Appeal No. EAT/0238/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 March 2002

Before
MR COMMISSIONER HOWELL QC
MS G MILLS
MISS D WHITTINGHAM

MR CLIVE WILLIAMS	APPELLANT

(1)  THE DEVON & CORNWALL CONSTABULARY	RESPONDENTS
(2)  THE DEVON & CORNWALL CONSTABULARY 
       WIDOWS, ORPHANS & COMPASSIONATE FUND

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C WILLIAMS
(Appellant in Person)	
For the 1st Respondent	MR N SMITH
(Of Counsel)
Instructed by:
Messrs Michelmores
Solicitors
18 Cathedral Yard
Exeter
EX1 1HE	
For the 2nd Respondent	MISS D GRENNAN
(Of Counsel)
Instructed by:
Messrs Wolferstans
Solicitors
Deptford Chambers
60-66 North Hill
Plymouth
Devon  
PL4 8EP	

MR COMMISSIONER HOWELL QC

1.	We have before us an application by Mr Clive Williams, the Appellant in proceedings against the Devon and Cornwall Constabulary and the Devon and Cornwall Constabulary Widows and Orphans Compassionate Fund which are listed for full hearing before us today, for an adjournment of the full hearing.  This application Mr Williams has made to us in person only this morning.

2.	We are satisfied that there had been no previous indication that this application was to be made, either to the Appeal Tribunal office or to those acting for the two Respondents, who appear before us today by Counsel Mr Smith and Miss Grennan; and there has been no attendance by any legal representative for Mr Williams before us today notwithstanding that he had and still has a solicitor Mr David Williams acting for him in this appeal and on the record.

3.	We express our displeasure at the late stage at which this application has been made and in the way it has been made, and at the failure of the legal representative on the record in the proceedings to attend before us at all: given that the original Notice of Appeal in these proceedings was dated 28 February 2000, the Ex Parte Preliminary Hearing giving directions for this hearing was as long ago as 26 June 2000, and that there was an extended delay in the lodging of an amended Notice of Appeal pursuant to the directions given at Preliminary Hearing, which did not eventually materialise until June 2001.

4.	As Mr Smith and Miss Grennan submitted to us, it is now March 2002 and ordinarily it would go without saying that it is far too late in the day for an application for a complete adjournment of the proceedings to be made.  The situation we are faced with is therefore highly unsatisfactory, but given the reality that as we are satisfied having heard from Mr Williams he is unrepresented and is himself unprepared to argue the case, which does involve at any rate one potentially quite difficult point of law, we have come to the conclusion that we really have not any real alternative but to grant the application and to direct that the full hearing of this appeal should be stood over to come on at another date.

5.	We hope that our granting this application will at the very least enable Mr Williams to take some realistic legal advice about the future conduct of his proceedings, and we wish to make it clear that no further application for an adjournment on similar grounds is likely to have any hope of success: so that on the re-listed date there is no doubt whatever that the Appeal Tribunal will be proceeding to hear and determine the case whatever the state of the representation at that time.

6.	Accordingly, we will direct that this appeal should be re listed for full hearing, with the existing time estimate of four hours, to come on to be re listed as soon as possible either before ourselves or before any other panel of the Employment Appeal Tribunal, since we have not begun to hear the merits of the case. We further direct that, Mr Williams not having complied with the directions on the preliminary hearing for lodging of a skeleton argument, a skeleton argument setting out the grounds on which he is intending to rely should be lodged with the Employment Appeal Tribunal office and copies supplied to those acting for the Respondents,  in any event within six weeks of today.

7.	The other matter we have to deal with is that both Mr Smith on behalf of the 1st Respondent and Miss Grennan on behalf of the 2nd Respondent made applications that the costs thrown away by this belated application for an adjournment should be paid by Mr Williams, on the ground that the way the matter had been dealt with amounted to unreasonable conduct in conducting the proceedings on this appeal. They referred us to the provisions of Rule 34 of the Employment Appeal Tribunal Rules 1993 under which we have a discretion to make an order for costs against a party who has either himself of by his legal representative been guilty of such conduct.  We are satisfied that, whether the fault here was that of Mr Williams himself or of his solicitor does not matter, there has indeed been unreasonable conduct in the way this appeal and this belated application has been dealt with and we are accordingly satisfied that this is an appropriate case for us to make an award of costs in favour of each of the Respondents under that Rule.

8.	We are also satisfied from figures given to us by Counsel on instructions that the costs thrown away so far as each Respondent is concerned in this case as a result of this adjournment are going to be substantial.  The figures given to us on instructions by Mr Smith who attended with his instructing solicitors today were that the 1st Respondent’s costs thrown away were expected to be of the order of £3500.  Miss Grennan, who appeared before us without the assistance of an instructing solicitor because the 2nd Respondent is a charity and is concerned to minimise costs, estimated the costs thrown away in her wasted attendance and the related instructions to her, to be not less than £1500.  In those circumstances we are satisfied that reasonable sums for us to award based on the figures given to us on instructions by Counsel are that Mr Williams should pay the sum of £2000 for the 1st Respondent’s costs and the sum of £1500 for the 2nd Respondent’s costs, and that is the order we accordingly make in exercise of our jurisdiction under Rule 34.