Appeal No. UKEAT/0281/15/DA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 9 February 2016

Before
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
(SITTING ALONE)

MR G YAGOMBA	APPELLANT

AXA UK PLC & 16 OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR GEORGE YAGOMBA
(The Appellant in Person)	
For the Respondents	MS CAROL DAVIS
(of Counsel)
Instructed by:
Mayer Brown International LLP
201 Bishopgate
London
EC2M 3AF

SUMMARY
PRACTICE AND PROCEDURE - Withdrawal
PRACTICE AND PROCEDURE - Costs

A late withdrawal of an appeal that became academic some time before the hearing, led to costs applications by both sides.

The Appellant’s costs application failed.  The Appellant’s conduct in pursuing the appeal after it had become academic was unreasonable.  He was ordered to pay a proportion of the costs claimed by the Respondent.

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

1.	Mr Yagomba, the Appellant (but referred to as the Claimant), appears in person and seeks to withdraw his appeal listed for a Full Hearing today.  He says he no longer wishes to pursue the substantive appeal, accepting that since the individually named Respondents to his second Employment Tribunal claim have served ET3s the appeal is academic.  However, that does not bring matters to an end, because both he and the First Respondent seek costs against each other in respect of the appeal.  So far as concerns the Claimant’s application to withdraw his appeal, I accede to that application and permit withdrawal.  I turn therefore to consider the question of costs.

2.	The applications for costs are made pursuant to Rule 34A of the Employment Tribunal Rules 1993.  By sub-paragraph (1) the Appeal Tribunal can in any proceedings where it is said that the proceedings are unnecessary, improper, vexatious or misconceived or where the conduct of a party in the bringing or conducting of proceedings has been unreasonable, make a Costs Order against the paying party.  The Rules make clear at Rule 34B that the amount of a Costs Order can be dealt with in one of three ways - either by the Appeal Tribunal specifying a sum to be paid, by the parties themselves agreeing that sum, or by the Appeal Tribunal directing a detailed assessment of costs - but that provision is subject to sub-paragraphs (2) and (3).  Sub-paragraph (2) provides that the Appeal Tribunal may have regard to the paying party’s ability to pay when considering the amount of a Costs Order, and sub-paragraph (3) deals with matters not relevant here.

3.	The Claimant submits that the Respondents have behaved in a manner that is both misconceived and unnecessary and their conduct has been unreasonable in relation to the appeal.  In essence, he contends that the original strike out application made by the Respondents in respect of his second claim was bound to fail and amounts therefore to unreasonable conduct.  Secondly, he contends that when the Respondents received the Notice of Appeal they should within a reasonable period have given notice that they intended to serve ET3s on behalf of the individually named Respondents, particularly knowing that he was then investing time and money in prosecuting his appeal when it might not have been necessary to do so.  Indeed, he submits that they did not give that notice until 7 January by which time he had already incurred significant expenditure preparing and copying bundles of documents and producing a skeleton argument for the substantive appeal.

4.	The Respondents resist that application, which they say is itself misconceived.  Ms Carol Davis contends first, that the appeal by the Claimant should never have been brought in the first place; secondly, that the extension of time granted by the Employment Tribunal in relation to the individually named Respondents’ ET3s would have been reconsidered in any event by the Tribunal in accordance with the direction given by letter dated 18 June 2014, making the appeal redundant and/or premature; moreover, thirdly, there was a stay in place at the Claimant’s request between July 2014 and 30 November 2015 so that there has been no delay and nothing would have occurred in that period in any event; and, finally, fourthly, there was no obligation on these Respondents unless and until the strike out application had been determined or some other Order had been made by the Tribunal replacing that Order, to serve ET3s.  That was done in a pragmatic way in order to try to avoid the need to have what was regarded as an unnecessary, premature and misconceived appeal.

5.	Separately, the First Respondent pursues costs against the Claimant, on the basis of his unreasonable conduct: the history of the proceedings below demonstrates that this appeal was premature and unnecessary.  The Respondents in their Answer to the Claimant’s appeal made clear from the detailed chronology set out that the appeal was inappropriate, premature and misconceived and that the question whether the Respondents should have an extension of time in respect of their ET3s was still a live question due to be determined by a Tribunal at a Preliminary Hearing.  The First Respondent’s Answer responded to each and every point made by the Claimant in his Notice of Appeal demonstrating why the arguments were premature and misconceived and, referring to the expense wasted by the appeal proceedings.  That was done, Ms Davis submits, in order that the Claimant could consider the sense of proceeding and take steps to bring the appeal to an end.

6.	Moreover, she submits that if it was not clear on receipt of the First Respondent’s Answer to the appeal, by a letter dated 7 January, their position so far as the appeal could not have been made clearer to the Claimant.  In that letter, Mayer Brown - solicitors acting for both the First Respondent and the 16 named individuals - made clear that they were going to be in a position to file ET3 forms for all Respondents including the individuals, by no later than 15 January 2016.  They would proceed, they said, with the strike out in respect of the claims and the ET3s would be served without prejudice to that application.  The letter explained that whilst not obliged to file any defence to the claim until 28 days after the strike out application had been determined (as provided for by the Tribunal’s Order below), they wished to avoid the need to attend and incur further costs in relation to the appeal hearing scheduled for 9 February 2016.  Having previously set out their clients’ position that the appeal was unnecessary and premature given the reconsideration request the Claimant had made which was due to be considered in any event, they explained their wish to ensure that what would otherwise be a redundant appeal hearing should be vacated as soon as possible to save time and costs.  Given the impending deadlines for filing documents in the EAT, they invited confirmation by 11 January of the Claimant’s agreement to vacating the appeal so that a joint application to that effect could be made without further costs being incurred.

7.	Ms Davis submits that therefore at the latest by the date of that letter the Claimant should have realised that the appeal would be academic and to pursue it thereafter would be wholly unreasonable once ET3s had been served.  The Claimant rejected that request, and in subsequent correspondence stated that he would only agree to vacate the appeal if the Respondents agreed to conditions that he could not have hoped to obtain within the appeal process, even if successful.  On that basis, in light of the letter of 7 January, the pursuit of the appeal notwithstanding delivery and service of ET3s was unreasonable and has caused the Respondents to incur wholly unnecessary costs in preparation for this appeal and in dealing with it since that date.

8.	In response to the Respondents’ application the Claimant accepts that he did seek to attach a condition to agreeing to withdraw his appeal by reference to an agreement that the Respondents would not pursue a strike out application that he cannot now justify.  He says, nevertheless, that he is a litigant in person not experienced in how appeals are withdrawn.  He consulted the Practice Direction, and says that he made clear that he was prepared to agree to withdraw the appeal if his costs could be agreed, and he relies on correspondence dated 4 and 5 February.  He says, moreover, that he had limited availability after 7 January.  Originally, he said that he was out of email contact.  He then accepted that he did have access to emails but they were difficult to read.  In any event, he contends there was merit in his appeal in his genuine belief and merit therefore in his costs application, so that he was entitled to say to the Respondents that he would not vacate the appeal unless his costs were agreed.  Finally, he raises his means, which I shall return to in due course, which are limited, and for all those reasons he says that he should not have to pay the costs.

Background
9.	Before setting out my conclusions in relation to the two competing applications and the responses to them, I set out briefly the chronology to this appeal.  The Claimant presented his first ET1 on 16 January 2013 following his dismissal on 17 October 2012 from employment with AXA Services UK Ltd on grounds of alleged fraudulent activity.  He alleged that he had been unfairly dismissed; and alleged breach of contract, unlawful race discrimination, harassment and victimisation by his employer.  Those claims were all denied and were due to be heard at a 15-day hearing on 1 September 2014.

10.	At a Preliminary Hearing on 8 November 2013 the Claimant applied for permission to amend to make allegations against named individuals.  He then withdrew that application, and although he had the opportunity to make the application again thereafter on a series of occasions when his case was listed for other interlocutory hearings, he did not take it up until sometime in 2014 when he sought to introduce new causes of action, to replace AXA Services UK Ltd with AXA UK plc and to add as named Respondents at least 11 of the named individuals who feature as named Respondents in his second claim.  He indicated initially that he would pursue those applications at a Preliminary Hearing in April 2014, but did not do so and instead raised them later by way of an application to amend, which was refused by the Tribunal for reasons given at the time including that the complaints were out of time.  

11.	The Claimant presented a second claim on 29 May 2014 against AXA UK plc as the First Respondent and 16 individuals (11 of whom had been referred to previously named Respondents).  The claim was initially rejected by Employment Judge Livesey by letter dated 2 June 2013, stating that the claim covered the same factual ground as the first claim, already listed for a 15-day hearing; and that although he had previously attempted to broaden and extend the scope of that claim those attempts had been unsuccessful (in Orders by Employment Judges Christensen and Harper on 24 July and 8 November respectively).  The Judge saw this as an attempt to circumvent those Orders.  The Judge held that the Claimant would be entitled to refer to the evidence as part of his first claim but was not entitled to pursue this second set of proceedings.

12.	That rejection was objected to by the Claimant, and by letter dated 6 June Employment Judge Livesey reconsidered the decision and granted the application, accepting the second claim in full.  Mayer Brown, then on record as acting on behalf of the First Respondent, applied by letter dated 11 June to strike out the second claim as an abuse of process and because it was out of time.  In addition, Mayer Brown applied for an extension of time for presenting Responses to the second claim until after the strike out application had been determined.  The letter said in terms that the application was made on behalf of the First Respondent and the individually named Respondents.

13.	The Claimant objected to that application by letter dated 11 June.  He sought explicit confirmation that Mayer Brown were instructed on behalf of the individually named Respondents, and, objected to the strike out application being heard because the new Tribunal Rules - the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 - had been introduced in order to ensure that an initial consideration by an Employment Judge would only occur after service of both claim form and Response.  Mayer Brown responded confirming that they were currently instructed by AXA UK plc and in emails that followed (on the same or next day) made clear that they had yet to file notice of acting in relation to the 16 individual Respondents but those individuals had all been notified of the application and the fact that no notice of acting had yet been filed did not preclude them from making the application on behalf of all of the Respondents.

14.	The Claimant maintained his objection and invited the Tribunal to take account of the position so far as the individually named Respondents were concerned.  By letter dated 16 June Employment Judge Livesey granted an extension of time for service of ET3s by all Respondents until 28 days after determination of the strike out and directed that the strike out application be determined at a Preliminary Hearing.  The Claimant was unhappy with that decision and by letter dated 18 June requested a reconsideration.

15.	The Tribunal, meanwhile, by letter dated 19 June, notified the parties that there would be a Preliminary Hearing on 7 July, no doubt to deal with the strike out application.  Mayer Brown sought to reschedule that hearing because of availability difficulties.  On 24 June the Claimant made an urgent application, described as such, seeking a stay of the proceedings because the City of London Police had decided to conduct an investigation into what were described as very serious allegations of fraud against him.  By letter dated 27 June 2014 the Tribunal stated that the 7 July Preliminary Hearing would consider the Claimant’s application for a stay and whether the Claimant’s letter of 18 June should be treated as an application to reconsider the decision to extend time to present the ET3s by the Respondents and whether that application should be granted.  The Tribunal made clear that the strike out application would not be considered on 7 July.

16.	By letters dated 8 and 9 July Mayer Brown confirmed that they had full instructions and were acting on behalf of all 16 named individuals.  It was therefore clear at the Preliminary Hearing that had been adjourned from 7 July to a subsequent date, if it was not clear to the Claimant before, that if the ground for objecting to the extension of time sought by Mayer Brown in respect of the individual Respondents was that they were not officially or formally acting for those individuals, that argument was doomed to fail at the reconsideration hearing.

17.	There followed, by a letter dated 10 July, a decision by the Tribunal that the Preliminary Hearing would be re-listed but the Tribunal wished to investigate the position in relation to the City of London Police.  Having done so, by letter dated 23 July 2014.  The Tribunal directed that the proceedings should be stayed in light of the response received from the City of London Police, so that a stay was in place with effect from 23 July.  It was not until five days after the stay was ordered that the Claimant lodged his Notice of Appeal, on 28 July.  He did that in the knowledge that there was a stay in place so that nothing could happen and in the knowledge that there was to be, at least, a consideration of his reconsideration request in respect of the decision to extend time for receipt of ET3s for the individual Respondents, all of whom had by then instructed Mayer Brown to act on their behalves to pursue that extension of time application.  The stay remained in place until 30 November 2015, when it was lifted, and a case management hearing was listed for 22 April 2016.

18.	The Claimant’s Notice of Appeal was rejected on the sift but pursuant to Rule 3(10), it was considered at a hearing in October 2015 and allowed to proceed to a Full Hearing.  Accordingly, the Respondents were not notified of the appeal until after the Rule 3(10) Hearing and, having been so notified, put in their Answer dated 27 October 2015.  The Answer, as Ms Davis submitted, is a full and detailed Answer explaining in the clearest of terms why in the Respondents’ view the appeal was misconceived and premature.

Conclusions on the applications
19.	Against that background I reach the following conclusions.  I deal first with the Claimant’s application for costs.  It is a fundamental feature of the judicial system that academic disputes are not adjudicated upon and that disputes no longer requiring resolution between the parties are not pronounced on in an abstract way.  At least by 7 January when the Respondents made clear to the Claimant that they would be filing ET3s no later than 11 January, the Claimant knew that the appeal was or was likely to be academic since it concerned a challenge to the decision to extend time for serving ET3s by those Respondents.

20.	In those circumstances, whether or not the appeal had any merit in the first place it seems to me that it was plainly academic so soon as ET3s were served.  The Respondents were never under any obligation to serve ET3s, still less in circumstances where there was a stay of proceedings at the Claimant’s request between July 2014 and 30 November 2015.  Moreover the question whether there should be an extension of time was a live question due to be reconsidered by the Tribunal throughout.  In those circumstances, there is no justification for the contention that the Respondents should have notified the Claimant much earlier of an intention to serve ET3s and that this rendered the Respondents’ behaviour thereafter unreasonable.

21.	As for the contention that the Respondents’ strike out application was bound to fail, I strongly doubt that it was bound to fail, but that even if so, has no bearing on whether the Respondents’ conduct of the appeal was unreasonable.  For those reasons, I am not satisfied that there is anything in the Respondents’ behaviour that was either misconceived, unnecessary or unreasonable so far as concerns both their response to the appeal and conduct of it from 7 January onwards.  His application is accordingly rejected.

22.	Turning to the Respondents’ application for costs from 7 January, I am satisfied that the Claimant behaved unreasonably for the following reasons: 
(i)	The costs appeal was academic within a few days of 7 January.
(ii)	The Claimant was told repeatedly by the Respondents that the appeal was unnecessary and premature.
(iii)	By 11 January it was academic and the Respondents offered reasonably to pursue a Consent Order with the Employment Appeal Tribunal by which the appeal could be vacated so that the real issues between the parties could resume and be adjudicated upon.
(iv)	The Claimant’s letter of 4 February sought to attach unreasonable conditions to any Consent Order and unreasonably maintained the position that there were arguments that were capable of being dealt with on the appeal.  That is the only reasonable construction to be placed on the sentence in his letter where he suggested that it was reasonable to deal with the issue at the EAT hearing otherwise it would only have to be dealt with again after the Employment Judge ruled on the strike out.
(v)	The Claimant also behaved unreasonably in that his letter of 5 February failed to make clear that he was prepared to withdraw his appeal.  Again, that is the only reasonable construction to be placed on the sentence in which he refers to “if” there is nothing further to argue about on his substantive appeal.  The only reasonable reading of his letter is that he wished to maintain his arguments despite the fact that they were, as he now recognises, academic.  He did this notwithstanding the Respondents offer not to seek costs from him if he would agree to withdraw the appeal and vacate the hearing by 10.00am on Monday 8 February.

23.	For all those reasons, it seems to me that at least from 7 January the Claimant has behaved unreasonably in pursuing an appeal that centred on a question that was shortly to become academic and did become academic when the Respondents served their ET3s.  He continued to behave unreasonably thereafter and has continued to do so until this morning.  The result has been that the Respondents prepared for the appeal on the basis that the substantive issues remained in dispute.  Accordingly I am satisfied that the Respondents are entitled to an award of costs in the exercise of my discretion on this basis.

24.	The Respondents have provided a Schedule of Costs for the period from 7 January to 9 February, totalling £11,393.52.  The Claimant invites me to take account of his inability to pay.  He has provided me with benefit information covering at least the period from February 2015 to the end of this year.  He has also been in receipt of mortgage loan interest payment support and has produced a letter from Cheltenham Borough Council dated 28 September 2015, dealing with Council Tax support from October 2014 through to June 2015 at least.

25.	Those documents were not supplied in advance of this hearing but were obtained over the short adjournment once the Claimant raised the question of his means.  Over the short adjournment the Respondents carried out some research and have themselves obtained documents they say, at least, throw some doubt on the means question.  First, Ms Davis has produced a letter from the Claimant to Mayer Brown dated 16 November 2013 that states that he was not at that date claiming any benefits from any agency within the UK.  That is at odds with what the Claimant told me when he said his benefits started during 2013.  Next, she produced a letter dated 6 January 2016 addressed to Employment Judge Parkin, Regional Employment Judge for Bristol, excusing his attendance on 16 March 2016 because of a hearing in the High Court in Kenya involving:
“… a substantial intestacy case at the High Court in which his attendance as a beneficiary is compulsory having confirmed his availability on 14 December 2015.” 

26.	So far as that intestacy is concerned, the Claimant says it relates to a substantial property originally owned by his father, then by his mother, who has since died, and is to be divided between himself and his siblings.  He estimates his share to be around £150,000 but said that he has “signed out of” that intestacy in September or November 2015.  That assertion is put in doubt by the reference to him as a beneficiary in the letter dated 6 January 2016, and I was not provided with any rational explanation as to why he would “sign out” of the beneficial interest. 

27.	Ms Davis also produced evidence from the internet from Companies House in respect of a number of companies in which the Claimant appears to have active directorships.  One of those companies is called Madukha Tours and Safaris Ltd.  It has an active website, a Facebook page, a Twitter feed and the website is live so that access can be obtained today to an online booking form.  She submits that there is nothing to indicate either that the company is not trading and is dormant nor is there anything lodged at Companies House to indicate either of these things.  The Claimant’s response is that none of the companies identified are trading, or at least none has produced any income, and certainly he says Madukha Tours and Safaris Ltd is a dormant company.  He says he has no income and the benefit documentation speaks for itself.  DWP would have looked at this information and would not have granted him the benefits that he has absent a conclusion that he was entitled to them.

28.	The Rules do not require me to take account of the Claimant’s means but permit me to do so.  I find myself in a difficult position in reaching a conclusion as to whether means should be considered.  On the one hand, the Claimant has provided cogent evidence to show that he is in receipt of Employment and Support Allowance and other benefits.  I am conscious of the fact that he has had full fee remission in respect of this appeal process, which will have proceeded from some form of investigation of his means.  On the other hand, there is other material that causes me to have some doubt about this evidence as to his limited means.

29.	I have concluded that I should take account of the Claimant’s means; not in a way that will extinguish all liability to pay costs, but so as to cap the amount I am prepared to award in this case.  I reach that conclusion because while it may be the case that the Claimant does not currently have means by which to discharge any Costs Order, I am satisfied the material referred to affords evidence to suggest that he is likely to have means in future.  He may well develop business interests that are income producing and he has at least, a potential to benefit from the intestacy case in a significant way.  Moreover, he is a relatively young professionally qualified lawyer and there is every reason to think that he will obtain employment or the means by which to earn income in the future to discharge a Costs Order.

30.	A summary assessment of costs is conducted on an inevitably broad brush basis.  I accept that some of the costs would have had to be incurred in any event, in relation to correspondence and to achieving a Consent Order even if the Claimant had agreed to an Order when asked to do so.  On that basis and adopting a broad brush approach I consider that the Schedule should be reduced to £10,000.  I then have regard to the Claimant’s means and to all that I have indicated by reference to his potential to earn income in the future, and I cap the Costs Order at the level of £6,000.  The Claimant must accordingly pay, is £6,000 a proportion of the Respondents’ costs assessed on a summary basis.