MR A WIGGLESWORTH v DCFO K SEAGER [2003] UKEAT 0019_03_2506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0019_03_2506Case No Appeal No. EAT/0019/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A WIGGLESWORTHAPPELLANTDCFO K SEAGERRESPONDENT
Before
His Honour Judge D M LevyDate 25 June 2003
[1]APPEARANCES For the Appellant No Appearance or Representation By or on Behalf of the Appellant HIS HONOUR JUDGE D M LEVY QC We have in our list for hearing today an application by Mr A D Wigglesworth BSC MBA GIRE ("the Appellant"). How it comes to us is slightly unclear. It is apparent from the papers we have that there have been a number of decisions of the Employment Tribunal in matters concerning the Appellant and one of them led to a Notice of Appeal dated 22 October 2002 which is found at page 5c of our bundle, the Appellant was appealing from the reserved decision of the Employment Tribunal held at Bury St Edmunds on 12 September and promulgated on 17 September. The Appellant alleges the decision of the Tribunal in making an award of costs against him was perverse.[2]The grounds of appeal were, briefly, that:
"…the Appellant has made it known to the Employment Tribunal, by way of appeal to the EAT, that he has serious objections to the prior made provisional costs order 12 th June 2002. The Employment Tribunal were informed of the appeal which was made due to serious objections. Accordingly the reserved decision made 12 th September 2002 and promulgated 17 th September 2002 was made without affording the opportunity to pursue his objections before the Employment Tribunal."
[3]There was a decision of this Tribunal sealed on 14 January 2003 which appears on page 29 of our bundle, where Elias J made an order dated 23 December 2002 that the appeal should be set down for Preliminary Hearing in accordance with paragraph 9 (7) at which the Appellant would be heard ex parte . Various directions for that hearing were given.[4]It appears further that there was a Preliminary Hearing before Judge Pugsley. There had earlier been a Preliminary Hearing before Judge Pugsley where, unusually in a Preliminary Hearing, he gave reserved a decision which was sent to the parties on 27 January 2003. That seems to have dealt conclusively with the matters which were in the Notice of Appeal we have referred to and in the matter which Elias J said puzzled him.[5]We have had a manuscript letter from the Appellant saying he would not be attending the hearing today for several reasons. First, he said it was completely unreasonable to give him only 22 days of notice of the hearing and other commitments made it impossible for him to attend. Second, he said a Preliminary Hearing had already taken place on 7 March. His oral argument was fully tested and rested at that hearing. In essence he said:
"…I direct the Tribunal sitting on 25 th June 2003 to that oral presentation and the recording made of it."
He goes on to say, further down, that the sum of £6,000 which he was ordered to pay was perverse because such a sum was essentially a too high and disproportionate order made by the Tribunal.[6]That is something which is dealt with in paragraph 9 of the decision of this Tribunal in the judgment of Pugsley J, to which we have already referred, which reads as follows:
" The issue of the Quantum of Costs 9 The Tribunal went on to make a provisional assessment (of costs) that the Applicant pay the sum of £9,445 in respect of costs. The Tribunal were clearly troubled by the decision of Kovacs -v- Queen Mary Westfield College and Another [2002] IRLR 414 and the extent to which that placed a fetter on their discretion. The Tribunal reached their conclusion without enthusiasm and were clearly troubled that they were awarding a figure for costs that seemed to them disproportionate and they felt that the sum of £6000 was more appropriate. However as they made clear in their reasoning at paragraph 23 of their decision, on a proper analysis this feeling was no more than taking into account the Applicant's means which they felt precluded from doing by virtue of the Kovacs decision. 10 However, the grounds of appeal seem to be based on the premise that the Tribunal had never identified the point at which the Applicant had crossed the threshold of unreasonable behaviour and that it had never been suggested that the Applicant did not have a genuine claim. That contention is wholly at variance with the express findings of the Tribunal which are set out at paragraph 19 of the costs assessment decision and in paragraph 54 of their decision in which they made the primary finding that the Applicant should pay costs. The Tribunal clearly concluded that these proceedings were misconceived. 11 We have come to the conclusion that no issues of law are raised on the assessment of costs and we therefore dismiss this Appeal."
[7]It seems to us that in the light of that decision it is not open to us to say any more on this appeal. If the Appellant was dissatisfied with the decision of the earlier Tribunal headed by Pugsley J he should have taken the matter by now to the Court of Appeal.[8]We have read the Respondent's submissions dated 29 January 2003 written in answer to the order of Elias J. The Respondent says that the appeal is misconceived and an abuse of process in the light of the judgment of Pugsley J. In our judgment those submissions are correct.[9]Insofar as this appeal is before us and for the reasons given, we dismiss it.