Appeal No. EAT/593/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27 July 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J H GALBRAITH CB

	MR P M SMITH

MR JOHN ASHTON	APPELLANT

INDEPENDENT TELEVISION NEWS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON

For the Respondents	MR JAMES TAYLER (of 	Counsel)
Messrs Biddle & Co
1 Gresham Street
London EC2V 7BU

	JUDGE HULL QC:  The decision which I am about to give is the decision of us all.  Mr Ashton is a long-standing employee of Independent Television New Ltd.  He is an editor and he is now aged 42.

	On 27 November 1992 he was dismissed and on 26 February 1993, the last day when he could do so, he presented his application to the Industrial Tribunal complaining that he had been unfairly selected for redundancy and that his dismissal was unfair.  The employers defended that.  

	The application which, on the face of it, would not present problems or be seen as particularly difficult, is exactly the type of application which Tribunals are used to trying.  Unfortunately, it has been attended by a good deal of difficulty.  There have been numerous interlocutory applications and decisions and this, indeed, is the second appeal and Mr Ashton has not yet got to the hearing, which we are told is to be on 12 September 1994.  There were applications for discovery and further discovery.  There were allegations that orders for discovery had not been complied with.  I will not go into all the details.

	We wish to make it clear that interlocutory orders, in the nature of things, are intended to promote the fair trial of the action.  If the orders or the applications for the orders result in delay and embarrassment to the parties then they are counter-productive.  It must be remembered that all interlocutory orders are, in their nature, discretionary, whether they are for discovery, for further and better particulars, for an adjournment, whatever it may be; they are discretionary orders intended to promote justice.  It must also be remembered that such orders in the nature of things cannot be perfect.  The Tribunal or court which makes an interlocutory order has not tried the action, is not able to take any reliable view about the evidence and must necessarily make what seems to be the best order in the circumstances on such matters as are plain to it.  Very often an order will turn out, in the event, not to have been the best order which could be made; but that cannot be decided until the application is tried and the evidence is heard.  It may then be necessary for the Tribunal or Court to say that (most unhappily) it appears that this order should not have been made, or that this order should have been made differently.  It may even be necessary to adjourn at that very late stage, so that matters can be put right.

	We make these remarks because it appears that there has been an over-zealous attitude to interlocutory applications in this case.  In general it is very difficult ever to appeal an interlocutory order.  The reason is, of course, that it is discretionary and no appeal tribunal, such as this, or court of appeal, will ever reverse a discretionary order unless it is entirely satisfied, first of all, that the discretion has been wrongly exercised (and that, in general, is very, very difficult to establish); and secondly, that it is necessary to the fair trial of the action that the order should be altered in some way.  Counsel has told us this morning, quite rightly, that the Court of Appeal is extremely reluctant to embark on matters which are the responsibility of the trial judge.  It is for the Industrial Tribunal itself in the present case to ensure a fair trial.  It is not for us to tell tribunals how to ensure fair trials, it is for them.  They have the responsibility.  They are the sole tribunal of fact and it is for them to say what they think is necessary in each case with regard to any interlocutory orders.  We believe that orders for discovery and further and better particulars should be the exception rather than the rule.  We think that tribunals which are intended to try cases summarily and quickly and in a commonsense way, with the wisdom of commonsense rather than legalistic formality, ought to be allowed to get on with their cases.  We hear any appeal with regard to an interlocutory order with great reluctance.

	Here there has been too much interlocutory sparring between the parties.  I do not propose to go through it all, but on 12 November there was an order for discovery against the appellant and on 8 December he launched a notice of appeal.  That was listed for hearing on 28 April and it was withdrawn 6 days before.  Mr Ashton tells us that that was because he had, by agreement, got what he wanted.  On 21 April there was another interlocutory hearing in front of the Industrial Tribunal and Mr Ashton was strongly urged to take legal advice.  There were other orders and this appeal to us today is brought against two determinations of the Industrial Tribunal. 

	On 18 May 1994 Miss Brassil, the Chairman, made an order for discovery against the appellant.  He objects to that and he appealed against that.  He now accepts, apparently on advice, that the better course would be to take the matter further with the Tribunal.  On 14 June the Chairman determined that the respondents, the employers, had complied with an order which had been made as long ago as 1993 for discovery.  Mr Ashton was dissatisfied with that, too, and appealed against that, too. 

	As I say, it is not apparent that these appeals could have succeeded.  There are all sorts of reasons why should not have done.  These were discretionary matters.  They were matters which, on the face of it, could be taken further with the Tribunal itself.  A very important point is this:  since essentially the complaint was that the orders were wrongly made, it would be essential for the Chairman to give her full reasons and our rules require that no appeal should be brought to us unless there is with that notice of appeal, setting out the grounds of appeal, the full reasons.  The full reasons must be asked of the Tribunal within three weeks of the decision and then, of course, there is a time limit for the appeal.  The appeal must be brought with the full reasons.  We cannot possibly discern whether there is a point of law, an error by the Tribunal, by its Chairman or by the full Tribunal, unless we have the full reasons.  That was not done.

	The appeals were, on the face of it, quite incompetent and even if they had not been incompetent, would appear to have been quite impossible of success.

	A little more history, most of it supplied by Mr Ashton.  He says that he has belatedly, it would seem, been seeking legal advice.  On 1 July he went to Camden Law Centre and saw a solicitor there, and received certain advice.  He then took certain advice from a firm called Stephens Innocent under the green form and, eventually, on 22 July he obtained emergency legal aid and had a conference with Counsel.  Counsel gave him certain advice.  That advice has been relayed to him by the solicitors and he tells us that it was advice to withdraw the appeal.  Yesterday, he did withdraw his appeal.

	The respondents attend here today by Counsel.  They have incurred, they say, very substantial costs in defending the appeal.  They make two complaints:  first of all the appeal could not have succeeded for reasons which I have very briefly outlined (and certainly it is very hard to see how it could have succeeded); but they say that if it was to be withdrawn, then it was impossibly late to withdraw it because all the costs had been incurred.

	Mr Ashton, for his part, has put various matters before us.  They could justly be called matters in mitigation.  We appreciate, of course, it is not easy for a litigant in person, particularly if he thinks that his case is one which speaks for itself and it is simply justice which he is seeking, to understand how important it is to get matters in order and seek legal advice at an early stage.  Matters would have been much better if Mr Ashton had obtained advice earlier.  It does seem that Counsel who advised him took a very similar view to the one which I have been expressing on behalf of us all, discouraging such appeals as this.

	We have been invited by the respondents to invoke the provisions of rule 34 of the Employment Appeal Tribunal Rules which provides:  

		"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred ..."

	We think without going into all the details that these proceedings did have that character and so did the conduct of them by Mr Ashton.  Looking at it objectively this was an appeal which it was extremely difficult to see could succeed and, of course, it has in fact been belatedly withdrawn on advice.  It is an appeal which was brought without regard to the rules of our Tribunal and it was abandoned at the very last minute, it being seen by Mr Ashton now (with the aid of advice) that it was not proper or sensible to proceed with it.
 
	Therefore, our discretion is opened under that rule.  We bear in mind that this is a case which, through unnecessary complexity, has already imposed considerable burdens on the parties and Mr Ashton must bear some share of the blame for that, it seems to us.  Certainly, as we have said, this appeal can be criticised on various grounds.

	We bear in mind that Mr Ashton sought advice and seems to have acted swiftly in obtaining advice; but really he should have sought advice much sooner and should not have launched an appeal like this without taking advice on the matter.  As a result, he has done what objectively falls within the terms of the rule.  

	He has been, he tells us, unable to obtain other employment.  We think, in the circumstances, it is right to order him to pay a proportion of the costs and the order which we make is this:  that Mr Ashton is to pay the respondents one-half of the costs of this appeal - not of any other matters - beginning with the date of the notice of appeal and ending when the respondent was informed of the issue of the emergency legal aid certificate on 20 July.  In other words, a period of about 4 weeks; and he is to pay one-half of those costs.  We are not prepared to make any award of costs during the period that he has been legally aided.  Nor does our order extend to the costs of today.  So it is half the costs of this appeal, from the date of launching the appeal up to the date when Mr Ashton received his legal aid certificate and we wish to express the very strong hope that this case will be properly and successfully tried on 12 September and that, whatever representations Mr Ashton or, indeed, the respondents, see fit to make to the Industrial Tribunal, they will not do anything which will prevent that trial taking place then. The costs are to be taxed.