Appeal No. EAT/1005/02/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 October 2002

 
Before
HIS HONOUR JUDGE D SEROTA QC

 

THE COMMISSIONER OF THE POLICE OF THE METROPOLIS	APPELLANT

 

 
MR L LOGAN	RESPONDENT

 
Transcript of Proceedings
 
JUDGMENT

 APPLICATION FOR COSTS 

Revised

 

 

 

 
	APPEARANCES

 

For the Appellant	MR P GOULDING QC
Metropolitan Police Service
Directorate of Legal Services
New Scotland Yard
Broadway
London
SW1H OBG
 	
For the Respondent	MS K MONAGHAN
(Of Counsel)
Messrs Christian Fisher
Solicitors
42 Museum Street
Bloomsbury
London 
WC1A 1LY	

HIS HONOUR JUDGE D SEROTA QC
 
1	On 23 September of this year, I allowed an appeal from a decision of the Chairman of the Employment Tribunal and stayed the hearing of the Applicant’s complaint against the Commissioner of Police until after the determination of criminal proceedings against Dr Dizaei.  The circumstances in which that application came before me, and my reasons were given in the detailed judgment I gave at the time, and in due course the parties will have the corrected transcript  I do not therefore intend to rehearse matters that are set out in my earlier judgment, but I have today to deal with an application for costs made by the Applicant, related to the delay in making the application for the adjournment, and also to some extent, the costs incurred by reason of the failure of the Respondent to place the material concerning prejudice to Dr Dizaei’s trial before the Chairman of the Employment Tribunal.  
 
2	Before I deal with the merits of the application, I need to consider firstly whether I can make an Order in favour of Mr Logan, whose costs are being borne by the Police Federation.  I have seen correspondence from the Respondent’s solicitors to the Applicant’s solicitors, Messrs Christian Fisher in which they were invited to explain the basis upon which they had been instructed by Mr Logan, but no sufficient response has been given.  
 
3	Mr Goulding relies upon the judgment of Mr Justice Mummery, as he then was, in the Employment Appeal Tribunal in the case of Colley -v- Corkindale in which Mr Justice Mummery records that the Employment Appeal Tribunal in that case were unable to make an award for costs, even if they thought in their discretion it was appropriate because, on the facts of that case, the applicant’s costs were being met by the Paisley and District Unemployed Community Resource Centre, with no liability being placed upon the Applicant.  
 
4	The decision in that case is no more than an example of the well-known indemnity principle, that until the CPR was an essential part of the regime as to costs, a party is only entitled to recover those costs which he has actually incurred, or for which he might be liable.  That principle is set out in a number of cases.  I have to say that I was somewhat surprised that the point was taken by the Applicant.  I drew attention today to a decision in the Queens Bench Division, in the case of Miller -v- Glennie, a decision of Mr Justice Lloyd, sitting with the Chief Taxing Master as an assessor and a solicitor, Mr Lawrence, in which he reviewed all the relevant authorities.  There are further authorities referred to in the White Book.  The principle, as I understand it, is that indemnity principle precludes a party from recovering costs for which he is neither responsible nor liable.  
 
5	However, where costs are incurred by a party, if he is responsible or liable for those costs, even though they are in fact paid by a third party, whether an employer, insurance company, motoring organisation or trade union, and even though the third party is also liable for those costs, it is only where it has been agreed that the client shall in no circumstances be liable for the costs, but they ceased to be incurred by him.  
 
6	It is also apparent from that case that the burden of proof lies with the receiving party to show that solicitors acted on his behalf.  Once that is shown, a presumption arises that the receiving party is to be personally liable for the costs.  That presumption can be rebutted if it is established that there is an express or implied agreement binding on the solicitors that the receiving party would have not to pay those costs in any circumstances.  
 
7	In the instant case, it is clear that Christian Fisher are acting on behalf of Mr Logan, on his instructions.  I am not able to draw an inference as suggested by Mr Goulding, that because Christian Fisher has failed, so as to speak, to come clean, it has something to hide.  I hope I am not being unduly cynical, but as I put to Counsel during the course of their submissions, I can only assume that had Christian Fisher’s attention been drawn to the relevant line of authorities, the Respondent would have received the appropriate and anticipated response, namely that although the Police Federation were meeting the costs, Mr Logan was regarded as the client and would, at least theoretically, be liable for the costs if not met by the Federation.  Ms Monaghan candidly conceded to me that she had not come across the line of authorities to which I have referred, as is indeed is quite apparent from her Skeleton Argument.  
 
8	In all the circumstances of the case, I cannot see that this case differs in any way from the ordinary case in which a trade union supports litigation of one of its members, and it is well established in those circumstances that where an Order for costs is made in favour of the member, he is entitled to recover those costs on the basis to which I have referred.  I am satisfied, therefore, that, subject to the exercise of my discretion, I can make an Order for costs in favour of Mr Logan.
 
9	I now turn to consider the merits of the application.  My power to make an Order for Costs is derived from Rule 34(1) of the Rules of the Employment Appeal Tribunal, and I have the jurisdiction to make Orders for costs where proceedings were unnecessary, improper or vexatious, or where there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings.  I feel bound to say that when it came to the exercise of my discretion, having been appraised of the material facts, it seemed to me that there was only one conclusion to which I could come, namely that the hearing of the application had to be stayed.  
 
10	When one looks at the ET1, it is clear that there may be a risk of prejudice.  For reasons I set out in my judgment of 20 September, the fact that there might be such prejudice was clearly recognised early on by the Respondent, as is apparent from its letter of 22 February in which it reserved the right to apply to the Tribunal for a stay of the proceedings, should it become necessary to do so, in order to avoid prejudice to the pending criminal proceedings against Dr Dizaei.  
 
11	Witness statements were received on 12 August.  Regrettably, they do not appear to have been considered in detail by anyone on behalf of the Respondent until 13 September or thereabouts.  One only has to glance at those statements to see that the risk of prejudice to Dr Disaei’s trial is manifest.  I am inclined to accept that it may not reasonably have been apparent between 12 and 13 August to the Respondent, but in my opinion, it should have become apparent within no later than one week of the receipt of those witness statements.  I have no doubt that had those statements been considered as they should have been, with care, an immediate request should and would have been made for an adjournment on the very grounds that I acceded to in September.  
 
12	The problem was compounded by the unfortunate failure of the Respondent to send the correct draft of Mr Goulding’s letter to the Employment Tribunal, which meant that the Chairman of the Employment Tribunal never considered, and was never in a position to consider, the grounds upon which I acceded to the decision to adjourn the hearing.  I regret to say that I have to characterise the conduct of the Respondent in failing to deal with the matter promptly as unreasonable, as I would also have to characterise its failure to send the appropriate letter, drafted by Mr Goulding.  
 
13	In the exercise of my discretion, therefore, I am minded to make an Order for Costs.  I am not able to accept Mr Goulding’s submission that no costs have been thrown away, and that very little could have been done in any event, prior to the date when application was in fact made.  I take into account Mr Goulding’s submission that in seeking an adjournment, the Respondent was acting in the public interest, that is a matter of significance, and in some cases it might be appropriate for that factor to weigh heavily in determining whether or not an Order for Costs should be made, under Rule 34(1).  However, in this particular case, the Respondent was in a peculiar position, as it was, in effect, the prosecuting authority, although I know the prosecution is conducted by the Crown Prosecution Service, but it was in effect the prosecutor, and was clearly aware of, and considered itself to be under a duty to protect the integrity of Dr Dizaei’s criminal trial.  In all the circumstances, therefore, I consider it appropriate to make an Order for costs.  
 
14	However, the next question that needs to be considered is what costs have been wasted by the unreasonable conduct that I have described.  I consider that the appropriate Order is as follows: the Respondent should pay the costs of this appeal and of the application to adjourn, and other costs thrown away, insofar as those costs are attributable to firstly, the delay in making the application after 20 August, and, insofar as they relate to the failure to place the appropriate grounds before the Employment Tribunal, I make clear, for the benefit of whoever is responsible for the detailed assessment of those costs, that had this matter been fully ventilated before the Employment Tribunal, it is likely that the Employment Tribunal would itself have adjourned the hearing due to commence on 23 September.  
 
15	I direct that those costs, if not agreed, should be the subject of detailed assessment in the appropriate County Court.  Again, I wish to express my gratitude to both Mr Goulding and Ms Monaghan, and I hope they will accept my apologies in having brought them to Milton Keynes.  
[ Correction  in transcript - date of hearing  23 not 20 September]
 
Ms Monaghan, as I do not have an associate from the EAT here, would it be an imposition if I were ask you and Mr Goulding to be kind enough to draft a minute of the Order that I have made?
Mr Goulding - is there anything else?
 
Sir, there is only matter perhaps I could just raise.  My understanding is that what often happens on the costs assessment is that the costs office or costs judge has before him all of the solicitors’ files and is often best placed to examine the precise nature of the arrangement between solicitor and client.  It occurs to me that it is conceivable that when the costs judge looks at Christian Fisher’s file he might, for example, see some correspondence establishing that Chief Inspector Logan was not under and circumstances to be liable for his costs, and I thought it may just be helpful if you could indicate that you do not preclude any such finding.
 
16	Yes, I think that is right because the only costs that are recoverable are, as I have indicated, if the burden is on the applicant to show that he is liable for the costs.  If he cannot, my judgment should be read as simply saying “I am not prepared to say, on the material before me, that he is not liable”.  The presumption is that he is, but no doubt there will be the usual care letter, which I believe solicitors are required to send to their clients, and no doubt if it is a matter which you choose to raise before the costs judge - where will these costs go in fact for assessment? 
 
In the Employment Tribunal, you go to the County Court do you not?  My judgment will need to be corrected again because I think it will go to the High Court, as it is a decision of the EAT.  
[to an appointed costs officer?]
If there is any problem in relation to this, would you be kind enough to come back to me.  I will give you permission to apply.  
I will add this to my judgment - my judgment should not be taken as amounting to a finding that Mr Logan is liable for the costs incurred on his behalf.  I have done no more than to hold that I am not satisfied that he is not liable, and, of course, he is only to recover, on a detailed assessment, those costs for which he is or may be liable, that is a matter which is invariably the subject of consideration by the costs judge.