THE HOME OFFICE v MRS A BAILEY & ORS MRS J MARTIN & OTHERS MRS A BEACHCROFT & OTHERS [2005] UKEAT 0706_04_0211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0706_04_0211Case No Appeal No. UKEAT/0706/04/SM & UKEAT/0140/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE HOME OFFICEAPPELLANTMRS A BAILEY & ORS MRS J MARTIN & OTHERS MRS A BEACHCROFT & OTHERSRESPONDENTS
Before
His Honour Judge Peter Clark Mr A Harris Mr S YeboahDate 2 November 2005
[1]APPEARANCES For the Appellant MS J EADY (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS For the Respondent MS TESS GILL (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LV SUMMARY Practice & Procedure: Permission to Appeal Further & Costs Test for granting/refusing permission to appeal. Whether power to make partial order for costs. HIS HONOUR JUDGE PETER CLARK We handed down our judgment on these two appeals on 29 July 2005 and invited written applications, if deemed appropriate, in relation to the question of permission to appeal and costs. In due course the Prison Service applied for permission to appeal against our judgment and the Claimants applied for partial costs in relation to what is described as the formula judgment appeal although that, in turn, incorporated parts of the first appeal as appears from our substantive judgment.[2]Having considered those applications, both of which were opposed on paper, we deemed it necessary to hold an oral hearing and that hearing has taken place today. We are grateful to Ms Eady and Ms Gill for the economy with which they have advanced their respective causes. Permission To Appeal[3]Ms Gill has referred us to the Court of Appeal decision in Cook v Secretary of State for Social Security [2002] 3 AER 279, an appeal against the finding of the Social Security Commissioner on the test to be applied when considering permission to appeal applications in relation to prospective appeals to the Court of Appeal. Hale LJ there draws attention to Section 55(1) of the Access to Justice Act 1999 and the requirement in those appeals to the appeal raising an important point of principle or practice or some other compelling reason for the Court of Appeal to hear it. While Section 55 did not apply directly to the appeal in that case, Hale LJ made it clear that appeals against that specialist body's decision should be viewed robustly when applications for permission were made. At paragraph 18 of her judgment, she also makes passing reference to the position of the Employment Appeal Tribunal without expressing any concluded view.[4]We recognise the distinction between this Appeal Tribunal dealing with private law disputes and the Government and citizen issues which arise, for example in the Social Security sphere. Our view is that the proper approach is that advocated by Ms Eady, namely that we should be satisfied that there is a real prospect of success in the appeal or some other compelling reason for granting permission to appeal, but we accept Ms Gill's proposition that in deciding that question, we should take a robust view.[5]The amended grounds of appeal largely, although not exclusively, follow the areas in which Mr Yeboah delivered a dissenting opinion in our substantive judgment. Of course, we take into account the fact that we were divided in the result. However, the fact that one of our number has dissented is not determinative of the application for permission. Having considered the way in which the application is put by Ms Eady, particularly in relation to the pension doubling issue, the majority of us are not persuaded that this proposed appeal raises a real prospect of success. Nor do we think that there is some other compelling reason for granting permission. In these circumstances, we would dismiss the application. Mr Yeboah takes a different view. He would grant permission to the Prison Service. However, the majority view prevails and accordingly, permission is refused. Costs[6]Again, an issue of principle arises in this case. The Claimant's application for costs is in relation to the formula judgment appeal only as extended to some extent by grounds brought in from the first appeal and it is accepted, in so far as Mr Yeboah dissented on the unsocial hours premium of 50% as determined by the Employment Tribunal and on the issue of contractual obligations as it has been put, that the formula judgment appeal raised arguable points and no application is made in relation to the costs of that part of the appeal. However so far as the remainder of that appeal is concerned, Ms Gill particularly relies on paragraph 64 of our judgment in which we found unanimously that, save for the areas in which Mr Yeboah took a different view, the appeal ultimately raised no issue of law.[7]We have to set that finding in context. First, we accept Ms Eady's submission that costs in this Appeal Tribunal, as in the Employment Tribunal, are ordered exceptionally – see Lodwick v London Borough of Southwark [2004] ICR 884 . The point of principle arises on the reading of Rule 34A of the EAT Rules as amended which provide:
"(1) Where it appears to the Appeal Tribunal that any proceedings brought by the paying party were unnecessary, improper, vexatious or misconceived or that there has been unreasonable delay or other unreasonable conduct in the bringing or conducting of proceedings by the paying party, the Appeal Tribunal may make a costs order against the paying party"
Ms Eady submits that where the proceedings – here, the formula judgment appeal - is in part accepted not to fall within that rubric, then it is not open to the EAT to make an order for costs. The applying party does not pass through the jurisdictional gateway. Ms Gill submits that, as in the ordinary Courts, it is open to this Tribunal to make an order for partial costs.

(c) which provides:

"The Appeal Tribunal may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party"
. She also draws attention to paragraph 19.3 of the EAT Practice Direction which also provides for an order for partial costs.[8]We accept Ms Gill's submission that it is open to this Tribunal to make an order for partial costs in the circumstances raised in this case. However, turning to the merits of the application, whilst we unanimously concluded that parts of the formula judgment raised no issue of law, as a matter of case management, we thought it necessary to hear both parties on all issues raised on the formula judgment appeal, bearing in mind the complexities of this case and also a degree of interlocking between the various grounds of appeal raised in that appeal. We are not persuaded that the grounds which failed in our unanimous judgment materially extended the hearing of this appeal. We accept that there was a degree of additional preparation in relation to those grounds. However, overall, as a matter of discretion, we have all of us concluded that this is not a proper case in which to order costs and consequently the costs application is dismissed.