Appeal No. EAT/1350/01 RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 December 2002

Before
MR RECORDER LUBA QC
MRS M McARTHUR
MR D NORMAN

MRS O OBASA	APPELLANT

LONDON BOROUGH OF ISLINGTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MRS O OBASA
(the Appellant in Person)	
For the Respondent	MR TIMOTHY BRENNAN
(One of Her Majesty's Counsel)
Instructed by:
London Borough of Islington Legal Services
Town Hall
Upper Street
London N1 2UD	

MR RECORDER LUBA QC

1	On the afternoon on Monday 16 December 2002 I sat with Mrs M McArthur and Mr D Norman to consider this appeal relating to two decisions of the Employment Tribunal given respectively on 5 September 2001 and 27 September 2001.

2	The Appellant appeared in person and made submissions developing her Amended Grounds of Appeal (dated 6 August 2002) and her Skeleton Argument of 5 December 2002.

3	The Respondent was represented by Counsel (Mr Timothy Brennan QC) and solicitors. Mr Brennan made submissions developing his Skeleton Argument of 27 November 2002.  We heard submissions from the Appellant in reply. 

4	At the conclusion of the oral submissions, we retired to consider our decision. After deliberating and having reached a unanimous decision, we returned to the courtroom and I delivered our ex tempore judgment dismissing the appeal.

5	The Appellant made an application for permission to appeal to the Court of Appeal that we considered but refused.

6	Subsequently a transcript of the judgment was requested.  Although the judgment had been tape recorded, some form of mechanical failure has made it impossible to retrieve a recording of the judgment.  The judgment having been delivered immediately on the conclusion of our deliberations it had not been reduced by me to writing in either manuscript or computer record form.  Notes of the judgment made by the parties are seemingly not available.  In particular, neither the Respondent's counsel's note nor his solicitor's note is available.
7	With the benefit of my notes of the submissions and with the papers that were before us on 16 December 2002, I have been able to refresh my memory of the case and the reasons that we gave in the judgment for dismissal of the appeal. I have a clear recollection of those reasons. They were as follows:- 

(1)	Decision of 5 September 2001

8	The Employment Tribunal had adjourned a hearing scheduled to commence on 5 September 2001 when the Appellant had failed to appear on that date and her representative had applied for an adjournment.  For the reasons that it gave, the Employment Tribunal found that there had been unreasonable conduct by the Appellant that had caused the hearing to be adjourned and it ordered her to pay costs assessed at £1000.

9	Two grounds of appeal were pursued. In summary they were: (1) that the costs order ought not to have been made without enquiry as to the Appellant's means and (2) that the order ought not to have been made without giving the Appellant an opportunity to give her account of the reasons for her non- attendance on 5 September 2001.

10	On the first ground, we were satisfied, in the light of Kovacs v Queen Mary and Westfield College [2002] EWCA Civ 352, [2002] IRLR 414, that there was no obligation on an Employment Tribunal to enquire into means before making a costs order. The Tribunal had committed no error of law in this case in not doing so. 

11	On the second ground, we were not satisfied that the Employment Tribunal had erred in law, on the facts of this case, in making an immediate order for costs.  Most particularly given that the Appellant had been represented on 5 September 2001 and her representative had been provided with a full opportunity to explain (a) the Appellant's non-attendance or (b) the failure to forewarn the Tribunal or the Respondent of any difficulty on the Appellant’s part. 

(2)	Decision of 27 September 2001

12	 On 5 September 2001 the Employment Tribunal had directed the Appellant to show cause in writing why her Originating Application should not be struck-out on the basis that her non-attendance demonstrated that she was not prosecuting her claim.  The Appellant made representations by letter in response to that direction accompanied by supporting documents. The Employment Tribunal reconvened and considered those.  For the reasons that it gave, it dismissed the Originating Application for want of prosecution. 

13	The Appellant contended that no reasonable Employment Tribunal properly directing itself to the background facts and the material contained in her written representations (and supporting documents) could have reached the conclusion that she was not prosecuting her claim.

14	We were not satisfied that the Appellant had met the high threshold necessary to demonstrate that the Employment Tribunal's exercise of discretion had been perverse.  We were satisfied that, on the material before it, the Tribunal had acted within the scope of the discretion that it had to strike out the Appellant's claim.

15	For those reasons we dismissed this appeal.