Appeal No. UKEAT/0351/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 August 2007

Before
HIS HONOUR JUDGE McMULLEN QC
MR C EDWARDS
MR D G SMITH

MS A DUTT	APPELLANT

KINGSTON UNIVERSITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS A DUTT
(The Appellant in Person)	
For the Respondent	Written submissions 

SUMMARY
Practice and Procedure:  Postponement or stay / Costs 
The Employment Tribunal dismissed an application by the Claimant to postpone the (first) hearing, heard the case in her absence and dismissed the claims.  On a (second) hearing for Review, the case was reinstated but the Claimant was ordered to pay a contribution of £950 to the Respondent’s costs incurred at the first hearing.  The claims were subsequently dismissed at a (third) hearing.  EAT upheld the award.  There was in reality a postponement of the hearing from February to September 2005 and Rule 40(1) was permissibly applied.

HIS HONOUR JUDGE MCMULLEN QC

1.	This case is about Employment Tribunal procedure and the award of costs for an ineffective hearing.  The judgment represents the views of all three members.  We will refer to the parties as the Claimant and the Respondent.  

Introduction
2.	It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal sitting at London (South), Ms G Phillips, Chairman; Mrs S Maskell and Mr J Ellis, registered with reasons on 24 June 2005.  The parties were represented by counsel.  This is the hearing the subject of the appeal.  It is what we will call “the second hearing” when, on review, costs were awarded.

3.	The Claimant had originally claimed sex discrimination, unfair dismissal, harassment and race discrimination.  The Respondent denied the claims.  The case was tried by a differently constituted Tribunal at a hearing in September and December 2005 under the chairmanship of Mrs J Gilbert with Ms B C Leverton and Mr S Blake.  She withdrew the claim of sex discrimination. The Tribunal dismissed the other claims. That is “the third hearing”, the substantive hearing.

4.	On receipt of the judgment in its favour, the Respondent applied for costs on the grounds of unreasonable conduct.  The Tribunal dismissed that application for reasons given on 12 April 2006, that is “the fourth judgment”.  

5.	The first judgment concerns an original hearing of the claims in the Claimant’s absence when her claims were dismissed the first time around.  It is relevant to the second hearing which is the subject of the appeal.

6.	The Claimant appeals against an award of costs against her at the review hearing in the sum of £950.  Directions sending this appeal to a full hearing were given by Underhill J and members at a preliminary hearing where the Claimant had the advantage to be represented by counsel giving his services under the Employment Law Appeal Advice Scheme (ELAAS).

7.	At that hearing the grounds originally put forward by the Claimant were amended so that what constitutes the vehicle for today’s appeal are the Notice of Appeal which the Claimant submitted, but the grounds attached to it have been substituted by the document marked and initialled by the learned judge, and consisting of pages 65C and D.  

8.	There has been a good deal of correspondence and orders made this week but for reasons which I gave earlier the scope of today’s hearing is strictly confined to the issue of whether the Tribunal was correct to make the order of £950.  There is no scope for any further relief to be given to the Claimant such as compensation to her or an order for costs to be made in her favour.  

The legislation
9.	Tribunals have wide powers of case management and, in particular, have powers to deal with costs.  The costs regime is set out so far as is relevant as follows:
“38.  (7) A party may apply for a costs order to be made at any time during the proceedings. An application may be made at the end of a hearing, or in writing to the Employment Tribunal Office. 
40. (1) A tribunal or chairman may make a costs order when on the application of a party it has postponed the day or time fixed for or adjourned a Hearing or pre-hearing review.  The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.
(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply.  Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.”

10.	The Employment Tribunal directed itself by reference to paragraph 40(1) which was the basis of the application made on behalf of the Respondent.  Otherwise the material before the Tribunal consisted of a number of documents and statements.

The facts
11.	The first hearing was made pursuant to a Notice of Hearing following a good deal of interim disputes between the parties about documents and procedures.  The Claimant contended that she was unwell but on the day preceding the hearing, which was Monday, 21 February 2005, the Regional Chairman directed that an application for postponement should fail and the case would be heard, if necessary, in the Claimant’s absence. 

12.	The case came on on 22 February 2005, it was heard and the claim was dismissed.  No application was made for costs at that hearing.  

13.	The Tribunal fully set out the background to the case and to the possibility that the case should have been postponed for it said this:
“2.19	At 11.29 on Monday 21 February 2005, the Claimant sent a message by fax to the Tribunal saying, “I am very sick and unable to attend hearing. Please postpone hearing for another date. A copy of my medical certificate is being faxed”. A medical certificate was attached which was dated 18 February 2005 and indicated that the Claimant’ should refrain from work for one week due to stress and depression. Her request for a postponement was referred to the Regional Chairman, Mr Warren. Mr Warren advised that the postponement should be refused. He said that it was in the interest of justice that the case proceeded and that any delay in exchanging documents or witness statements appeared to be the Claimant’s responsibility. Messages to this effect were left with the Claimant and the Respondent on 21 February. Further attempts were made by the Respondent’s solicitors through email to contact the Claimant on the 21 February. The Claimant phoned the Tribunal (at about 14.30) on 21 February, when she was told that her postponement request had been refused. There is a file note, which records that,
‘She was very upset and said she could not get out of bed. She asked what she could do and was told that the Regional Chairman had seen her medical certificate that the case would remain listed and that the Chairman hearing the case tomorrow’ would have to decide how to proceed if she did not attend. She confirmed that she would not attend and that she would confirm the contents of the conversation in an email” Subsequently an email was sent (at 15.51) informing the Tribunal that “I collapsed on the evening of Friday ‘18 February 2005 and was subsequently bedridden. I was treated by my doctor on 18 February and :21 February 2005. My doctor advised me to refrain from all further works for at least one week and put me on special course of medication for the collapse. The related medical certificate was faxed to you on 21 February 2005. Under the circumstances, I am not well enough to attend the hearing tomorrow and regret any inconvenience caused.’

The hearing on 22nd February
3.	The Claimant was phoned on the morning of 22 February 2005 and asked if she was planning to attend the hearing. She referred to her email of the previous day and her medical certificate and said she could not attend because she collapsed “last Friday and am now bedridden”. The Respondent was informed, when the hearing commenced, of the position relating to the Claimant’s non attendance. Ms Smith, on their behalf, indicated that they were very surprised by the Claimant’s description of her state of health, as set out in her fax of 21 February, because there ‘had been ongoing email correspondence between them and her since Friday 18. They pointed out that neither the first nor the second postponement requests had requested a postponement on health grounds. They also referred to a copy of a doctor’s note that they had been sent (dated 9 February 2005) (document no 193 in the bundle of documents which they had prepared for the hearing and brought to the Tribunal). This note said that the Claimant had been seen on 2 February 2005 and a diagnosis of clinical depression had been ‘ made. It said that that Claimant had been started on anti-depressant medication, that it was difficult to prognosticate but improvement in symptoms was anticipated in two to eight weeks and that the Claimant would need to remain on medication for a further four to six months. The Respondent pointed out that this note did not say that the Claimant had ‘severe’ clinical depression (as she claimed in her letter of 17 February); nor did it refer her to a specialist nor did it deal with the Claimant’s ability to work or attend any hearing. They pointed out that they had still not received a witness statement from the Claimant; that there were still problems with exchanging documents and that they had still not had a schedule of loss. As far as the latest medical certificate was concerned, they pointed out that this did not say that the Claimant could not attend the Tribunal, nor was there any reference in it to her physical state of health. Ms Smith made reference to the cases of Teinaz-v-London Borough of Wandsworth [2002] IRLR 721 ‘ and Andreou-v-Lord Chancellors Department [2002] IRLR 728. She emphasised that a single diagnosis of stress and depression was not sufficient for the purposes of not appearing at the Tribunal. She referred in particular to paras 35, 41, 46 and 65 of the Court of Appeal’s decision in Andreou.”

14.	The Tribunal considered the legal authorities and submissions by the Respondent in the following terms:
“5.	Ms Smith pointed out that, given the refusal of the Regional Chairman to postpone the matter the day before, given that no further evidence had been advanced since then, it would be very unfair and unreasonable to the Respondent to now postpone the hearing, when they had been put to all the time, effort and trouble of turning up with their counsel and with their witnesses.
 6.	Ms Smith emphasised that there had been difficulties with the Claimant throughout the case with regard to documents and exchanging witness statements and that the Claimant had still failed to exchange witness statements or provide a schedule of loss in accordance with the Tribunal’s timetable.
 7.	Ms Smith submitted that, taking all these matters into account, it was fair, just and equitable to dismiss the Claimant’s case. She agreed that the Tribunal did have the power to hear the case in the Claimant’s absence and that a further option would be to postpone the case. Ms Smith relied on the guidance in Andreou and Teinaz to say that this would be a very inappropriate course of action in the circumstances.”

15.	The Tribunal addressed itself to the law and came to the following conclusion:
“10.	In the first instance, it was the unanimous decision of the Tribunal that it was not appropriate to adjourn the hearing. The Claimant’s medical evidence was in our judgment inadequate — there was no evidence that she was suffering from severe clinical depression (as she submitted in her letter of 17 February), there was no evidence that she was unfit to appear at the Tribunal (as opposed to work), there was no evidence that the Claimant was physically incapable of attending the hearing; notwithstanding that she said she had collapsed in the evening of 18 February and had revisited her doctor on 21st February no further medical evidence had been submitted. Further, an adjournment at this late stage would be manifestly unfair and unjust to the Respondent.
 11	Given the absence of the Claimant and the Tribunal’s decision not to adjourn the hearing, the Tribunal then had to decide how to proceed. We bore in mind the overriding objective and the fact that the Claimant was unrepresented. We nonetheless were of the unanimous opinion that in all the circumstances, this case should be dismissed.  In addition to the matters referred to above with regard to the adjournment, we took account of the following matters: we were aware that a relisting of this matter for a further four days would likely entail a postponement of several months. It was in our opinion unfair for the Respondent’s witnesses to have these allegations hanging over them for that further period of time. Further, the Claimant had failed to comply with the Tribunal’s Order relating to exchanging witnesses statements and providing a schedule of loss.”

16.	In those circumstances the Tribunal went ahead and at the end of the hearing when the claim was dismissed an indication was given by the Respondent that an application for costs would result.  Counsel then instructed did not have a full printout of the costs and the Respondent would exercise its right to make an application under Rule 38(7).

17.	However, the Claimant applied for a review.  She adduced new evidence.  A Chairman agreed that a review should be conducted on 16 June 2005.  The Claimant succeeded so that her claim was reinstated, as the Tribunal put it.  It was therefore back on track.  

18.	It is sufficient to know that on the new evidence the Tribunal, in the interests of justice, decided that the application for review should be allowed.  The Respondent’s counsel then made an application for costs.  This was under Rule 40(1) and the basis was that the adjournment or postponement had been caused primarily because the Claimant was not intending to turn up, had not informed the Respondent of that, and had not indicated what her state of health was.  

19.	The Tribunal’s judgment was this: 
“13.	The Tribunal’s judgment having considered the submissions of both sides on the question of costs was that this was a situation where the Claimant should make a contribution to the Respondent’s costs.  The effect of the Tribunal’s decision to allow the review was in effect that, at the request of the Claimant, they had retrospectively agreed to postpone the hearing on 22nd February. Further, in the Tribunal’s judgment, the Claimant had led the Respondent to believe that the hearing would be taking place on 22 February and to that extent the Respondent had been put to additional costs of turning up with Counsel and solicitors and their witnesses.  If the Claimant had indicated to the Respondent that she was not intending to appear, then no doubt the Respondents would have adopted a completely different approach. However, we also bore in mind the Claimant’s means and personal situation. Further, we did feel that it was a luxury for the Respondent to have present Counsel as well as two solicitors. That being the case balancing all these factors and bearing in mind that the hearing on 22 February lasted just over one hour, we felt that a fair and equitable amount for the Claimant to pay to the Respondent by way of costs was £950. We accordingly made an Order that the Claimant pay to the Respondent the sum of £950 in respect of the costs of the wasted hearing on 22 February.”

20.	In dealing with what counsel on behalf of the Claimant had said, it is noteworthy that it was focussed entirely upon the absence of any blameworthy conduct, see paragraph 12 of the Tribunal’s reasons.  But as we will indicate that is not the correct test.

21.	The case went on to be heard in September, this time over three days, there being a shorter set of claims.  At the fourth hearing the application then expressly made for costs under Rule 40(2) and (3) was dismissed.  The basis of that was unreasonable conduct and was not the vexatious, abusive or disruptive aspects of the two rules.  There has been no appeal against that judgment.  

The Claimant’s case
22.	The Claimant’s case as we have held it to be is set out in a very carefully drafted skeleton argument.  We have paid attention to what she says, bearing in mind that the background to this case is a history of anxiety and depression for which the Claimant is still being treated with medication.  In order to attempt to alleviate the stress which she obviously would go through at a hearing such as this we assured her we have read the skeleton and an additional document put in today commenting upon the Respondent’s stance.

23.	Her point is simple.  Since she was successful in shifting the dismissal of her case at the first hearing she should not be liable to pay any costs. As a matter of language, Rule 40(1) does not apply where the order made was to dismiss the claim but applies only where there has been an adjournment or a postponement.  She was not at fault herself because, as she proved in due course, she was at the time of the first hearing incapable of attending by reason of her illness.

24.	The Claimant acknowledges that the circumstances obtaining on the afternoon of 21 February 2005 required the Respondent to attend.  There was an order of the Tribunal setting up the hearing, application by the Claimant to postpone had been refused by the Regional Chairman and the Respondent had no alternative but to attend.

The Respondent’s case
25.	The Respondent’s case is simple, too.  It had been put to the expense of turning up on two occasions and the reality is that there had been a postponement of the hearing from February to September.  

Discussion and conclusions
26.	We have every sympathy with Ms Dutt in her approach to the problem in this case.  If the matter were to do with blame, as it was in the fourth hearing, where the criticisms are made of the Claimant, she would have a fair point.  As the evidence subsequently disclosed, she was unable to attend the first hearing and therefore was not at fault.  But that is not the solution to this case. 

27.	The rules are deliberately drafted in different terms.  The pejorative language for four situations appears in Rule 40(3) but is conspicuously absent in 40(1).  

28.	We also have sympathy with the approach of the Claimant, understandable in human terms, when she said she won her case for a review at the second hearing.  However, that is to misunderstand the function of a tribunal when making an order.  It is a feature of litigation that applications are made, succeed and yet costs are to be paid.  A classic example is where an application is made on the day of a hearing for it to be postponed. Costs have been incurred, there may be just reasons for the case to be postponed but the Respondent has been brought to the tribunal or a defendant to a court and it has incurred costs.  This rule is precisely to deal neutrally and without criticism with the resolution of the expenditure of costs.  

29.	As a matter of construction, we hold that Rule 40(1) was apt in this case.  Just looking at the history, there had been a postponement of the hearing of the Claimant’s case due to occur in February to September.  The precise mechanism by which it was postponed was an order dismissing the claim, that order was set aside on review, the claim became live and obviously could not be tried until the outcome of the review was known some time after 16 June 2005, and thus it was put back on the rails for hearing in September.  

30.	The Respondent has turned up for three hearings when it was necessary only for it to turn up for one; that is the trial on the substantive issue.  So this rule applies.  It is to be noted that the Respondent did not apply for costs in respect of the review hearing.  Again, in litigation it is possible for a person to make a successful application - here for a review - and yet to incur costs.  But the Tribunal did not order costs on that occasion, so the outcome was that the Respondent being ready and available to begin the trial of this case on 22 February was not able to do so until September when it had been postponed, and it had incurred two additional days’ costs.  

31.	The Tribunal’s judgment to award costs for the first of those is, in our judgment, unimpeachable.  It was a matter of discretion for it, it considered the arguments, it considered all of the relevant material and came to a conclusion which was open to it.  

32.	A number of other suggestions were forthcoming; indeed they were made by counsel on behalf of the Respondent at the hearing.  It may, in certain circumstances, be appropriate for issues such as costs like this to be determined at the end of the whole case but that does somewhat hamper the organisation of the Tribunal proceedings.  As in this case, a differently constituted Employment Tribunal descended upon the merits from that which was set up to deal with the case in February.  We cannot fault a tribunal which, knowing all there is to know about the circumstances leading to an application for a postponement and an application for review, completes its duties by deciding a costs issue properly raised before a hearing, with the Claimant represented by counsel.

33.	It is possible for another tribunal to have taken a view which might be more sympathetic to the Claimant’s medical condition.  But that is not an issue for us.  The sole issue is whether it exercised its discretion in a way which was wrong in principle or which failed to take into account relevant factors.  Neither of those criticisms has been made out to us.

34.	We would like to thank Ms Dutt for coming to make the arguments which she has put most carefully to us and which we fully understand.  We know that she wished to enlarge the scope of the arguments beyond what is properly due in this case and we have focussed on the sole issue. 

35.	At the outset we ruled on scope: On a number of occasions the Claimant has sought to challenge the scope of today’s hearing.  In case management prior to today I have given orders which have reminded her of the scope of these proceedings.  She does not accept that.  Nevertheless it has been my judgment that the scope is determined by the order given by Underhill J and members at a preliminary hearing ahead of today’s hearing, which is confined to the matters set out at pages 65C and D and which were drafted as amended grounds of appeal by the Claimant’s counsel at the preliminary hearing. . There is nothing for us to do about that because Ms Dutt, despite my continued reminders to her, complains about what happened on that occasion, but she did not appeal.  There is no ground for us to go behind the amended grounds of appeal. 

36.	In my orders earlier in the week I said that Ms Dutt’s application was misconceived.  It plainly is.  In particular, she considers that the Respondent is behaving improperly in some way.  The factual position is that this Respondent resists this appeal but has decided not to turn up.  It relies upon the reasons of the Employment Tribunal.  It is a public authority; it does not want to throw money away.  That is a perfectly acceptable position for it to adopt.