had had from ACAS, there having been no history of any negotiations having taken place.[4]It is right to say that, following upon the sending of the decision to the parties on 3 April, Ms Newton wrote a letter of 7 April, which contains a great deal of material with which the respondent take issue, but it certainly does confirm that she was well aware of the hearing date and that ACAS represented the position to the respondents accurately and the respondents represented that position to the tribunal accurately.[5]Thus, this is not a case where the applicant was being let down by her representative in the sense that she had not been told of the hearing date, rather it was a case where she had deliberately not attended the hearing on that date, having at the last minute attempted to contact ACAS to negotiate a settlement, not having been informed by ACAS that she was not required to attend and having failed in any way to make herself available to the tribunal or to contact the tribunal on the day and the consequence of which the respondent attended fully prepared for a hearing which, as it turned out, was unnecessary. In our judgment, it cannot be said that this tribunal was perverse in categorising that behaviour as vexatious and therefore we do not accede to Mr Negishi's appeal on that point.[6]However, the second and third points are linked and are to do with the amount of the costs and the basis of the award of costs. In paragraph 17 of the decision the tribunal records Ms Bann as making a submission that:
"… from the outset this Applicant has sought to cause a maximum degree of inconvenience and expense to the Respondents and this has culminated in the conduct that has been inflicted upon the Respondents today."
[7]It was on that basis that the tribunal took the view that Ms Newton should pay the entirety of the costs incurred by the respondents. Ms Bann accepts, both in her written skeleton and orally today, that the tribunal has misunderstood what she was saying. She was not saying that, from the outset, there had been a campaign by Ms Newton to maximum their inconvenience and expense, rather her complaint was about the failure to attend on the day of the hearing and the vexatious nature of that particular conduct.[8]It seems to us therefore, that the tribunal erred in that it misunderstood the nature of the facts that were being presented to them in this respect. The vexatious behaviour focused on the failure to attend and the costs thereby incurred by the respondents in both attending and in preparing for the attendance at the hearing on 27 March and therefore, the only part of the costs which are properly to be the subject of an award of costs, would be that element. Furthermore, in paragraph 17 the tribunal had said that:
"… because the Respondents are a charity, the only appropriate order to be made is that under Rule of Procedure 12(3)(c). The Respondents' costs are well in excess of £500 and given the current rate of remuneration that the Applicant is receiving from the St Botolphs Alcohol Project, this is an appropriate order that can be made."
[9]Whilst it is right to say that the tribunal was entitled to have regard to the ability of the applicant to pay, it is said that it was wrong in law in regarding the charitable status of the respondents as being a significant element in determining which of the three bases for awarding costs should be adopted.[10]It is, of course, right to say that their status is important in determining the vexatiousness of the applicant's conduct but we tend to agree with Mr Negishi that it may well be that the tribunal has overreached itself in apparently making the respondents' status a causative element in the nature of the award made. Moreover, and in any event, having obtained information from Ms Bann it is clear to us that the costs of the respondents attributable to their attendance on the day and preparation for the hearing are of the order of £500, when one takes into account the VAT, and therefore we are minded to uphold Ms Newton's appeal to the extent that we will substitute for the tribunal's decision an order that she pay a contribution of £500 towards the respondents' costs, that being an order made under Rule 12(3)(a) and to that extent this appeal succeeds.