(1) SANTORO GRAPHICS LTD (2) MR D GRANT (3) MR M WHITEHEAD v MISS C C LYNCH [2002] UKEAT 818_02_1712

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 818_02_1712

Case No Appeal No. PA/818/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

(1) SANTORO GRAPHICS LTD (2) MR D GRANT (3) MR M WHITEHEADAPPELLANTS

MISS C C LYNCHRESPONDENT

Before

Mr Justice Burton

Date 17 December 2002

[1]APPEARANCES For the Appellants No appearance or representation by or on behalf of the Appellants For the Respondent No appearance or representation by or on behalf of the Respondent THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is the oral hearing of a challenge by the Appellant, Santoro Graphics Ltd and Others, to a decision by the Registrar, pursuant to Rule 3 of the Employment Appeal Tribunal Rules, that under Rule 3(10) the EAT has no jurisdiction to hear this appeal. The Rule 3 jurisdiction can be applied in a number of different circumstances, but the most obvious one is where the appeal is plainly a question of fact. This Appeal Tribunal has no jurisdiction save in relation to an issue of law.

[2]The Decision of the Employment Tribunal which is sought to be challenged was made on 1 May 2002, and delivered to the parties on 16 May 2002, whereby, by a unanimous decision, the Respondent was ordered to pay the Applicant the costs of 26 April 2002, in the sum of £585 plus VAT, pursuant to Rule 14(4) of the Employment Tribunals Constitution and Rules of Procedure Regulations 2001. Various other Orders were made relating to the further hearing of the application brought before the Tribunal, of which it had been intended that 26 April would be the occasion.

[3]The Notice of Appeal, which was put in in time, was based on the grounds that a decision to award costs was wrong, as the problems with the listing dates had been created by the Tribunal itself. Notwithstanding notice of this oral hearing, and representation of the Appellant by a firm of consultants, Peninsula Business Services Ltd, who are not unfamiliar with the necessary procedures before this Tribunal, no one appears today. It was at the instance of Business Peninsula Business Services Ltd that the challenge to the Rule 3 Decision by the Registrar was made, and by a letter dated 5 September 2002, the Registrar wrote to Peninsula Business Services Ltd, indicating that she considered their letter to be an objection lodged under Rule 3(10).

[4]The letter she referred to was their letter dated 29 July 2002, in which they said as follows:

"We have noted your comments about errors in "

Law". We do feel that the Tribunal did err in law in that they did not take into consideration the "Incompetence" of the Tribunal at Leeds in terms of the administration of the case." As recently as last Friday, the Registrar was in contact with a Mr Reed of Peninsula, who indicated then an intention to attend today, but no one has attended, and investigation further, by telephone today at the offices of Peninsula Business Services Ltd, has led us to understand that Mr Reed is expected in the office today, but not at this Tribunal. In any event, even had he attended, there is nothing further that he could have added by way of elaboration of the point which he made, which was made by Peninsula in the letter of 29 July, so far as I can see, because the issue is one in very small compass, and can be addressed by reference to the decision of the Employment Tribunal itself.

[5]The nub of the conclusion by the Employment Tribunal is contained in paragraph 4, which reads as follows:

"The Tribunal made an order for costs against the three respondents (jointly and severally) on the sum of £585 plus VAT on the basis that the respondents, despite any administrative error by the tribunal offices to list the matter for hearing in April/May 2002, knew on 19 April 2002 that the application for an adjournment had been refused and knew again on 23 April 2002. Despite this they made no attempt to clarify the second respondent's position - the tribunal had no evidence before them, other than an assertion for the respondent's representative, that the second respondent could not on any account attend the hearing. There was not even any evidence that he, (second respondent) had made an attempt to make himself available for the hearing. The first and third respondent had taken it upon themselves to rely on the second respondent's claimed unavailability not to attend the hearing on 26 April 2002. It appeared to the tribunal that the respondents had simply decided to take no notice of the tribunal's order because it simply did not suit their convenience. The applicant and her witnesses had made themselves available and were ready to proceed."

[6]The issue that the Tribunal was thus deciding was costs as between the Applicant and the Respondents. As between the various parties, the Tribunal did not ascribe, nor were apparently invited to ascribe, any blame to the Applicant who, together with her witnesses, had made herself available for the Tribunal; and, as between the Applicant and the Respondents, it appears that the Tribunal was able to conclude that the Respondents' unavailability for the hearing, taking, as they put it, no notice that the Tribunal's Order fixing the date, was a matter which merited that the Applicant should have her costs paid. The Tribunal appears to have had fully in mind the case put forward by the Respondents that the fault did not lie with them, but rather with the Tribunal's offices.

[7]In the Tribunal's Decision, it would seem that that matter was fully taken into account by the Chairman. However, even if it were not the case that it was fully taken into account so far as the Respondent is concerned, nothing in it appears to even begin to relate to some kind of factual challenge to the right of the Applicant to recover her costs in relation to the hearing. There might be some ground, I know not whether even the facility exists, for some kind of application by the Appellants to the Employment Tribunal offices for some kind of reimbursement of costs, if, indeed, as is now asserted in the Notice of Appeal, the whole problem had arisen as a result of incompetence by the Tribunal's offices. But the finding by the Tribunal in its Decision, to which I have written, is that, irrespective of any incompetence or failure or administrative error by the Tribunal offices, the Respondents, as against the Applicant, were to blame, and I have recited the part of the Decision in which that conclusion is set out.

[8]I have no doubt at all that all this is a matter of fact, and discretion based on fact, and there is no ground at all upon which this Appeal Tribunal could or should interfere. I am entirely satisfied therefore that this is a case where the appeal was properly dismissed under Rule 3, and I confirm the Registrar's Order to that effect.