Appeal No.	 EAT/1509/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 February 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR P DAWSON OBE
MR T C THOMAS CBE

MR F C NECKLES	APPELLANT

YORKSHIRE RIDER T/A FIRST HUDDERSFIELD & OTHERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D IBEKWE
(Representative)
Public Transport (Staff) Consortium
31b Mervan Road
Brixton
London  SW2 1DP	
For the Respondent	MR C GRAHAM
(of Counsel)
Messrs Ford & Warren
Solicitors
Westgate Point
Westgate
Leeds LS1 2AX	

	MR JUSTICE MORISON (PRESIDENT):	In this case an appeal has been withdrawn and the question arises as to whether we should now order the Appellant to pay the Respondents’ costs arising out of the appeal.  The grounds on which the application for costs is made, is firstly that the appeal was wholly unnecessary and secondly that the conduct of the Appellant in advancing and continuing the appeal was unreasonable.

	In relation to the first submission, it was submitted that, in the circumstances, an appeal was wholly unnecessary as the issue to be determined on the appeal, was going to fall for consideration by an Industrial Tribunal which is going to proceed to hear certain matters next week.

	Secondly, and arising from the first, because that issue is still open for determination, there was a process already in motion by which the merits of the points raised by the Appellant could be determined.  Although it was initially submitted, that because there was an application for a review the appeal  perhaps was unnecessary, on due reflection Mr Graham, if I could use the word, conceded, very properly that that was not his best point.

	In relation to the maintenance of the proceedings, that is bringing them and maintaining them, it is submitted to us that there is no point of law raised in the Notice of Appeal, that even if there was a problem about what happened on 22 May 1998 to which I will refer in a moment, that was a question of fact rather than of law, that the Appellant is represented by Mr Ibekwe from a registered trade union and as a representative in that capacity is to be presumed to be able to represent his client’s interests competently.  This is a case where, throughout, the Respondents have been writing letters, making it plain that there was no merit in the appeal which was empty in their view, and that a question of costs would be raised.  The appeal was not withdrawn until the 10 or 11 February and that was late on in the day and it was submitted that it appeared that no particular reason was advanced as to why it was being withdrawn.  If it had not been withdrawn at the last minute, then costs which have been incurred would not have been.

	We can only decide this matter by reference to the background against which this appeal has been brought.  Mr Neckles was employed by First Bus Plc Kingfisher or Yorkshire Rider Limited trading as First Huddersfield.  He alleges and has brought three claims to that effect that he has been discriminated against, I use that word non-technically under s.44 of the 1992 Act.  He was subsequently dismissed from his employment and has brought a complaint arising from the dismissal alleging, amongst other things, that that dismissal was motivated by reason of his participation in a trade union.

	There was a hearing which took place before a Chairman of an Industrial Tribunal on 22 May 1998.  The learned Chairman was a Mr Hilderbrand and he has subsequently been taken ill.  There is a dispute as to precisely what happened on that occasion, but at least it is common ground that the three applications, which were the only ones extent at that time, were adjourned by consent with liberty to restore.  The basic reason why they were adjourned may be in issue.  On one version they were adjourned because the employers recognised the potentiality for Mr Neckles to be making a more substantial claim arising out of his prospective dismissal.  Thus if he were dismissed it was anticipated that a fourth application would be made which would be in one sense, much more substantial in terms of potential remedy than in relation to the other three.

	No order was drawn up following that Industrial Tribunal decision.  But subsequently a letter emerged from the Industrial Tribunal dated 25 August 1998 which was some three months later, which dealt with a letter which had been sent to the Industrial Tribunal à propos of the hearing on 22 May.  The letter reads as follows:
“.....
This [letter] has been referred to a Chairman of the Employment Tribunal who directs that:
“All three cases were adjourned generally with liberty to restore at the hearing on 22 May 1998.  This was because the applicant had not suffered any detriment at the time of the hearing.  This was by consent at the request of the applicants representative.”
We look forward to receiving your further application in support of the applicants claim for Unfair Dismissal.”

	It is not immediately apparent to us the status of this document of 25 August 1998.  As a result of further correspondence it appears that the unidentified Chairman was in fact Mr Hilderbrand.  Whether this document is to be treated as an order by the Industrial Tribunal or simply a commentary by an Industrial Tribunal Chairman as to what took place before him, is not clear.

	There was a further directions hearing before Mr Grazin, a Chairman at Leeds, who said that at paragraph 1.4 of his decision:
“1.4	After hearing representations by both sides on this matter, the Tribunal ordered that on the hearing of the substantive complaint of unfair dismissal, the Employment Tribunal do firstly decide, as a preliminary issue, whether by reason of the decision of 22 May 1998 the Applicant is estopped from pursuing three complaints,.......”

and that is the three complaints to which I have referred.

	With great respect to the Tribunal it is not at all clear what the decision is of 22 May to which they are referring, nor is it clear to us how a question of estoppel could arise on the basis of the letter of 25 August which I have recited.  It appears to us that at most, what has happened, if it happened, is that a representative of a party made “a concession” and would now wish to withdraw it.

	We understand that the parties have prepared themselves for a hearing of all four matters and that they will be in a position to embark on the hearing on Wednesday of next week.  Although it will ultimately be a matter for the Industrial Tribunal to decide for themselves, it does seem to us not likely to be a useful expenditure of time, to embark on the exercise contemplated by paragraph 1.4.  It would in the circumstances, as it seems to us, be preferable that they should embark on hearing the facts in relation to all four complaints and reach their conclusions on that basis.  Even if a concession had been made, as we have indicated, it would be entirely appropriate, if for example, it was made by a mistake, or there was some other reason to explain it, for a Tribunal to permit the concession to be withdrawn.  This is not, as it seems to us, a case where the doctrine of estoppel arises.

	It also follows that as a result of Mr Grazin’s endeavour to assist the parties, he now is, if paragraph 1.4 is to be pursued, not capable of sitting in this case, because he has discussed the matter with Mr Hilderbrand and it would be apparent bias were he to continue to sit having had a discussion with Mr Hilderbrand, to which none of the parties is privy.

	It also appears, no doubt in an endeavour to be helpful, that Mr Grazins sought from Mr Hilderbrand his notes relating to the hearing.  It does not seem to us that one Tribunal Chairman has the power to ask for notes of a hearing determined by another Industrial Tribunal Chairman.  The legal position is that if an order is made following a hearing, that represents the determination of the Tribunal which is binding on the parties unless it is set aside by the Employment Appeal Tribunal.  What the Industrial Tribunal did or did not take into account in arriving at its decision, is of no concern to the Industrial Tribunal which is going to continue with the case, who are bound by that decision.  If there is an appeal to the Employment Appeal Tribunal against the decision, then it may become appropriate to enquire into the question of notes of evidence, in order to see how a decision was arrived at, but under no circumstances, as it seems to us, should an Industrial Tribunal be enquiring of itself what happened before another Chairman, in seeking to inform itself about an issue which falls for determination.  

	It is the order of the Tribunal which is the determining factor, not what may have been discussed or otherwise.  Against that background, we have to say that we are entirely understanding of the concern shown by the Appellant in this case, which lead to the appeal being made.  It is a case which is in danger of becoming confused.  If the letter of 25 August is to be treated as a decision of a Tribunal, insofar as it purports to record a reason why the adjournment was granted, we can well understand why the appeal was made.

	It is always regrettable when an appeal is abandoned within days of the date listed for the hearing, but it seems to us that we should nor discourage parties from either settling their disputes or from withdrawing their appeals if on mature reflection they think that it would be better not to pursue them.

	In this case therefore, we are quite satisfied that it is unfair to say that the appeal was wholly unnecessary, and apart from leaving it rather to the last minutes, we do not regard the conduct of the Appellant as being unreasonable.  The fact that it was left to the last minute is a matter of some concern, but we are satisfied from what we have been told in this case, and in the exercise of our discretion, that the Respondents have not suffered undue costs as a result of the lateness of the withdrawal.  Mr Graham, the solicitor who is partly responsible for handling this case has not suggested to us that costs related to the aborted hearing were incurred after the date when they were told of the withdrawal, save for the purposes of appearing before us on this application for costs.

	In the exercise of our discretion therefore, we are not prepared to say that this is a case where the conduct of the Appellant has been such as to fall within the category which would entitle us to make an order for costs.  We therefore refuse to make such an order.

	In giving judgment in this way, we hope that we have given some guidance to the Tribunal as to how they might feel it appropriate to proceed.  That last thing that is wanted in this case is what might turn out to be a wholly academic exercise to be undertaken, which will no doubt lead to a further appeal here.  Accordingly, the application is dismissed.