![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> B Wentworth-Wood & Ors v Maritime Transport Ltd [2018] UKEAT 0184_17_1701 (17 January 2018) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0184_17_1701.html Cite as: [2018] UKEAT 184_17_1701, [2018] UKEAT 0184_17_1701 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
(SITTING ALONE)
![]() ![]() |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellants | MS KATHERINE APPS (of Counsel) Instructed by: OH Parsons LLP Sovereign House 212-224 Shaftesbury Avenue London WC2H 8PR |
For the Respondent | No appearance or representation by or on behalf of the Respondent |
SUMMARY
PRACTICE AND PROCEDURE - Costs
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
The Factual Background
(i) for arrears of holiday pay following Bear Scotland Ltd & Others v Fulton & Others UKEATS/0047/13;
(ii) for awards in respect of unlawful inducements relating to collective bargaining under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992.
"9. The tribunal is satisfied that both in relation to wasted costs and costs generally the relevant thresholds have been met for the reasons set out below and that the applications should be granted. However, the costs claimed are far from reasonable and are not proportionate and much lower sums have been assessed as payable by the Claimants in this matter. It was for the Claimants to provide particulars in support of their case. Orders were made which they failed to comply with. It was neither reasonable or proportionate for the Respondents to incur significant legal costs when that information was not being provided.
Claim numbers 3400585/15 to 3400608/15 (Adams & others)
10. For the reasons advanced the Respondents in their application the Tribunal accepts that the Claimants and/or their representatives acted unreasonably in the way in which the proceedings in cases 3400585/2015 through to 3400608/2015 (the 'Adams cases') have been conducted, which were dismissed as duplicates. The Respondents' submissions are again accepted and the Tribunal is satisfied that there should be a wasted costs order against the Claimants' representative on the ground that they acted negligently in bringing those proceedings and subsequently failing to withdraw them. Indeed in relation to both of the above, and having regard to the reasons already given on the last occasion, it would be difficult to see how the Tribunal could not find unreasonable and/or negligent conduct and therefore fail to exercise its discretion to award costs.
Costs generally
11. The Tribunal does not accept the argument advanced that the discretion should not be exercised in this case as the Claimants have already suffered the hardship of their cases being struck out. If that was a valid argument then whenever there was a failure a comply with an Unless Order and the Claimants were consequently struck out that would be a defence to any costs application brought.
12. As identified on the last occasion, the Claimants' solicitors failed to particularise the claims in the ET1; respond to the Tribunal's initial and additional Orders; and when schedules of loss were eventually prepared they were not complete and the Respondents were still left not knowing the case it had to meet. It is no answer to say that a lot of work must have gone into those schedules if the work done did not address the key issues that the Tribunal and the Respondents needed to have clarified.
13. The Claimants' solicitors in their responses to the costs application accepted on numerous occasions failures on their part and indeed apologised. They also accepted, and have again today, that they could have made their difficulties clear earlier but failed to do so. Those failures by them have led to costs being incurred by the Respondents for which the Claimants (and in relation to the wasted costs, the solicitors) should be responsible.
14. It has been suggested that there was a "reasonably comprehensive" response in the solicitors' letter of 5th March 2015. When that letter is, however, considered it is primarily a request to postpone the hearing listed for 7th April and associated concerns with regard to the need to pay the hearing fee which, of course, the Judge was not concerned with. It is correct that this Employment Judge did postpone the hearing but the Claimants' request for a stay was not granted, on the contrary the Claimants were given a further opportunity to provide particularisation by 1st April, which they again failed to do. Where the Tribunal does have some sympathy with the Claimants' submissions, is that this is not a case where it has been found that the claims were misconceived and/or had no reasonable prospects. They have been struck out for the failure to particularise the details of the claims. The merits have not been tried. The Tribunal cannot therefore accept the Respondents' contentions that all of these costs should be borne by the Claimants."
"Quite apart from the substance of the appeal, for a Judge to make serious findings of unreasonable vexatious behaviour against the litigants and a finding of conduct, at least akin to professional negligence against their representative by reference to what is said in a letter the substance of which is not unintelligibly reprised in the Judgment is questionable.
It is doubtful if it meets usual requirements for a Judgment to be accessible and public.
For this reason alone I would have granted permission so that if appropriate the Employment Appeal Tribunal can give guidance, but it seems from such material as I can glean from the Judgment that the appeal is in any event arguable."
As will appear from what I say below, I respectfully agree with and endorse those observations.
Ground 1: Wentworth-Wood
1
(i) 22 schedules were provided, including the sum claimed.
(ii) 24 Claimants had provided dates of employment.
(iii) Every Claimant had confirmed that he or she was covered by a collective agreement; albeit there was an error in relation to a particular Claimant, Mr Beddoes.
(iv) A breach of the Unless Order by one Claimant could not result in another Claimant's claim being struck out, but this possibility was a linchpin of the Respondent's submissions before the Employment Tribunal and implicitly accepted by the Employment Tribunal in simply accepting wholesale the Respondent's submissions.
(v) The Tribunal had not properly construed the Unless Order. The Order did not require further particulars of holiday pay claimed than simply the figure claimed. It did not require every aspect of the legal and factual case to be particularised and did not require the Claimants to identify the contractual terms relied on or the statutory method for calculating sums due.
(vi) The Employment Tribunal wrongly accepted the Respondent's submissions as to the adequacy of the schedules provided. Compliance with the Unless Order required the amount to be stated, not that those sums should be either factually correct or legally sustainable as the Respondent sought to argue.
(vii) The Tribunal had been wrong to accept the Respondent's submission that the Claimants' responses to the second paragraph needed to be factually accurate. The fact that there was a mistake in respect of one Claimant did not mean that there was non-compliance with the Unless Order.
(viii) Finally, the Tribunal gave the Unless Order a meaning it simply did not bear.
Ground 2: The Adequacy of the Reasons
"8. … the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises …"
"41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson … was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances."
Ground 3: Wasted Costs
"(1) A Tribunal may make a wasted costs order against a representative in favour of any party ("the receiving party") where that party has incurred costs -
(a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or
(b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay.
Costs so incurred are described as "wasted costs".
(1) Has the legal representative of whom complaint is made acted improperly, unreasonably or negligently?
(2) If so, did such conduct cause the receiving party to incur unnecessary costs?
(3) If so, is it, in the circumstances, just to order the legal representative to compensate the receiving party for the whole or any part of the relevant costs?
As far as the third stage is concerned, Sir Thomas Bingham MR (as he then was) explained at pages 233F-234F:
"A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he acts for a party who pursues a claim or a defence which is plainly doomed to fail. As Lord Pearce observed in Rondel v Worsley [1969] 1 AC 191, 275:
"It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, disreputable, and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter."
As is well known, barristers in independent practice are not permitted to pick and choose their clients. Paragraph 209 of their Code of Conduct provides:
"A barrister in independent practice must comply with the 'Cab-rank rule' and accordingly except only as otherwise provided in paragraphs 501 502 and 503 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is legally aided or otherwise publicly funded: (a) accept any brief to appear before a court in which he professes to practise; (b) accept any instructions; (c) act for any person on whose behalf he is briefed or instructed; and do so irrespective of (i) the party on whose behalf he is briefed or instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person."
As is also well known, solicitors are not subject to an equivalent cab-rank rule, but many solicitors would and do respect the public policy underlying it by affording representation to the unpopular and the unmeritorious. Legal representatives will, of course, whether barristers or solicitors, advise clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated. It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved. They are there to present the case; it is (as Samuel Johnson unforgettably pointed out) for the judge and not the lawyers to judge it.
It is, however, one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of the process of the court. Whether instructed or not, a legal representative is not entitled to use litigious procedures for purposes for which they were not intended, as by issuing or pursuing proceedings for reasons unconnected with success in the litigation or pursuing a case known to be dishonest, nor is he entitled to evade rules intended to safeguard the interests of justice, as by knowingly failing to make full disclosure on ex parte application or knowingly conniving at incomplete disclosure of documents. It is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it."
"56. In my judgment, the jurisdiction must be approached with considerable caution and the relevant provisions of section 51 construed and applied so as not to impinge upon the constitutional position of the advocate and the contribution he is required to make on behalf of his client in the administration of civil justice. The judgment in Ridehalgh v Horsefield [1994] Ch 205 referred to most of the relevant points. …"
Lord Hobhouse explained that involved recognising that from the point of view of the lawyer, the jurisdiction is penal and involves making a finding of fault against the lawyer and visiting a financial sanction upon him. Further, he explained that the fault must relate clearly to a fault in relation to the lawyer's duty to the court and not in relation to the opposing party to whom he owes no duty. That meant a restrictive application of the jurisdiction was called for, recognising that wasted costs cannot be awarded against a lawyer simply because his client is pursuing a hopeless case. As Lord Hobhouse explained:
"56. … it is the duty of the advocate to present his client's case even though he may think that it is hopeless and even though he may have advised his client that it is: Ridehalgh … 233-234. So it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is entitled to be heard; to penalise the advocate for presenting his client's case to the court would be contrary to the constitutional principles to which I have referred. The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process. However it is relevant to bear in mind that, if a party is raising issues or is taking steps which have no reasonable prospect of success or are scandalous or an abuse of process, both the aggrieved party and the court have powers to remedy the situation by invoking summary remedies - striking out - summary judgment - peremptory orders etc. The making of a wasted costs order should not be the primary remedy; by definition it only arises once the damage has been done. It is a last resort."
(i) to recognise that wasted costs is an exceptional jurisdiction to be exercised with great care adopting a staged approach, and requiring consideration of what specific conduct is said to be improper, unreasonable or negligent;
(ii) to consider whether the particular conduct caused the opposing party unnecessary costs;
(iii) to consider whether in all the circumstances it is just to order the legal representative to compensate the receiving party for the whole or any part of those costs.
"6. In relation to the wasted costs application the authorities make it clear that negligence should be understood in a non-technical way to denote a failure to act with the competence reasonably to be expected of ordinary members of the profession (Ridehalgh v Horsefield and another [1994] Ch 205, 233 paragraph C). That case also makes clear that there must be demonstrated a causal link and that that is essential (p.237 paragraph E)."
Conclusion