MR C G BRIGHT v GROUP TAXIBUS LIMITED [2009] UKEAT 0462_08_2301

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0462_08_2301Case No Appeal No. UKEAT/0462/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C G BRIGHTAPPELLANTGROUP TAXIBUS LIMITEDRESPONDENT
Before
Mrs Justice SladeDate 23 January 2009
[1]APPEARANCES For the Appellant MR M CONDRON (Consultant) Condron Associates PO Box 43389 Highbury London Central N5 1TW For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY PRACTICE AND PROCEDURE: Costs No evidence or submissions were addressed to the Employment Judge as to any considerations to be taken into account under Rule 41(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 in considering whether to and if so in what amount to make a costs order. Such points cannot now be taken on appeal. Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 applied. THE HONOURABLE MRS JUSTICE SLADE This is an appeal from a costs order made by Employment Judge Laidler entered in the register on 3 July 2008. The hearing on 13 June, to which this appeal relates, was convened solely to deal with the question of costs of proceedings for unfair dismissal and sex discrimination. I will not go into the circumstances which gave rise to those claims. They do not reflect well on the Claimant. The unfair dismissal claim was withdrawn on the basis that the Claimant was not an employee and the sex discrimination claim was not pursued. The matter came before the Employment Judge solely for consideration of an application for costs. The Employment Judge concluded that the Claimant acted unreasonably, that his claims were misconceived within the meaning of Rule 40 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 ('the ET Rules') and that he must pay £5,000 to the Respondent in respect of their costs of these proceedings.[2]The point of appeal before me is whether, having regard to Rule 41(2), of the Employment Tribunal Rules the Employment Judge erred in law, in failing to state whether she considered the paying party's ability to pay in deciding whether she should make a costs order and if so, how much the order should be. I will refer to the rule relating to costs. Rule 41(1) provides that the amount of a costs order against a paying party shall be determined in any of the following ways,:
"(a) the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000. …"
Rule 41(2) provides:
"The tribunal or a chairman may have regard to the paying party's ability to pay when considering whether it or he shall make a costs order or how much that order should be."
Mr Condron, who appears before me, as he did below for the Appellant Claimant, has drawn attention to the case of Jilley v Birmingham & Solihull Mental Health NHS Trust and Ors [2007] UKEAT 0584/06/2111 , a judgment of HHJ Richardson, sitting with members on 21 November 2007. In particular, he draws attention to paragraph 44:
"Rule 41(2) gives to the Tribunal a discretion whether to take into account the paying party's ability to pay. If a Tribunal decides not to do so, it should say why. If it decides to take into account ability to pay, it should set out its findings about ability to pay, say what impact this has had on its decision whether to award costs or on the amount of costs, and explain why. Lengthy reasons are not required. A succinct statement of how the Tribunal has dealt with the matter and why it has done so is generally essential."
[3]In the case before me it appears from her judgment that the Employment Judge did not set out any factors which may relate to Mr Bright's ability to pay costs when exercising her discretion to make a costs order. Although the judgment refers to the income of the Appellant there is no reference to his expenses. In reaching her decision on making a costs order the Employment Judge held at paragraph 16:
"In reaching this decision consideration has been given to the Claimant's income from his new employment of approximately £1,700 per month."
There is no reference to taking any expenses or liabilities into account. Mr Condron has very fairly and properly said that the Tribunal Judge did not have placed before her the judgment of HHJ Richardson or, indeed, material as to what the expenses or liabilities of his client were. Again he very properly and frankly tells me that the point which he now raises on appeal on behalf of Mr Bright was not a point raised before the Employment Judge.[4]Mr Condron therefore seeks to raise a new point of law which would require additional evidence. In my judgment it cannot be said that these are exceptional circumstances. The judgment of Judge Richardson was not placed before the Employment Judge. Evidence of liabilities or inability to pay was not placed before the Employment Judge.[5]In a long line of authority, including Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 , it has been said that the discretion to allow a new point of law to be raised on appeal is a discretion that should only be exercised in exceptional circumstances and for compelling reasons, particularly if the new point would necessitate the case being remitted to the Tribunal to hear further evidence. This is not a case in which the new point goes to jurisdiction. It is a case in which, if the appeal were to succeed, there would have to be a remission to a tribunal to hear further evidence. It would be idle to speculate on how much evidence would be heard and whether it would be controversial. However there would have to be a remission and evidence on Mr Bright's expenses and liabilities and his ability to pay a costs order.[6]Further, it is said by Mr Condron that if the Employment Judge did not take into account the paying party's ability to pay, and therefore necessarily his expenses and liabilities, she erred in failing to give reasons for not doing so. The points sought to be taken on appeal were not raised before the Employment Judge. The circumstances in which the new points are sought to be raised are not exceptional nor are there compelling reasons to exercise the discretion to allow them to be taken. Accordingly this appeal is dismissed.