Appeal No. EAT/267/92
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3rd May 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR D A C LAMBERT

	MR A D SCOTT

P J BARLEY	APPELLANT

SERVICE DATA LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	No representation by or on 
behalf of the Appellant

For the Respondents	MR M KOLANKO
	(Of Counsel)
	Messrs Parkes & Co
	51 Bridge Street
	Andover
	Hampshire
	SP10 1BG

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal by Mr Peter Barley against the decision of the Industrial Tribunal held at Southampton on the 31st January 1992.  For reasons notified to the parties on the 26th February 1992 the Tribunal decided that the application for compensation for unfair dismissal failed on a preliminary point since Mr Barley did not have sufficient qualifying service as required by Section 64 of the Employment Protection (Consolidation Act 1978.  His claim had been made against the respondent to his application, Service Data Limited.

	On 6th March 1992 Mr Barley requested a review of the decision under Rule 10(1)(e) of the 1985 Industrial Tribunals (Rules of Procedure) Regulations.

	On the 11th March 1992 the Chairman of the Tribunal dismissed the application for a review.  His decision was sent to the parties on the 12th March 1992.  

	Mr Barley was disappointed with the failure of his application and with the application for review and accordingly, by a Notice of Appeal dated 3rd April 1992, he appealed against the decision of the Tribunal rejecting his claim for unfair dismissal.

	The matter was set down for a preliminary hearing to determine whether there was an arguable point of law raised by the Notice of Appeal.  That application was heard on the 5th May 1993 when Mr Barley appeared "in person" on the ex parte hearing.  The Tribunal decided to allow his appeal to proceed to a full hearing on the basis that an arguable point of law was raised.  Unfortunately, when it came to set down the appeal for the full hearing the Tribunal and the solicitors for Service Data Limited, Parkes & Co, were unable to make contact with Mr Barley. Neither the Tribunal, nor the solicitors for Service Data Limited, had received any communication from him.

	When the Respondents were notified of the hearing date they wrote to the Tribunal saying that as they had been unable to make any contact with Mr Barley, and, because they were reluctant to incur any expense in attending today's hearing, they did not intend to appear.  They asked, that if, as seemed likely, Mr Barley did not attend, the appeal should be dismissed.  If Mr Barley did attend without any warning, their request was that the appeal hearing should be adjourned to a suitable date for a full hearing.  In that way they hoped to avoid the unnecessary expense of representation.

	When the appeal came on for hearing this morning Mr Barley was not here and was not represented.  The Respondents were, however, represented by Counsel, Mr Kolanko. He was unaware, until he arrived here, of the letter that his solicitors had sent to the Tribunal.

	The appropriate course for us to take in these circumstances is, first, to dismiss the appeal, for want of prosecution.  It is not appropriate to express any view on the merits of arguments which we have not heard.  Secondly, the question of costs arises.  Mr Kolanko initially asked that we should make an Order, or consider making an Order, for costs, against the Appellant who had not bothered to pursue his appeal.  In other circumstances we might have been receptive to such an application.  In the light, however, of the letter sent by the Respondent's solicitors to the Tribunal on the 30th March, it is not, in our view, appropriate to make an Order for costs.  If Mr Barley had been here he would, no doubt, have objected to such an Order being made on the basis that Mr Kolanko's presence was not necessary in view of the letter of the 30th March.  It is not appropriate to make an Order for costs against Mr Barley in relation to the expenses that the Respondents may have incurred earlier on in this appeal, because the Tribunal held at the Preliminary Hearing on the 5th May 1993 that there was an arguable point. If, in the view of the Tribunal, there was an arguable point of law, it could not be said that the conduct of Mr Barley in pursuing the appeal fell within Rule 34 which enables us to order costs.  It could not be said that there was anything frivolous or vexatious or unreasonable or unnecessary in his bringing the appeal.

	In those circumstances we dismiss the appeal with no Order as to costs.