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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Christodoulou v. Wallis & Anor [2000] UKEAT 566_00_1505 (15 May 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/566_00_1505.html Cite as: [2000] UKEAT 566__1505, [2000] UKEAT 566_00_1505

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APPEARANCES

 

For the Appellant And Second Respondent	MS L GOLDMAN (of Counsel)
For the First Respondent	MR R PALMER (of Counsel) Instructed By: Messrs Steel & Co Solicitors 10 Park Place Lawn Lane London SW8 1UD


 


JUDGE PETER CLARK: The parties in this case, which is presently proceeding in the London (North) Employment Tribunal are the Applicant, Mrs Wallis and Harris da Silva (a firm of Solicitors) First Respondent and Mr Christodoulou, an Assistant Solicitor employed by that firm, Second Respondent. We shall use the same description of the parties in this judgment.

1. This is an appeal by the Second Respondent against an interlocutory order made by a Chairman, Mr D. Roose, on 10 May 2000, refusing his application for a postponement of a remedies hearing fixed for 17 May pending determination of a proposed appeal by the Second Respondent (and now by the First Respondent) against the substantive liability decision of an Employment Tribunal chaired by Mr Roose and promulgated on 12 April 2000 following a hearing held on 13 to 17 March 2000.

The Substantive Decision

2. By their liability decision the full Tribunal found:

(1) that the Second Respondent had sexually harassed the Applicant and that the First Respondent was vicariously liable for that conduct in circumstances amounting to unlawful sex discrimination on the part of both Respondents,

(2) that the First Respondent had victimised the Applicant by reason of her sex. She had raised a grievance about, among other things, the Second Respondent's behaviour, by a letter to the First Respondent dated 3 December 1998. That complaint, the Tribunal found was causally connected with her dismissal on 7 December 1998,

(3) that the Applicant was unfairly dismissed for an inadmissible reason, namely asserting her statutory rights.

3. At the hearing held on 13 to 17 March all three parties were separately represented by Counsel. At the conclusion of the hearing the Tribunal fixed a remedies hearing for 17 May in case it should be necessary, no liability decision having then been orally announced.
4. The Second Respondent's substantive appeal (PA 599/00) by a Notice of Appeal against the liability decision dated 10 May 2000 and signed by the Second Respondent, grounds of appeal settled by Counsel, Mrs Goldman, who appeared on his behalf at the liability hearing, raise allegations of bias and perversity. This morning, we understand, the First Respondent is lodging a Notice of Appeal raising similar points.

The Present Appeal (EAT/566/00)

5. Immediately prior to lodging the liability appeal the Second Respondent faxed the Employment Tribunal on 9 May, indicating his intention to appeal the liability decision and requesting an adjournment of the remedies hearing fixed for 17 May pending the outcome of the liability appeal in the interests of saving costs.
6. The First Respondent having also indicated an intention to appeal the liability decision joined with the Second Respondent's application for a postponement of the remedies hearing.
7. The Applicant opposed the proposed adjournment.

The Chairman's Order

8. The Chairman refused to order a postponement of the remedies hearing on the grounds that the date had been fixed by agreement between Counsel at the end of the substantive hearing in March and that if the parties were unhappy with the remedies decision they could appeal that at the same time as the liability decision appeal is heard.

Interlocutory Appeals

9. Our power to interfere with interlocutory orders of Employment Tribunals or a Chairman are limited to correcting errors of law. In practice it will be necessary for the Appellant to show that the order was "Wednesbury unreasonable": see most recently Noorani v Merseyside TEC Ltd [1999] IRLR 184 and the earlier cases to which Mr Palmer has referred in his skeleton argument, in particular Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778 at 782 per Arnold J, approved by the Court of Appeal in Carter v Credit Change Ltd [1980] 1 AELR 252.

Submissions

10. Mrs Goldman appearing today on behalf of both Respondents submits that in the light of the intended appeals on liability the Chairman was wrong to refuse the application for a postponement of the remedies hearing which would become unnecessary if the liability appeals succeed, thus putting the Respondents to unnecessary expense.
11. Mr Palmer contends that there is no principle of law and we have been referred to no authority that where there is in place an appeal against a Tribunal's liability decision, a Chairman is bound to order postponement of a remedies hearing which has been fixed to take place before the EAT appeal on liability can be determined.
12. In our judgment Mr Palmer is plainly correct. The question as to whether or not to order a postponement in the present circumstances, which frequently arise, falls within the Chairman's discretion. We are not satisfied that any error of law is here made out. Consequently the appeal must be dismissed.
___________________________

COSTS APPLICATION

13. Following our judgment in this matter Mr Palmer made application on behalf of the Applicant for the costs in what has been treated as an interlocutory appeal against the Chairman's order refusing a postponement of the remedies hearing fixed for 17 May 2000. No detailed costs summary has been put before us, but he tells us that his instructing Solicitor spent five hours over the weekend preparing for today's hearing. He charges his time out at £110 per hour plus VAT and that the costs of attendance today by that Solicitor and by Counsel, are each evaluated in the sum of £200 plus VAT and therefore, in round terms, a figure of £1,000 is put forward for the Applicant's costs in this appeal.
14. In opposing that application Mrs Goldman submits first, that the sum claimed is excessive but she further submits that the conduct of the Respondents does not fall within the definition of Rule 34 (1) of the EAT Rules, that is to say that these proceedings were unnecessary, improper or vexatious or that there has been other unreasonable conduct in bringing or conducting the proceedings.
15. We should deal with two points. First, whether any distinction is to be drawn between the First and Second Respondents for the purpose of this costs application. It is right to say that this interlocutory appeal EAT/566/00 is brought by the Second Respondent. However, it is supported by the First Respondent and both Respondents today appear by the same Counsel. In our view no distinction is to be drawn between the two Respondents.
16. The second point is that the Second Respondent has not brought an appeal against the Chairman's interlocutory order made on 10 May 2000. He wrote a letter to the Employment Appeal Tribunal dated 11 May 2000, which has been treated as the Notice of Appeal in this appeal EAT/566/00 in which he refers to the Chairman's refusal of his application for a postponement order and indicates that the First Respondent supports the application which he makes to the Registrar and that application is expressed in these terms:

"I therefore request that this letter be considered as my application to the Registrar for an ex parte Order that the Remedies hearing listed for 17 May 2000 be adjourned or that further proceedings be stayed, pending determination of the Appeal. I understand that the Registrar has power to make such an Order under Rule 20 of the Employment Appeal Tribunal Rules 1993."

17. Today Mrs Goldman accepts that the Registrar has no power to direct that an Employment Tribunal hearing be adjourned. It is also clear to us, as it was to the Applicant and her advisers, that that application was treated as an appeal against the Chairman's interlocutory order. More to the point this morning Mrs Goldman, having been cured of any misapprehension that this was an expedited hearing of the appeal against the liability decision PA 0599/00, nevertheless proceeded with the interlocutory appeal to a determination.
18. In these circumstances it seems to us that we should deal with this matter as an application for costs in the interlocutory appeal EAT/566/00 and we are quite satisfied first, that this was an unnecessary appeal within the meaning of Rule 34 (1); second that both Respondents should be ordered to pay the Applicant's costs in this appeal; thirdly that having been asked to assess a figure for costs, we think on the material before us that the proper order is for costs in the sum of £750 inclusive of VAT.