Appeal No. UKEAT/0047/04

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 19 October 2004

 
Before
THE HONOURABLE LORD JOHNSTON
MISS S B AYRE
MISS G B LENAGHAN

 

JONATHAN HAMILTON-JONES	APPELLANT

 

 
ANGUS BLACK	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr M McLaughlin, Solicitor
Of-
Messrs Biggart Baillie
Solicitors
Dalmore House
310 St Vincent Street
GLASGOW   G2 5QR

 

 
For the Respondent

 

 

 

Mr Angus Black
In Person
43 Keal Avenue
Blairdardie
GLASGOW   G15 6NY

 

 

 

 

 

 

 

 

SUMMARY

PRACTICE AND PROCEDURE

Costs – whether award should be made

 

 

 

 

 

 

 

 

LORD JOHNSTON:
 
1.	This case has a complicated history.
 
2.	The now respondent, as applicant, instituted proceedings before the Employment Tribunal against a number of parties, all of which were limited companies with the exception of the now appellant, who was originally stated to be the second respondent.
 
3.	When the case called for a hearing before the Employment Tribunal, there was no appearance for any of the respondents, it being subsequently established that the current appellant had not received notice of the proceedings.  Against that background the Chairman granted a review and a further hearing occurred on 23 May 2003 leading to a decision dated 11 July 2003 which inter alia declared that the now appellant never had been the employer of the now respondent, and, accordingly, should not have been in the process.  At a subsequent hearing dated 24 November 2003, leading to a decision in April 2004, the Tribunal made a monetary award in favour of the respondent against the non-compearing company respondents but refused an order for expenses in favour of the now appellant.  This appeal is taken against that latter decision.
 
4.	Mr McLaughlin, appearing for the appellant, submitted that the Tribunal had misdirected itself both on the question of whether the application was vexatious and also on the question of misconception since the Tribunal have proceeded on the basis that the respondent had a genuine belief that the appellant was his employer and thus had proceeded against that background.  Essentially, however, Mr McLaughlin’s position was that this contradicted the findings of the Tribunal at the previous hearing that the appellant had never been the employer of the respondent and there was no evidence to support this.  He referred to various documents which suggested that until the start of these proceedings the respondent had never represented that the appellant was his employer.
 
5.	Mr Black, appearing for himself, submitted that he had no relevant legal experience.  All his dealings had been with the appellant from the time he was originally asked to take on the employment in question, and, that, accordingly, he was entitled to make the claim, as far as we understood the position, that the appellant had been his employer.
 
6.	The problem for this approach is that it is effectively re-arguing the issue which was decided by the Tribunal against the respondent.
 
7.	Having said that, we understand why a layman without any legal experience dealing with a man who had a number of companies that he plainly managed by himself might not understand the true employment situation.  Insofar therefore as the Tribunal have held that the issue of issuing the proceedings was not vexatious, we would agree with that, since that word connotes a degree of malice or ulterior motive.
 
8.	However, when it comes to the question of misconception, the issue is entirely different and we would refer to our own decision in Hosie v North Ayrshire Leisure Limited EAT 8 October 2003.  The notion of misconception requires the Tribunal being asked to make an order of expenses to assess objectively whether the claim had any prospect of success at any time of its existence, and, by claim, we mean in this case, the issue of employment, and, particularly, whether the appellant was the relevant employer.
 
9.	The most cursory examination of the evidence as found by the Tribunal, and, indeed, an examination of the IT1, indicates that at no time save at the start of the these proceedings when the appellant was named the respondent, did the now respondent actually assert that the appellant was his employer.  There therefore seems to us to be no rational basis for the belief, even if generally held, that he was the employer and that the claim against the now appellant was misconceived from the outset.
 
10.	In this respect, therefore, given its own findings, we consider that the Tribunal Chairman has misdirected himself on this issue and his refusal of the motion cannot therefore stand.
 
11.	This raises the issue of what this Tribunal should do.  It is certainly not prepared to make an award of expenses since we consider that matter should be further heard against the general surrounding circumstances of the whole case, and, not least, what appears to be the fact that the appellant induced the respondent to work for his companies by maintaining or representing that he was the financial backer and would “bankroll” the companies or at least the work that the respondent was being asked to do.  This is a highly relevant question when it comes to whether it is equitable for any award of expenses actually to be made.  It also has to be borne in mind that the companies are now apparently insolvent owing the respondent a considerable sum of money as ordered by the Tribunal and that the respondent himself is out of pocket in relation to foreign trips on behalf of the appellant’s companies for which he has not been reimbursed.  These are all highly relevant considerations as to whether, notwithstanding the misconception of the approach in naming the appellant as respondent, expenses should in fact be awarded.
 
12.	12.              This Tribunal will therefore hold that the evidence discloses that the bringing of the application against the now appellant was misconceived, and, accordingly, the terms of the rule on expenses are satisfied.  Having said that however we propose to remit the case to another Chairman for a hearing as to whether any award of expenses should in the circumstances actually be made given all the circumstances of the case.