Appeal No. EAT/407/92
	 I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6 July 1993

	Before

	HIS HONOUR JUDGE J HULL QC

	MISS A MADDOCKS OBE

	MR J C RAMSAY

TIBBATTS ASSOCIATES LTD	APPELLANTS

MRS F CAMERON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MS I OMAMBALA
(OF COUNSEL)
Rigbeys
42-44 Waterloo Street
Birmingham

For the Respondent	MR J A DEE
(OF COUNSEL)
Whittingham, Bradwell & Mack
Church House
13-15 Regent Street
Nottingham
NG1 5BS

	JUDGE HULL QC:  In this case the Industrial Tribunal decided the complaint of Mrs Cameron on 25 February 1992, and held that she was entitled to make her complaint to the Tribunal on the basis that there had been a transfer of the business by she was employed.  We do not say anything about the merits of that except that it was quite clear that the basic task of the Tribunal was to construe a long and complicated Transfer of Assets Agreement - 30 pages long apparently - which we have not been shown.  Construction is a matter of law and accordingly the appeal was on the basis that the Tribunal had misconstrued the document and should have reached a different conclusion. 

	It is quite true that the Tribunal, whether rightly or wrongly, looked into a number of surrounding circumstances and facts.  They were entitled to look at the surrounding facts as background to assist in the construction of the document but they were not entitled, if they did do this, to go into the actions of the parties under the Agreement to show what the true construction of the Agreement should be.  Therefore, it does appear to us that the appeal was on a point of law and the complaint, which is made here, that it was basically an appeal on fact dressed up as law is not established.

	The notice of appeal is dated 12 June 1992 and there was a cross-notice seeking to uphold the Decision on different grounds which was, of course, served shortly thereafter.  The Solicitors who were then acting for the Appellants were not the same as the Solicitors who are now acting, but we are told that Counsel's opinion was sought and it was advised, for the Appellants, that they had reasonable grounds for appeal. 

	We are told that notice of today's hearing was sent to the parties on 22 March and after that there was a change of Solicitors.  Not surprisingly, a fresh look was taken at the case and there were discussions last month between the parties.  We have been told that the instructions from the Appellants were that a pragmatic and commercial view should be taken on whether to go on with the appeal.  As a result of the discussions it was agreed by the parties by 16 June 1993, that both appeal and cross-appeal should be withdrawn. 

	The first ground on which Mr Dee applies for the costs of the appeal, on behalf of the Respondent, is that this was basically a question of fact.  We have already dealt with that. Then, Mr Dee points to the fact that the appeal continued for 11 months without anything being done to compromise it.  One has to remember the reality on the face of it, and going on one's experience, this was a not surprising stage to settle, indeed, a very prudent stage to settle before Counsels' briefs were delivered and before the principal expense of the appeal had been incurred.

	It would be a very sad thing if this Tribunal's orders about costs were to prevent rational discussions at the proper time with a view to settling cases.  There are too many cases brought to this Court that are not truly arguable, or which are seen not to be arguable, and to take a pragmatic view, to use the language apparently of the Appellants here, is always commendable.  There was no question of the Respondent, so far as we can see, being led up the garden path and made to assume until the last moment that the appeal was effective, on the contrary, what has happened here appears to be by no means unusual and by no means unreasonable.  One knows that parties start off an appeal and sometimes are forced to do so in something of a hurry if they are going to appeal at all and here the Appellants were fortified by Counsel's opinion.

	In those circumstances we have to ask ourselves whether it appears to us that any of these proceedings are necessary, improper or vexatious, or whether there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings.  It is not unreasonable for any party who is dissatisfied and who is advised that they have grounds for appeal, to seek access to an Appeal Court. 

	To think carefully about the appeal, not only before you make it but after you make it, is praiseworthy rather than the reverse.  It is very easy to criticise decisions with the advantage of hindsight but in our view, it is a serious matter to say that there has been unreasonable conduct.  We do not think that that is established; on the contrary, as the case has appeared to us, it may very well be that a reasonable view was taken throughout.  It is not established that there ought to be, any order for costs, notwithstanding that the appeal and cross-appeal have been withdrawn.  Therefore, there will no such order.