Andrew v Eden College & Ors (Practice and Procedure : Costs) [2011] UKEAT 0438_10_1005

EAT
Andrew v Eden College & Ors (Practice and Procedure : Costs)
[2011] UKEAT 0438_10_1005 · 2011-05-10
[1]This appeal concerns the jurisdiction of an Employment Tribunal to order one party to a hearing in proceedings before it to pay for the preparation time incurred by another party. That jurisdiction is conferred by the Employment Tribunal Procedure Rules 2004 . We shall refer to the specific provision a little later in our Judgment.[2]In the instant case such an order was made by an Employment Tribunal sitting at London East. By a decision promulgated on 31 December 2009 it ordered Mrs Andrew, who had been the unsuccessful Claimant in proceedings before that Employment Tribunal to pay the Respondents to her claim a sum of £3,944 in respect of preparation time. The Employment Tribunal concluded that it derived jurisdiction to make such an order from its finding that Mrs Andrew had been misconceived in the particular circumstances of her case in continuing with the proceedings which had culminated in a six‑day hearing before the Employment Tribunal.[3]Mrs Andrew now appeals to this Employment Appeal Tribunal against the Preparation Time Order and she has been represented, as she was in the Employment Tribunal, by her husband, Mr Meenatchi‑Sundaram. He presented a compendious Notice of Appeal, which after amendment comprises a 27‑page document.[4]The Notice of Appeal was carefully considered by HHJ McMullen QC on the papers. He directed that, save for one aspect of the grounds of appeal, the amended Notice of Appeal contained no arguable error of law. It would accordingly go forward for determination on that one aspect only.[5]Mrs Andrew exercised her right to have that decision reviewed by another Judge of the Employment Appeal Tribunal at a hearing. That hearing was conducted by Cox J on 30 March 2011. She concluded, for reasons given in a Judgment of which we have had the transcript, that the order made by HHJ McMullen had been the correct order. We are told today that her order has itself been made subject of a Notice of Appeal to the Court of Appeal.[6]Accordingly, what comes before us for determination today is only the one aspect of the Notice of Appeal which HHJ McMullen directed should be considered at a full hearing. That aspect is the contention that the Employment Tribunal erred in law: firstly, in making a Preparation Time Order in respect of the attendance of Ms Jacobson, the Second Respondent, at the substantive six‑day hearing before it; and secondly, in making a preparation time award to the First Respondent, Eden College, in respect of the attendance of its non‑party witnesses at that hearing.[7]As Mr Meenatchi‑Sundaram accepts in his written skeleton argument before us, in essence the point we have to consider is ground 5 of the grounds of appeal distilled on the last page of his Notice of Appeal document. That reads: “The Tribunal had awarded the wrong amount under rule 42. Or the Tribunal had no jurisdiction to award preparation time for attending the Hearing under rule 42”.[8]In his oral and written arguments Mr Meenatchi‑Sundaram has understandably from time to time strayed well beyond the ambit of that ground as interpreted by HHJ McMullen’s order. However, we have no jurisdiction to consider any other matter than the matter which has been permitted to go forward for a full hearing.[9]What the Employment Tribunal ordered in respect of preparation time is clear from the terms in which the Tribunal expressed itself at paragraphs 11 and 12 of its written reasons. Midway through paragraph 11 the Tribunal say this:
“The Tribunal has decided that in the exercise of its discretion it is reasonable to award the Respondent some of its costs associated with the actual Hearing itself. Freda Jacobson clearly needed to attend throughout but the Tribunal is not satisfied that all of the witnesses did. Further, Freda Jacobson also had to undertake preparatory work before and during the Hearing. Doing the best it can from the information provided the Tribunal awards the following hours:- 48 hours claimed by Freda Jacobson for attending at the Hearing. 48 Hours for Freda Jacobson’s preparation for it. One day (8 hours) for each of the five witnesses, making a further 40 hours.”
[10]In paragraph 12 the Tribunal say:
“The Tribunal therefore awards the Respondents 136 hours in preparation time @ £29 per hour, making a total of £3,944.”
[11]The extract from which we have read in paragraph 11 contains the word ‘costs’ when the correct term, given the order eventually made, the context of the rest of the decision and the jurisdiction that the Employment Tribunal was exercising, was ‘preparation time’. Mr Meenatchi‑Sundaram has suggested that the use of the word ‘costs’ rather than the use of the correct term ‘preparation time’ revealed some misdirection or error of law on the part of the Employment Tribunal. We reject that submission. We consider that in the context of the written reasons as a whole this was simply an inconsequential and inadvertent slip.[12]What is plain is that in respect of the three elements of the preparation time award, the first was for 48 hours in respect of the Second Respondent’s attendance at the hearing, that is to say six days at eight hours per day; the second was, as stated, purely for her preparation; and the third was for the attendance of the First Respondent’s witnesses at the hearing.[13]The jurisdiction available to the Employment Tribunal in respect of preparation time is contained in rules 42 to 47 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861). Schedule 1 contains the procedure rules themselves and rule 42(3) defines the term ‘preparation time’. It provides as follows:
“For the purposes of these rules preparation time shall mean time spent by - (a) the receiving party or his employees carrying out preparatory work directly relating to the proceedings; and (b) the receiving party’s legal or other advisers relating to the conduct of the proceedings; up to but not including time spent at any Hearing.”
[14]On the express terms of that provision, it is tolerably clear that a Preparation Time Order cannot be used to compensate a party or its employees for the time actually spent in the hearing from which the preparation time award later flows. Mr Meenatchi‑Sundaram submits in his written argument and Notice of Appeal that the closing words of the sub‑rule, that is to say the closing words of rule 42(3), apply to both limbs of it, (a) and (b). We agree with that construction. Moreover, it is supported by the relevant passage in Blackstone’s Employment Law Practice 2011 where the learned editors write at paragraph 12(42):
“In both cases, preparation time covers that spent up to the hearing but not the hearing itself”
. It follows, given that the Employment Tribunal expressly made awards for preparation time under the first and third elements of its findings for ‘attendance’, that this appeal must be allowed in respect of those two items.[15]The question arises as to how this appeal should be most justly disposed of. Should we simply excise the first and third items and uphold a varied order containing just the second, or should we remit the whole of the preparation time award to the same Employment Tribunal to reconsider in the light of our judgment? We invited Mr Meenatchi‑Sundaram to offer his submissions one way or the other as to the correct disposal but he fairly indicated that he was happy with either outcome.[16]In deciding which course to follow we have reminded ourselves of the terms of the Employment Tribunal’s Judgment, in particular paragraph 11 where the Tribunal say:
“Further, Freda Jacobson also had to undertake preparatory work both before and during the hearing.”
[17]It may be that the Tribunal there intended to make some award in respect of her preparation time not while present at the hearing but during the hearing in the sense of in between the six hearing days. It seems to us that that suggests that the Employment Tribunal wished to take into account, or may have wished to take into account, preparation time in the sense of preparation undertaken outside of the Tribunal hearing rooms, over or between the days of the actual hearing. We cannot be sure. However, in the circumstances it seems to us that the fair and just thing to do is to set aside the decision of the Employment Tribunal and remit to it for re‑determination the question of the appropriate amount of time to be subject to a Preparation Time Order.[18]Accordingly, our order will be that this appeal is allowed; the award of preparation time by the Employment Tribunal is set aside; and, thirdly, that the consideration of the application by the Respondents for payment for preparation time shall be remitted for re‑determination by a Tribunal of the same constitution.