Appeal No. UKEAT/0364/05/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 10 November 2005 

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR B E FARQUHARSON	APPELLANT

(1)	CENTRE WEST (LONDON) BUSES LTD
(2)	FIRST GROUP PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Written submissions by 
MR G ROWELL
(Of Counsel)
Instructed by:
Free Representation Unit
6th Floor
289-293 High Holborn
London WC1V 7HZ
	
For the Second Respondents	Written submissions by 
MR R S BAILEY
(Of Counsel)
Instructed by:
Moorhead James 
Solicitors
Kildare House
3 Dorset Rise
London EC4Y 8EN

Practice & Procedure:  Appellate Jurisdiction & Costs

A new point may not be taken before the Employment Appeal Tribunal which was not taken below unless exceptional circumstances require it.  In this case, an appeal as to the amount, but not the principle, of costs awarded, when this point was not argued when the case was reviewed, would not be entertained.  In any event, it is unlikely that if it were, it would stand any prospect of success.  

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about the assessment of costs following an undisputed finding that the Claimant in the proceedings, Mr Farquharson, had behaved unreasonably.  The sum at stake is £750.00 which, the Claimant submits, should be reduced by my substituting my own calculation to give a figure between £300 and £450.  By consent this is being decided on the papers.

2.	The appeal and the proceedings before the Employment Tribunal have been protracted and are out of proportion to the issues at stake.  It is now the Claimant’s position that the Tribunal cannot be faulted in its Judgment that he behaved unreasonably.  This was not, however, the way in which the case was put at a review hearing, which took place at my initiative when I invited the Claimant to make an application, albeit out of time.  

3.	The review was before a three person Tribunal chaired by Mr Metcalfe at Watford Employment Tribunal during what it described as a full merits review.  The Tribunal confirmed the original order of Mr Metcalfe sitting alone, but ordered that the award should not be enforced until the conclusion of related proceedings between the parties.  Those proceedings have been concluded.  The Claimant brought at least three claims before the Employment Tribunal.  In the only substantive Judgment on 6 July 2005, given by another Chairman, Mr V Adamson, all of the Claimant’s claims were dismissed.  He was adjudged to have conducted the proceedings unreasonably but in the exercise of its discretion, no order for costs was made upon the application of the Respondent.

4.	The sole issue before me on appeal is now the amount of costs awarded.  It struck me at the preliminary hearing of the Claimant’s case, where he was represented by Counsel, that the Tribunal  may have erred when it awarded the whole of previous Counsel’s brief fee when an interim hearing for directions had been adjourned because the Claimant failed to attend.  At that preliminary hearing before me, it was accepted that the Tribunal had jurisdiction to make the order but attention was focused upon the amount.  Since the whole of the brief fee incurred that day was ordered to be paid, and the hearing for directions was adjourned for five weeks, it was contended by the Claimant’s Notice of Appeal that preparation time was being paid twice.  It is common ground that in the Claimant’s second Notice of Appeal, issued under Rule 3 of the EAT Rules following initial rejection by the Registrar and by a Judge, the Claimant was there attacking the amount, as well as the principle, of the award. 

5.	In the Respondents’ answer and Skeleton Argument prepared by Counsel who attended at the aborted hearing in May 2003, the point is taken that at the review hearing, no issue arose as to the amount of costs awarded.  The Schedule of Costs presented to the Tribunal on that first occasion indicates payment of a brief fee of £750 to Mr Bailey who is Counsel of 1985 call.  The directions hearing was scheduled to last one hour and was to include routine matters of case management.  It was to cover the three claims which had, at that stage, been made by the Claimant and which were consolidated.  Mr Bailey’s Chambers are in the Temple, London and the hearing took place in Watford.  Although it was adjourned for five weeks, the hearing never took place because the parties came to terms but sadly the terms did not include any reference to the outstanding award of costs.  

6.	I accept the submission that an award under Rule 14 of the 2001 Employment Tribunal Rules which were then in place entitles a tribunal to award costs up to £10,000 on its own calculation.  The award is compensatory and should cover costs thrown away: Cooper v Weatherwise (Roofing & Walling)  Ltd [1992] UKEAT/562/92/0710.  I also accept that included in the brief fee is preparation time, and that in principle a case postponed will not require a complete preparation afresh, at least if Counsel remains the same and the distance in time is not long.  I also accept that the brief for a trial, and certainly a trial lasting more than a day, could not be the measure of compensation where the start of the trial was postponed.

7.	However, this was merely a directions hearing.  Counsel was required to travel.  Preparation time had been incurred by solicitors, which was not claimed.  The total preparation time by those solicitors for the three cases brought by the Claimant as at that date, was £3,084 to which VAT would be added.  My own experience of directions hearings is that they usually proceed by way of a discussion on all sides and although an idea of the shape and length of the case and the likely issues will have been obtained by the parties prior to that, a good deal of the work is done at the directions hearing itself.  What is said on behalf of the Claimant is that £300 -  alternatively £450 – was charged to him in respect of preparation which would have been done, and put in the bank as it were, against the next hearing and that he should only be liable for the residue.  

8.	On behalf of the Respondent, it is contended that this is a new point and that consistent with the long standing jurisprudence of the EAT, a new point should not be allowed to be raised on appeal when it has not been ventilated below unless there are exceptional circumstances: Jones v Burdett School [1998] IRLR 521 CA.  I accept this submission.  The Claimant having himself lodged a fresh Notice of Appeal, the first having been rejected, it made plain that his objection was in part to the amount of the costs being awarded and that it included preparation time. That preceded, and was a matter which should have been put before the Employment Tribunal when it conducted, its three person review at the invitation which I gave to the Claimant for him to apply.  It is plain to me that the entire focus of the Tribunal on review was upon the principle of whether it was reasonable or not to award costs and not upon the amount.  This is not a simple question of law which I can resolve on the findings by the Tribunal.  There are no findings as to the split between the time Mr Bailey spent on preparation and on the hearing, the latter said to be wasted.  This would require a remission to the Tribunal for it to investigate the matter and to make a decision as to reasonableness and proportionality.  I refuse to allow the new point to be raised since it is not an exceptional case and therefore dismiss the appeal.  

9.	In any event, I consider that there would be little prospect of success in the appeal.  Given, as I have said that a one hour directions hearing will largely be a discussion of matters between the parties aiming at a pragmatic approach to the forthcoming proceedings, little preparation time would be involved and I would readily understand that a brief fee of £750 payable to Counsel of Mr Bailey’s experience would almost entirely be attributable to his travelling to Watford and his attendance and giving his skills to that hearing.  

10.	I would like to thank both Counsel for their written submissions.  The appeal is dismissed.