Appeal No. EAT/0182/03 RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 June 2003
Judgment delivered on 15 August 2003

Before
HIS HONOUR JUDGE J BURKE QC
MR P GAMMON MBE
MR D J JENKINS MBE

PROFILE ANALYSIS LTD	APPELLANT

MR S CASSIDY	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPLICATION FOR COSTS

Revised

	APPEARANCES

For the Appellant	MS NAZIA AFTAB
(Solicitor)
Instructed by:
The Endeavour Partnership LLP
Richard House
Sorbonne Close
Stockton on Tees
TS17 6DA	
For the Respondent	MR S K ELLIOTT
(Solicitor)
Instructed by:
Messrs Ward Hadaway Solicitors
Sandgate House
102 Quayside House
Newcastle upon Tyne
NE1 3DX	

HIS HONOUR JUDGE J BURKE QC

1	In a lengthy and detailed decision, promulgated on 25 November 2002, after a hearing over eight days, the Employment Tribunal sitting at Thornaby on Tees and chaired by Dr I J Watt, found that the employers, Profile Analysis Ltd, had constructively and unfairly dismissed the employee, Mr Cassidy.  They dismissed in part and allowed in part the employers’ breach of contract claims against Mr Cassidy.

2	By a Notice of Appeal dated 3 January 2003 the employers appealed against the Tribunal’s decision as to unfair constructive dismissal.  The appeal was on 21 January 2003 allowed by the Employment Appeal Tribunal to proceed to a full hearing; and the full hearing was fixed for 10 June 2003.

3	On 11 April the employers’ solicitors applied to the Employment Appeal Tribunal for permission to adduce new evidence at the hearing of the appeal; the application was opposed; one of the grounds of opposition was that the new evidence sought to be admitted was not related to the grounds of appeal set out in the Notice of Appeal; and on 21 May the employers’ solicitors sought leave to amend the Notice of Appeal to include grounds set out in the letter of 11 April (albeit that that letter does not contain grounds of appeal).

4	On 23 May the Registrar refused the application for permission to adduce new evidence.  On 30 May the employers’ solicitors wrote to the Employment Appeal Tribunal confirming that they were withdrawing the appeal.  The employee’s solicitors do not object to that withdrawal; but they have sought an order for their costs of the preparation of the appeal in the sum – which is patently a modest sum and one to which no objection has been taken – of £2,252.95.

5	We have been asked by the parties to determine the application for costs on paper; no doubt that is because the cost of appearing at the Employment Appeal Tribunal to argue the costs application would be disproportionate; and we are content to do so, having read the papers and the bundle submitted to us by the parties.

6	We can only award costs against the Appellant if any proceedings before us were unnecessary, improper or vexatious, or there has been undue delay, or unreasonable conduct in bringing or conducting the proceedings; see Employment Appeal Tribunal Rules of Procedure 1993 Rule 34 (1).

7	We have considered with care the written submissions of both parties and the documentary material placed before us.  While we note the history of the proceedings before the Tribunal, to which the employee’s solicitors have referred, we agree with their acceptance that that history is relevant only insofar as it is an indication of the employers’ general attitude to the litigation.  The employers’ conduct during the liability hearing was an effective cause of their failure at that hearing; much of their evidence was disbelieved for that reason and other reasons.  Their conduct in respect of the remedies hearing was dealt with by an award of costs.

8	We have primarily to consider the appeal to the Employment Appeal Tribunal.  We have considered the grounds of appeal and the Skeleton Argument in support of those grounds; and we accept, of course, that the employers were permitted to proceed to a full hearing of this appeal.  However, we do not regard the fact that the employers were allowed to proceed to a full hearing as of great significance; such a fact is not in the case of any appeal to be regarded as a safe protection against an award of costs at a later stage should Rule 34 (1) be satisfied.  Equally, we do not regard the fact that the appeal has been withdrawn as of great significance either.  Appeals may be withdrawn for many reasons which do not involve an acceptance that the appeal was wholly unarguable.

9	We have considered whether there was anything properly arguable in the appeal or whether it was so clear that there was not that the presentation or continuation to withdrawal of the appeal was unnecessary, improper or vexatious or otherwise amounted to unreasonable conduct.

10	Having considered the decision, the Notice of Appeal and the Skeleton Argument in support of it, we have concluded that, while it is very likely that the appeal would have failed if not withdrawn, it was not an appeal which so clearly had no merit that it should not have been commenced, or that it was unnecessary, improper or unreasonable to commence it.  No question of vexatious conduct or of unreasonable delay arises.

11	It is, as we see it, of some importance that the Employment Tribunal referred to a number of authorities which had not been cited to the Tribunal by either party (albeit there is some dispute as to the precise number of such authorities).  In the light of the employee’s answer and the comments of the Chairman, the employers’ point as to this may well have seemed less strong and more likely to fail; but there was a point to be ventilated which was, in our judgment, not plainly hopeless.

12	We are unanimously of the view that if the appeal had been argued on the grounds set out in the Notice of Appeal and the Skeleton Argument but had failed, we would not have regarded this as a case in which it would have been right to award costs.  We take the same view on the basis that the appeal has been withdrawn.

13	We have considered whether an award of costs would be appropriate in relation to the application to put in further evidence; but the evidence sought to be put in was, on the face of it new; we can understand the temptation before the employers to seek to procure its admission.  The employers’ solicitors got their procedure wrong; they should have drafted amended grounds of appeal either before or at the time of the application and sought leave for an appropriate amendment; but we do not regard the making of the application as falling within Rule 34 (1); and in any event only just over £100 of costs appear to have been amassed on the employee’s side by reason of that application.

14	Looking at the matter as a whole, we do not conclude that the procedures before us were unnecessary or improper or that there has been unreasonable conduct.  Accordingly we reject the application for costs.