MR S A EDWARDS v MARCONI CORPORATION PLC [2003] UKEAT 1115_02_2701

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1115_02_2701

Case No Appeal No. EAT/1115/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S A EDWARDSAPPELLANT

MARCONI CORPORATION PLCRESPONDENT

Before

Mr Justice Burton

Date 27 January 2003

[1]APPEARANCES For the Appellant MR S A EDWARDS THE APPELLANT IN PERSON MR JUSTICE BURTON (PRESIDENT) : This is the hearing of a Rule 3(10) appeal by Mr Edwards. His appeal, which was dismissed by the Registrar, was against a decision of the Tribunal held at London Central on 6 July 2001. On that day, the Tribunal struck out the Appellant's Originating Application, and thus his claim, against the Respondent, Marconi Corporation Plc, and ordered that he pay the Respondent the sum of £500 by way of costs.

[2]The appeal by Mr Edwards, which he has argued courteously and fully on his own behalf, is against both limbs of that order.

[3]Mr Edwards is plainly someone who knows his procedures and, as the Tribunal pointed out, this was not the first claim that he had brought before an Employment Tribunal. He is also, of course, a Magistrate, and thus, not someone who has no knowledge of how courts and tribunals work.

[4]Mr Edwards' claim against the Respondent was for refusal under Sections 50 and 51 of the Employment Rights Act 1996, by the Respondent, to allow him time off work for public duties. By Section 50(1):

"(1) an employer shall permit an employee of his who is a justice of the peace to take time off during the employee's working hours for the purpose of performing any of the duties of his office."

By Section 51(1):

"(1) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by section 50."

[5]The Appellant's case was by reference to a letter dated 18 April 2001. In its Decision the Tribunal refer to this letter, as follows, in paragraph 4:

"The letter dated 18 April 2001 set out the Respondent's proposals for the time off the Applicant would be allowed."

The letter itself is not before me today, but in describing it to me (and in accepting that the Tribunal made correct factual references to it) Mr Edwards himself said that, in the letter, the Respondent did not refuse to let him have time off. He described it as a letter in which, as indeed the Tribunal said, the Respondent set out the basis upon which it would allow him to have time off. In paragraph 12 of its Decision, the Tribunal said this:

"The Tribunal had an opportunity of considering that letter but came to the view the letter was not a refusal of time off work by the Respondent but merely set out the basis on which time off work would be allowed."

[6]In those circumstances it is not surprising that the Respondent made a request for further particulars, and that the Tribunal ordered, on 15 June 2001, that the Appellant give those particulars. In paragraph 10 of the Decision, this order is set out as follows:

"The Tribunal duly made an order dated 15 June 2001 which stated that the Applicant was ordered 'on or before 25 June 2001 to send to the Respondent the following further particulars of the grounds on which he intended to reply', namely 'to give details of dates and personnel and circumstances involved in the refusal to allow you to perform your public duties'."

[7]The Appellant did not give those particulars. He sent a letter, which again is not before this Tribunal, but is, he accepts, correctly recited by the Tribunal in paragraph 11 of its Decision, as follows:

"Further to your request you should read Nigel's letter of 18 April 2001, letter to me, and then the case of Corner v Buckinghamshire County Council , those facts are so similar. (As you are a firm of solicitors I am surprised that you are asking me this)."

[8]The Tribunal concluded, in paragraph 13:

"The Applicant failed to comply with the order which was specific in its terms."

They concluded that the Appellant refused to comply with the order and, consequently, that it was a deliberate breach of the order. They thereby accepted the submissions for the Respondent, which are set out in paragraph 5 of the Decision, that "the Applicant's failure to provide further particulars was a deliberate refusal by someone who sat as a J.P".

[9]The submissions which Mr Edwards made to the Tribunal below are set out in paragraph 6 of the Decision. He relied on Section 50(4) of the Employment Rights Act 1996 . This reads as follows:

"(4) The amount of time off which an employee is to be permitted to take under this section, and the occasions on which and any condition subject to which time off may be so taken, are those that are reasonable in all the circumstances having regard, in particular, to ... ."[and then certain matters are set out in (a), (b) and (c)]. Paragraph 6 continued: "[He] based his claim on Corner v Buckinghamshire CC . He had seen the Tribunal's order and replied by letter dated 17 June 2001. He was not saying he had asked for time off and had been refused. He needed to know how many days he could take off and wanted them to be paid. He did not believe the Tribunal's order to be valid. He submitted that a strike out order should not be made."

[10]The Tribunal concluded that the order had been made, should have been complied with and had not been complied with and, in the light of and, notwithstanding the submissions by the Appellant, it was just and equitable to strike out the Appellant's Originating Application. They further made an order for costs, to which I shall return later.

[11]There is no doubt that an order for further and better particulars must be complied with, even if a party thinks that that order is wrong or misconceived, and even if there is a pending appeal against it. The single making of an appeal does not excuse a party from complying with an order unless there is a stay pending appeal; a fortiori, it must be complied with, if there is, as there was not in this case, no appeal against that order, and it stands unappealed. Court orders are made to be obeyed, even if a party does not like them, or thinks they are misconceived.

[12]I must refer to Corner v Buckinghamshire County Council

[1978] ICR 836

, because without seeking to intend a pun, this has been the "cornerstone" of the Appellant's appeal. The particular basis on which the case was decided and reported was that the Industrial Tribunal in that case had taken the opportunity of a dispute about the conditions on which an employer was going to agree to an employee taking time off to be a JP, to claim and exercise a jurisdiction that it could declare what conditions were appropriate, and thus to impose on the parties conditions, as to the way in which the time off should be granted, in particular, for example, as to whether time off should be unpaid or not. That was the basis of the decision of the Employment Appeal Tribunal per Slynn P. However, in the course of the decision, there is helpful analysis of the statute, and it is utterly clear that in that case it was not contested, or at any rate it was found, that there had been a refusal, and the argument was then founded as to what the consequences of the refusal were, namely, as to whether the Tribunal did or did not have the jurisdiction to impose terms. At page 838 D, the judgment of Slynn P includes the following:

"The position then was that the employers refused more than 15 days leave a year for the purpose of these duties, and the employee said that he needed even more than that to satisfy the requirements of his particular bench."

And at page 839 B, Slynn P continued as follows:

"It may be that in a suitable case, as is here accepted on behalf of the employers, in considering whether there has been a refusal to grant time, the industrial tribunal can look at the conditions subject to which an employer is prepared to grant time off (including conditions relating to pay) and could say that the conditions imposed by an employer were such that they really amounted to a refusal to allow time off to be taken."

[13]Mr Edwards, misconceiving the result of Corner , but standing firmly on his misconception even before me today, has continued to pursue his case on the basis that he is not saying that there was a refusal by the Respondent. If indeed his case is, and always has been, and continues to be, that there was not a refusal, then on his own case the claim under Section 50 must fall away as unarguable and would be justifiably struck out on that ground alone. But, if his case had been that there was a refusal, and that, using the Corner case simply as an analogy or exemplar, on a proper construction of the Appellant's letter he could bring himself within Sections 50 and 51 of the Act such that, adopting Slynn P's words, what may have looked like a qualified acceptance was, in fact, a refusal, then he needed so to assert. He needed to put forward that case, and, insofar as such case was to be put forward, he could not do so without first complying with the order of the 15 June, which required him to give exactly those particulars. Rather than give those particulars, he persisted in his untenable position and did so, right through to the hearing of 6 July.

[14]In those circumstances there was a deliberate decision by Mr Edwards. It may be resulting from a misconception, but that is not the fault of the Respondent, and he had plenty of opportunity to reconsider it, given that he himself had the Corner case, as he has told me, to look at in detail at all material times. This was a deliberate refusal by him to comply with the order. He could not pursue this case without complying with the order. He had still not complied with it by 6 July, and the Tribunal was perfectly entitled, in those circumstances, to strike out his claim.

[15]As for the order for costs, they exercised their discretion by reference to the then equivalent of the present Employment Tribunal Rule 14(1), which provides that, "Where, in the opinion of a tribunal, a party has in bringing the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make an order" for such costs. The Tribunal made that order, in the sum of £500. It recited its conclusions as follows:

"19 Consequent to the decision to strike out the Application, Mr Basu, on behalf of the Respondent, then made an application for costs. He pointed out that his instructing solicitors had written to the Applicant by letter dated 4 July 2001, faxed to the Applicant's home, giving a warning as to costs. He further submitted that this was not the first time the Applicant had made claims to the Employment Tribunal. One previous application had been dismissed and two claims for breach of contract had been withdrawn. There were currently two other applications before the Employment Tribunal. He submitted that there was a pattern emerging of vexatious litigation which was putting the Respondent to time and cost. He relied on the failure to respond to the Tribunal's Order in seeking the order for costs and pointed out the discourteous tone of the Applicant's letter dated 17 June 2001. This was an unreasonable way to conduct the proceedings."

[16]It is plain that the Respondent made their application for costs, on the basis of what one might call "the unreasonable head". The reference to the earlier proceedings was for the purpose of showing that this was not someone who was an innocent or who was fazed, or likely to be fazed, by the carrying on of proceedings. Paragraphs 20 and 21 read as follows:

"20 The Applicant opposed the application for costs and was concerned that parties could be penalised for asserting their rights. He accepted that he had taken legal advice at certain times when he felt he needed it." 21 The Tribunal concluded that this was a proper case for an award of costs. In view of the number of claims the Applicant was bringing against the Respondent before the Employment Tribunal, there was evidence of vexatious litigation. The Applicant had been given a clear warning, which he had not heeded, about pursuing the claim to a hearing. He was in breach of an Order of the Tribunal, which amounted to unreasonable conduct."

[17]The Appellant has been disturbed by the use of the words "vexatious litigation" in that paragraph by the Tribunal and has indicated that, before any such conclusion could be reached, at the very least the content of his three previous dismissed or withdrawn applications, or then current applications, should have been considered.

[18]It is plain that the Tribunal was not reaching any conclusion as to the Appellant being a vexatious litigant in any strict sense. They were expressing their own view that a considerable number of other proceedings might be said to constitute some "evidence of vexatious litigation", to indicate vexatiousness for the purpose of the Rules on costs. But it is equally plain that they did not rest their conclusion wholly, or indeed substantially, on their characterisation of the existence of the other proceedings as being evidence of vexatious litigation. They made the finding, and were entitled to make that finding, by reference to a conclusion that the Appellant had acted unreasonably, by virtue of his deliberate breach of the order, which they concluded to be unreasonable conduct, and by virtue of his having pursued the matter, notwithstanding a clear warning which he had not heeded. Had, for example, he attempted to give the particulars even out of time, then prior to the hearing on 6 July, there might have been a palliation of the view of the unreasonableness of the conduct, and/or the costs warning might be said to have been in part heeded, but none of that occurred.

[19]In those circumstances, it appears to me that it is an order which the Tribunal were perfectly entitled to make, namely to couple the strike-out order with an order for costs in the sum of £500 in respect of unreasonable conduct, but whether on the grounds that they there set out, or any of them, and this being an exercise by the Tribunal of its discretion, is not one which can, or should be, challenged in law, either by reference to a case such as Mr Edwards has asserted of perversity, which is unsupportable on the facts of this case, or otherwise.

[20]This case was the subject-matter of an order by the Registrar under Rule 3 of the Employment Appeal Tribunal Rules 1993 . The Appellant has exercised his opportunity to seek an oral hearing, pursuant to Rule 3(10) and, having considered the matter, I uphold the decision of the Registrar dismissing this appeal, pursuant to Rule 3.