Appeal No. EAT/1006/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 31 January 1996

	Before

	HIS HONOUR JUDGE C SMITH QC

	MISS A MACKIE OBE

	MR D J JENKINS MBE

MR B COOMER	APPELLANT

ARTIX LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR 	ON BEHALF OF 	APPELLANT

For the Respondents	MR D SMEDLEY
(Of Counsel)
Messrs Walker Morris
Kings Court
12 King Street
Leeds
LS1  2HL

				JUDGE SMITH QC:  We have had to consider what we should do in relation to this appeal.  Leave was given a very long time ago on 27 January 1995.  Leave was given on one ground of appeal only against the decision of the Industrial Tribunal.  The one ground was whether the Respondents were entitled to set off against the two weeks pay which was by way of compensation for unfair dismissal, on the basis that there should have been a two week period of consultation, the ex-gratia payment that had been made to Mr Coomer.  Leave was given by the Employment Appeal Tribunal in relation to that one ground a year ago.  It is to be noted that at that time there was no doubt that it was considered to be an arguable point. 

	The matter was dealt with by the Employment Appeal Tribunal in this way: 

	"The point which is sought to be argued is that the Appellant should be entitled to receive the two weeks pay, which the Tribunal assessed as an appropriate compensatory award, without deduction of the ex-gratia payment, because he would have received the same ex-gratia payment had he been dismissed following two weeks consultation.   It does appear to us that that point is arguable and therefore we allow it to proceed, as we say, with some regret, that the time of the Appeal Tribunal will be taken over involving so small a sum of money.  However, it may proceed."

That was at the end of January 1995.  At the same time the E.A.T. rejected another ground of appeal which was to the effect that the Industrial Tribunal had misdirected itself in law in relation to the principles it should apply in deciding whether the Applicant should be granted an adjournment of the hearing before the Industrial Tribunal, which had been listed for 8 December 1993. 

	Shortly before the hearing the Appellant's trade union representative had been taken ill.  That was in circumstances where there had been a previous adjournment at the request of the employers, the Respondents.  There had also been another adjournment to suit the convenience of those sitting in the Tribunal.  Nevertheless the application to adjourn was refused.  The matter was considered by the Employment Appeal Tribunal, which held at the end of January 1995 that: 
	"... a decision to grant or refuse an adjournment is essentially a discretionary matter.  It appears to us that there must have been present to the Chairman's mind when he considered this application a number of factors, some of which would favour the Appellant and some would point to the conclusion that the hearing should continue."

Accordingly it was held that:

	... it is impossible and unarguable to suggest that this refusal of an adjournment could be perverse."... 

So application for leave to proceed on that ground was refused.  

	There is no doubt in our minds that what has been motivating the Appellant since then is the sense of injustice which he feels in relation to those decisions.   By those decisions we mean the decision of the Chairman of the Industrial Tribunal and the lay Members to refuse his application for an adjournment on 7 and 8 December 1993 and the ensuing refusal of the Employment Appeal Tribunal to give him leave to proceed to a full hearing on that ground.  We say nothing further about the decision of the E.A.T. because that was entirely a matter for them to decide at that time.  We simply mention it because it is part of the background to the matter with which we do now have to deal, and that is the application for costs made by the Respondents in these circumstances.  What has happened is that by 9 March 1995, as appears from documents that we have been shown today, the Respondents were seeking to put an end to this appeal over this very small amount of money by offering to pay the sum of money in full, with which the appeal was concerned, namely £378.46, and that there then began a long series of correspondence from which it can be seen that the employers, Artix Ltd, were repeatedly tendering their cheque in settlement of the matter and the attitude being taken by the Appellant was that he was not prepared to accept their cheque. 

	It is clear from the correspondence, in our judgment, that what was concerning him was the matter that we have already referred to, relating to the other entirely separate ground of appeal from that which he was given leave to proceed with, namely the matter of the refusal of the adjournment by the Chairman.  It is plain, in our judgment, from the correspondence that that has been influencing his conduct of the present matter.  It was only a day or so ago that he finally accepted the two week's compensation in these terms:

	"I am prepared to accept the two weeks compensation currently on offer as an interim payment, pending my appeal to the court of appeal."...

The result of all that is that the Respondents have been put to a great deal of legal costs in having to prepare the single ground of appeal in respect of which the Appellant was given leave, namely concerning the two weeks pay.  In our judgment if the Appellant was aggrieved and upset, as he plainly was, by the decision of the Industrial Tribunal in the first place and the E.A.T. in the second place not to give him leave to pursue the other ground of appeal, his remedy lay in seeking leave from the E.A.T. for leave to appeal against its decision, which application should have made within seven days of the decision made in January 1995, and if such application had been refused, he should have proceeded to go to the Court of Appeal and apply for leave to appeal against the decision of the E.A.T. in respect of that ground of appeal.  He took neither step but instead conducted his campaign in relation to that matter in the course of correspondence relating to this other matter, this separate ground of appeal relating to the two week argument namely the narrow legal argument as to whether the employers were justified in setting the ex-gratia payment against the two week's compensation.

	It is in those circumstances that we have had to deal with the matter today.  First of all, we certainly take the view that the single ground of appeal, which is the only one before us, should stand dismissed.  We so order.  The Appellant has made clear he has no intention of arguing the point before us today.  He has no wish to argue the point, so that we do not need to go into the law on that particular aspect of the matter.  We are quite satisfied that the appeal should be dismissed.  

	We have then to consider very carefully a matter which has troubled us, namely whether we should make an order for costs against the Appellant.  It is quite clear that the general principle is that costs are only awarded in exceptional cases and not as a matter of course.  In the E.A.T. the exceptional grounds are where the E.A.T. considers that any proceedings were unnecessary, improper, or vexatious, or that there has been any other unreasonable conduct in conducting the proceedings.  We have a power, if we think it does fall within that exceptional category, to order the party at fault to pay the other party the whole or part of the costs, in connection with the proceedings under The Employment Appeal Tribunal Rules 1993.  Where costs are awarded, they may be assessed, we have got the power to assess them ourselves, or they can assessed by a Taxing Officer on our direction.  That is under Rule 34(2) of the Rules.  We have the power to assess the costs as we interpret the Rules.

	There are cases cited on what is unreasonable conduct in Harvey at 1697.  An example is where it is quite unreasonable to pursue an appeal in the light of an offer that has been made.  In our judgment that applies here because ever since March 1995 the Respondents have been ready and willing and anxious to pay the full amount of money that is in issue, in relation to this sole ground of appeal.  In our judgment, the conduct of the Appellant in really attempting to re-litigate before this E.A.T. the other ground of appeal, under the pretext of keeping this sole ground of appeal on foot, amounted to vexatious conduct on his part.  We repeat that there was a perfectly good remedy open to him, namely to have applied for leave to appeal to the E.A.T. and if necessary, to the Court of Appeal.  So that in those circumstances we do consider that this is one of those exceptional cases where we can and should make an order for costs.  
	The matter does not end there because we must look at the means of the Appellant.  He is not here today, there is no evidence placed before us that he is in any way at all of substantial means, indeed we would assume quite the opposite.  Therefore that is a factor which we must take into account, namely his ability to meet any such order.  We would not order costs in terrorem in order to try and get the Appellant to drop the matter against the Respondents.  That would not be at all a proper reason for our making an order for costs.  We put that right out of our minds.  What we consider is the fair order here in the circumstances is that the costs should be assessed to amount to the sum representing the two weeks pay.  Accordingly, we propose to order that the Appellant pay an assessed sum of £378.46 towards the Respondents' costs of this appeal.