THE HONOURABLE MR JUSTICE UNDERHILL
1.
This is an appeal against a wasted costs order made by Employment Judge
Cox in the Leeds Employment Tribunal. The circumstances in which the order
came to be made need to be set out in some detail, as follows.
2.
On 6 August 2009 the Claimants, who are a husband and wife called Craig
and Sybil Johnson, commenced proceedings in the Employment Tribunal against two
associated companies, BTSTU Ltd and BTS Group Ltd, and a Mr. McCallum who was
said to be the ultimate owner of both companies: we will refer to these as the
First to Third Respondents, as they were in the Tribunal. The Appellant firm, to
which we will refer as “Wilsons”, was named in the ET1 as the Claimants’
solicitors.
3.
The ET1 form, which was completed on behalf of both Claimants, had the
boxes ticked for unfair dismissal, sex and disability discrimination,
redundancy payments and a variety of claims for sums due. Details were said to
be given in the separate Particulars of Claim. These are poorly pleaded. It
is unnecessary for present purposes that we analyse them in any detail. Very
broadly, the position is that Mr. Johnson was a tree surgeon who in April 2008
sold his business to the First Respondent, which was owned by the Second
Respondent. He and Mrs. Johnson became employees, ostensibly of the First
Respondent, although it is suggested in the Particulars that it was acting in
that regard as agent for the Second Respondent. Mrs. Johnson’s employment was
terminated on 9 February 2009 under the terms of a compromise agreement. On 7
May Mr. Johnson was summarily dismissed, ostensibly for redundancy, but the
pleaded case is that at or around the date of termination the First Respondent’s
undertaking was transferred to the Second Respondent in circumstances
attracting the operation of the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (“TUPE”). The dismissal of Mr. Johnson is said to be both
ordinarily unfair and “automatically” unfair by reference to section 103A of
the Employment Rights Act 1996. There is also an alternative claim for
unlawful detriment pursuant to section 47B. Although that broad outline is
clear enough, there are a number of obscurities about precisely how the case is
put, and very little detail of any kind is pleaded. As for the claims of
discrimination, these are frankly obscure. The claims appear – though this is
not entirely clear – to be not of “primary” discrimination but of victimisation
contrary to, respectively, section 4 of the Sex Discrimination Act 1975
and section 55 of the Disability Discrimination Act 1995; but the
protected acts relied on are not identified, nor is it clear what the acts
complained of are apart from Mr. Johnson’s dismissal.
4.
At the time that the claim was presented the First Respondent was in liquidation.
The liquidator instructed a firm called Birketts. The Second and Third
Respondents jointly instructed Ashton Graham (“AG”). AG lodged an ET3 on
behalf of their clients on 7 September 2009. They complained of the
deficiencies in the Particulars of Claim and on 14 September they served an
extensive request for further information. Wilsons replied, tacitly
acknowledging that the Second and Third Respondents were entitled to at least
some of the information requested – as they plainly were – but they said that they
preferred to supply it by way of an amendment of the Particulars of Claim. AG
wrote to the Tribunal on 16 October seeking an order for the further
information requested. By that time a case management discussion had been
fixed: the initial date was 8 October, but it was re-fixed by agreement for 12
November, with a time estimate of two hours. The notice in the usual way
emphasised the importance of the parties being ready to discuss all aspects of
the case, including giving any necessary clarification of the scope of the
issues. Wilsons wrote to the Tribunal on 21 October reiterating that they
preferred to deal with the request for further information by an amendment
which would take account of the questions raised. An Employment Judge directed
that that issue could be dealt with at the CMD.
5.
On the evening of 9 November, i.e. three days before the hearing, the
Appellant e-mailed to the Tribunal and to the Respondents’ solicitors a copy of
the proposed Amended Particulars of Claim. Again, it is unnecessary that we
analyse them in detail. They are not in the ordinary sense an amendment but re-plead
the claim from scratch. They make clear that an unfair dismissal claim is
being advanced not only for Mr. Johnson but for Mrs. Johnson, notwithstanding
that on the face of it her contract had been voluntarily terminated in
accordance with a binding compromise agreement and that the termination had in
any event occurred more than three months before the presentation of the
claim. More detail was now given of the protected disclosures relied on for
the purpose of the whistleblower claim (though they did not correspond to the
nature of the case indicated in outline in the earlier pleading) and of the
protected acts for the purpose of the victimisation claim; but at several
points they remained decidedly sketchy.
6.
The CMD duly took place, by telephone, on 12 November 2009 before
Employment Judge Cox. Mr. Wilson of the Appellant firm attended for the
Claimants. Solicitors from Birketts appeared for the First Respondent and from
AG for the Second and Third Respondents. In her Reasons for the order now
under appeal the Judge gave the following account of what happened at the
hearing:
“8. At the Case Management Discussion, the
Employment Judge reviewed the draft amended Particulars of Claim and found that
they were still substantially incomplete and unclear. Because of the large
number of heads of claims, the fact that there were multiple Claimants and
Respondents and the allegation of a transfer of an undertaking, it needed to be
made clear which claims were made by which Claimant against the Respondent and
on what legal basis the Second Claimant was alleged to be entitled to the
benefit of a contract to which she was not a party, as against a Respondent
that was also not a party. The allegations of discrimination needed to
identify the acts of unlawful discrimination, when they were committed and by
whom, and what form of discrimination they were alleged to be. In relation to
the victimisation allegations, the ‘protected act’ needed to be identified. In
relation to the public interest disclosure allegations, it needed to be made
clear what the qualifying disclosures were and on what legal basis they were
alleged to be protected disclosures.
9. Mr Wilson was unable, during the course of the
Case Management Discussion, to provide any further details or clarity. As a
result, and having explained why the current draft was inadequate, the Judge
made a detailed Order that the Claimants should file with the Tribunal their
proposed individual amended Particulars of Claim particularising the legal
bases of their claims”.
We should also refer to a letter from Mr. Outen of AG dated 25
November making an application for costs. The letter says:
“At the CMD on 12 November 2009, Employment Judge Cox
expressed dissatisfaction at the proposed amended Particulars, which were ‘all
over the place’, ‘not good enough’ and still required ‘a lot of work to be done’
on them. Employment Judge Cox made specific orders issued on the same date,
stipulating the Claimants needed to serve updated and clear particulars of
claim to accompany the application to amend the same. The Case Management
Discussion was aborted, and in the words of the Judge ‘for reasons not the
fault of the Respondent’.”
Mr. Wilson, who appeared for Wilsons before us, accepted that the
Judge had made those observations.
7.
As stated in AG’s letter, an Order was made on the same day requiring
the Claimants within 14 days to serve “proposed individual amended Particulars
of Claim”: the reference to “individual” is plainly in order to distinguish
between the claims of Mr. and Mrs. Johnson, which were not sufficiently
distinguished in the draft amended Particulars. The matters to be covered by
the Particulars are also prescribed in detail, but we need not set that out here.
The Claimants were required to identify clearly which claims were not included
in the original ET1 and why. The Order concluded:
“On receipt of those Particulars, an Employment Judge
will consider whether sufficient details of the claims have now been provided
to make it reasonable to order the Respondents to file amended responses and
then convene a further Case Management Discussion in person [i.e. not by
telephone] to finalise the issues in the claims and identify any preliminary
issues that should be dealt with at a Pre-Hearing Review. At that Case
Management Discussion, the Tribunal will identify whether any additional claims
have been included in the amended Particulars that were not included in the
original claim form and, if so, whether the Claimants should have leave to
amend their claims accordingly.”
8.
Following the CMD both Birketts and AG – by letters dated 20 November
and 25 November respectively – wrote to the Tribunal seeking an order for costs
against the Claimants on the basis that the hearing had been wasted because of
the inadequacies identified by the Judge. AG’s letter set out the procedural
history in some detail. In both cases the application was under rules 38-47 of
the Employment Tribunal Rules and Procedure – that is, the normal
provision for costs orders against a party.
9.
On 27 November 2009 Wilsons wrote to the Respondents and the Tribunal
withdrawing Mrs. Johnson’s claims and seeking permission to amend the
Particulars of Claim in accordance with a further draft, which – inevitably,
since the parties were different – differed from that submitted on 9 November.
10.
On 7 December 2009 the Tribunal wrote to all the parties directing that
there should be a further CMD on a date to be notified. Six items were
specified as being on the agenda. We need only refer to the first and fifth,
which read as follows:
“(1) Clarify the claims further and identify the
issues to be determined (Judge Cox asks the Claimants to note that the proposed
amended details of claim do not meet the requirements of paragraph 1 of the
Order made on 12 November 2009 and invites them to submit re-amended details of
claim by the date of a Case Management Discussion);
…
(5) Consider the application for costs of the Case
Management Discussion on 12 November 2009; … .”
11. On
18 October AG wrote to Wilsons and the Tribunal stating that the application
for costs made in their letter of 25 November was to be treated also as an
application for wasted costs against Wilsons.
12.
The further CMD directed on 7 December 2009 duly took place on 19 March
2010. Mr. Wilson again attended for the Claimants, Mr. Sam Healy of counsel
appeared for the First Respondent and Mr. Outen of AG again for the Second and
Third Respondents. Various substantive case management directions were made,
with which we are not concerned for present purposes. As regards costs, Birketts
also applied for a wasted costs order. The Judge ordered that:
“(1) The Claimants’ representative will pay the First
Respondent £403 and the Second and Third Respondents a total of £660 in wasted
costs in relation to the Case Management Discussion on 12 November 2009;
(2) The Claimants’ representative shall re-pay the
Claimants’ costs that they have already paid in relation to the Case Management
Discussion on 12 November 2009”
13.
The Judge was asked for written Reasons for that decision. We are told
by Mr. Wilson, though we have not seen the documents, that the initial response
from the Tribunal was that there was no obligation to give Reasons, but that he
drew its attention to rule 48 (9). The Judge then produced Reasons, which were
signed on 30 April; but due to an administrative error they were not sent to Wilsons for several months.
14.
Paras. 1-7 of the Reasons recite the history, broadly as we have done;
and paras. 8 and 9, which we have already set out, give the Judge’s account of
what happened at the CMD of 12 November. Paras. 12-15 read as follow:
“12. It is apparent to the Tribunal that Mr. Wilson
failed to prepare himself adequately for the Case Management Discussion of 12
November. He was not in a position to discuss precisely what was being claimed
or define what the factual and legal issues were, and the proposed amended
Particulars of Claim did not assist but rather created further confusion.
13. As a result, the Case Management Discussion proved
abortive. The Tribunal is satisfied that the Respondents incurred costs as a
result of the Claimants’ representative’s unreasonable and negligent acts and
omissions, in filing to be in a position to clarify the nature of the claims
his clients were making in spite of the facts that: the notice of the
Discussion made clear that he needed to be in a position to clarify what was
being claimed; both Responses had raised the adequacy of the particulars provided
in the Claim Form; and a formal request had been made for further and better
particulars.
14. Mr Wilson confirmed that he did not wish to make
any submission on his firm’s ability to pay any Wasted Costs Order.
15. The Tribunal accepted that the First Respondent’s
costs of preparing for and attending the abortive Case Management discussion on
12 November were reasonable and order the Claimants’ representative to pay £403
in that regard. The Tribunal allowed three hours’ preparation and attendance time
at £220 per hour in relation to the Second and Third Respondents’ solicitor’s
costs, which included time spent analysing the proposed amended Particulars of
Claim.”
15.
What is before us is an appeal against both elements of the Judge’s
Order – that is, not only the order that it pay £1,036 to the Respondents but
also that it repay any amount charged to the Claimants. Mr. Wilson for the Appellant
has appeared before us. The Respondents have made it plain that, in view of
the small sums involved, they do not wish to attend; but they have submitted a
helpful skeleton argument to which we have paid full regard. By an administrative
oversight on the part of this Tribunal, the Claimants, who had ceased to
instruct Wilsons before the appeal was lodged, were not properly notified of
it. By good fortune, however, they learnt of it informally and Mr. Nicholas Price
of counsel was instructed to appear for them.
THE LAW
16.
Rule 48 of the Employment Tribunal Rules reads (so far as
material) as follows:
“(1) A tribunal or
Employment Judge may make a wasted costs order against a party's
representative.
(2) In a wasted
costs order the tribunal or Employment Judge may:—
(a)
disallow, or order the representative of a party to meet the whole or part
of any wasted costs of any party, including an order that the representative
repay to his client any costs which have already been paid;
(b) ... .
(3) “Wasted costs”
means any costs incurred by a party:—
(a) as
a result of any improper, unreasonable or negligent act or omission on the part
of any 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 that party to pay.
(4) …
(5) A wasted costs
order may … be made in favour of a representative's own client. ...
(6) Before making
a wasted costs order, the tribunal or Employment Judge shall give the
representative a reasonable opportunity to make oral or written representations
as to reasons why such an order should not be made. The tribunal or Employment
Judge may also have regard to the representative's ability to pay when
considering whether it shall make a wasted costs order or how much that order
should be.
(7)-(8)
…
(9) Where a
tribunal or Employment Judge makes a wasted costs order it or he shall provide
written reasons for doing so if a request is made for written reasons within 14
days of the date of the wasted costs order. …”
17.
As was made clear by the decision of Elias P. in Ratcliffe Duce
and Gammer v Binns (UKEAT/100/08), in applying rule 48 tribunals should
apply the principles developed in relation to the equivalent High Court
jurisdiction. The leading authorities are Ridehalgh v Horsefield
[1994] Ch 205 and Medcalf v Mardell [2003] 1 AC 120, but, as
Elias P. observed in Ratcliffe, the principles deriving from them
are helpfully summarised in Mitchells v Funkwork Information Technologies
York Ltd. (UKEAT/0541/07).
THE APPEAL
18.
Wilsons’ original Grounds of Appeal were drafted before they had sight
of the Tribunal’s Reasons. Amended Grounds were served once those Reasons had
been belatedly supplied.
19.
We should deal first with one overarching ground of appeal, albeit that
it was not in the end pursued. Both versions of the Notice of Appeal contained
an allegation that Mr. Wilson had not been permitted at the hearing on 19 March
to address the Tribunal on the question whether a wasted costs order should be
made. Para. 10 of the Amended Notice reads:
“The Tribunal did not ask the representative to make
submission on wasted costs. They [sic] only sought submissions on
means. This is recorded in para. 14 of the ET’s written reasons.”
20.
Contrary to that pleading, para. 14 of the Reasons does not record that
submissions were sought only on the question of Wilsons’ ability to pay.
Nevertheless, in the face of the explicit allegation that that was so, on the
sift I directed that comments be sought from the Respondents’ representatives
and from the Judge.
21.
Mr. Healy supplied a clear and helpful note which stated candidly that
his contemporary notes were incomplete but said that they expressly showed
that:
“The EJ asked Mr. Wilson about his preparation for the
TCMD [telephone case management discussion] on 12/11/09 and questioned him as
to why he had not re-drafted the Particulars of Claim earlier.”
He said that there was then discussion of quantum and Mr. Wilson
was asked about his firm’s ability to pay. He concluded:
“I do not recall the EJ being asked by Mr. Wilson for
an opportunity to make further submissions in relation to wasted costs or any
other matter or the EJ refusing any such request.”
22.
Mr. Outen of AG wrote as follows:
“The writer does not have a note of precisely
everything that was said by the Judge or Mr. Wilson in relation to the cost
application itself on the day, but it is the writer’s recollection that the
Judge turned her attention to the costs application and our letter of
application on the 25th November 2009 and made her own comments,
indicating she was considering a Wasted Costs Order against Mr. Wilson for the
fact that the Case Management Discussion which had taken place in November 2009
had had to be aborted due to his inability to articulate his client’s claims
satisfactorily. It is the writer’s recollection that Mr. Wilson disputed that
there was any inadequacy in his handling of the CMD in November 2009. The
writer’s recollection is that Mr. Wilson did not accept any criticism or even
potential for shortcomings in relation to the matters raised. It was the
writer who reminded the Judge that she was required to take account of Mr.
Wilson’s means and Mr. Wilson had no submissions to put forward to the effect
that he or his firm did not have the ability to pay.”
23.
The Secretary to the Tribunal wrote:
“The Judge confirms that Mr. Wilson was given the
opportunity at the Case Management Discussion (CMD) on 19 March 2010 to respond
to the Respondents’ application that a costs or wasted costs order should be
made in relation to the CMD on 12 November 2009. The relevant part of the
Judge’s notes state:
R1, R2, R3: Costs of CMD on 12.11.09
-
applies for costs order or
wasted costs order
-
notice of CMD on 30.09.09 made
clear issues needed to be clarified
-
requested vol. F&BP on
2.10.09
-
13.10.09 applied for Order
-
C said would be covered by
amended particulars of claim
-
amended particulars inadequate
and served 3 days before CMD
Mr. Wilson takes no issue as to his ability to pay.
Original ET1 drafted at short notice. Doesn’t accept that amended particulars
of claim submitted before CMD on 12.11.09 were inadequate.”
24.
Mr. Wilson’s witness statement reads, so far as material, as follows:
“As it the case with a CMD there were various matters
of a procedural and costs nature considered at this hearing. On costs the
tribunal decided to make an adverse order. The Respondents had included in
their comment aimed at the possibility of wasted costs. My view was that I was
there to represent my clients, not me. It was for the tribunal to decide
whether to put any issue of wasted costs to me and if it did then that should
properly be dealt with separately.
Employment Judge Cox however announced that she had
decided that she would make a costs order and it would be a wasted costs order
against me. She did not invite me to address the question as to the target of
this costs order (i.e. the claimant or me).
I recall the Employment Judge was interrupted by a
representative of one of the Respondents to remind her that she was required to
take account of my means. She therefore asked me if I wished to make any
submission on that and I said not. She then proceeded to immediately pronounce
the wasted costs order.
I confirm the accuracy of the assertions of fact
contained in the amended grounds of appeal.”
25.
It is clear from those materials that Mr. Wilson was indeed, as one
would expect, given an opportunity to address the Judge on the substances of
the issue of whether a wasted costs order should be made. The responses from
the Respondents’ representatives and the Judge are based on their contemporary
notes and positively record Mr. Wilson disputing points put to him by the Judge
on the adequacy of his pleadings and of his responses at the CMD on 12 November
2009. Mr. Wilson’s witness statement, by contrast, is unsupported by notes and
is far from unequivocal. In his skeleton argument he did not persist in this
ground of appeal; nor was it pursued in oral submissions. We have nevertheless
felt it right to deal with it fully in order that the Judge’s conduct should be
vindicated; and also because there is some overlap with the remaining grounds
of appeal.
26.
We turn to the Amended Grounds of Appeal. These are somewhat diffuse
and what appear to be essentially the same points are made in more than one
place. But essentially six points are made, which we will consider in turn.
It is convenient to note at this stage there is no challenge to the Judge’s core
finding that the Amended Particulars were inadequate and that the Claimants’
case was not adequately clarified in the course of the CMD.
27.
First, it is said that the Judge failed to consider whether the
deficiencies which formed the basis of the order were the result not of
negligence on Mr. Wilson’s part but of the nature of his instructions from his
clients (see paras. 5 and 13 of the Amended Grounds). Privilege had not been
waived (see para. 8). Mr. Wilson reminded us of the strong warnings expressed
by the Court of Appeal in Ridehalgh about the risk of unfairness
where a lawyer is made liable for costs without being able to tell the whole
story: see at p. 237 B-E. The same point is emphasised in Ratcliffe,
at paras. 22-23. The Grounds of Appeal hint at the existence of “a challenging
client” and refer to “a representative trying to put forward a difficult case
as best he could”.
28.
We have considered this point with care. It is right that the Judge did
not expressly consider the question of who was responsible for the state of
affairs that prevailed at the CMD or, therefore, advert to the privilege
issue. It would have been better if she had done so. Wasted costs orders are
always, as the cases emphasise, a serious matter, involving as they do a
finding of negligence (at least) on the part of the representative. We have
observed a tendency among some judges to deal with them without full
reasoning. That is to be deprecated. In every case where a wasted costs order
is made the judge should remind himself or herself of the terms of rule 48 and
of the relevant principles appearing from the authorities; and it is good
practice to do so explicitly in the reasons given. But the Judge’s reasons here
have to be assessed in the light of the submissions made. It is clear from the
materials that we have set out above that Mr. Wilson took no point before the
Judge about the extent of his own responsibility for the defects in the
presentation of his clients’ case: rather, he attempted to defend his pleadings
and his conduct of the hearing on their merits. There are of course strict
limits on what he could have said: the whole point about privilege is that the
representative is unable to disclose what passed between him and his client.
But in our view it would have been perfectly proper for Mr. Wilson, as he did
before us, to draw the Judge’s attention to the well-known passages in Ridehalgh
and/or Ratcliffe and to have made the point, as a matter of
principle, that the Judge could not assume that deficiencies in the way the
case was formulated were his responsibility rather than his clients’. He did
not do so. Instead his case apparently was that his pleadings had been
satisfactory and the case sufficiently clarified. In those circumstances we do
not think that the Judge can be blamed for not explicitly addressing the
question of whether Mr. Wilson might not have been responsible for the defects which
she found.
29.
In his skeleton argument, and in his oral submissions before us, Mr.
Wilson sought to explain his failure to put any of the authorities before the
Judge or to address her on any issue of principle, on the basis that he was
entitled to expect a two-stage procedure. He submitted that the most that
should have happened at the hearing on 19 March was that, if a prima facie
case for wasted costs was established, he should have been required to “show
cause” on another occasion why an order should not be made. He submitted that
that followed from the observations of the Court of Appeal in Ridehalgh
at p. 239 B-F. We do not accept this submission. The only relevant
requirement of rule 48 is the requirement under para. (6) that the
representative be given “a reasonable opportunity to make oral or written
representations”. That requirement was complied with. Mr. Wilson was on
notice that an application for wasted costs would be made at the hearing; and,
as established above, he was given an opportunity to respond on that occasion.
There was no reason why a further stage was required. The passage relied in Ridehalgh
does not say anything different: though there is indeed a reference to two
“stages”, the stages in question refer to the reasoning process and not to any
procedural requirement. (We would also note that rule 48 (6) and O.62 r. 11
(4), which is the provision considered in Ridehalgh, are not in
quite identical terms, though it is debatable whether there is any difference
in substance.)
30.
Thus far we have established only that the Judge was not at fault in not
expressly addressing in her Reasons a point which Mr. Wilson did not himself
raise. The question remains whether, even if no point was taken, the Judge was
entitled to assume that the defects in the presentation of the case were Mr.
Wilson’s fault rather than his clients’. That might be a fair point in a case
where the criticism of the representative was that he or she had been pursuing
a hopeless case: in such a case it will generally be unfair to make any
assumptions about responsibility. But this was a case of a different kind.
The Judge’s criticism – see paras. 12 and 13 of the Reasons – was of the
defects in the pleadings and of Mr. Wilson’s inability at the CMD to rectify
those defects by clarifying the nature of his clients’ case. No doubt in
principle such failures could still be the fault of the client; but more
typically they are the fault of the lawyer and result from failure to put the
necessary work or thought into the preparation of the case. A judge will
normally be well-placed to recognise failings of the latter kind (cf. the
observations of the Court of Appeal in Ridehalgh at p. 270 C-E).
The defects in the pleadings – both in their original and their amended form – were
not of a kind which would typically flow from failures by the client: they were
failures of analysis and accurate formulation. Mr. Wilson, as we have said,
raised no question about his responsibility for the defects: rather, he denied
that they existed. In those circumstances the Judge was in our view entitled
to treat them as resulting from his negligence.
31.
Secondly, it is said that the Judge “did not enquire into abuse
of process”: see para. 6 of the Amended Grounds. In Ridehalgh
the Court of Appeal distinguishes between, on the one hand, pursuit of a
hopeless case, for which the lawyer who has given proper advice (or, more
pertinently, cannot be shown not to have done so) cannot be held responsible
and, on the other, cases of abuse of process: see at pp. 233-4 (see also Ratcliffe
at paras. 20-21). But that distinction has no application to the case of
defective preparation or presentation: the only question in such a case is
whether the representative had indeed acted negligently, applying ordinary
professional standards (see Ridehalgh at pp. 232-3).
32.
Thirdly, Wilsons contend that the Judge failed to consider
whether any costs had been wasted and that none in fact had been: Amended
Grounds, para. 7. That contention is hopeless. The purpose of the CMD of 12
November 2009 had been to achieve a final definition of the issues. As a
result of Wilsons’ failures that did not occur: accordingly the Respondents’
costs of attendance (and the Claimants’ in instructing Wilsons for the CMD)
were wasted.
33.
Fourthly, it is submitted that the Tribunal was wrong to allow
the Respondents to make submissions on the issue of wasted costs: Amended
Grounds para. 9. Mr. Wilson relied on a passage in Ratcliffe, at
para. 14, where Elias P. criticised the judge for allowing the Respondents’
solicitors to comment on representations made by the solicitors against whom
the order was sought. He said that that was not an appropriate procedure, and
continued:
“The Tribunal should give the representative a
reasonable opportunity to make oral or written submissions as to why the order
should not be made (rule 48 (7)). But whilst the other party may apply for an
order - although the issue can exceptionally be raised by the Tribunal at its
own initiative - it does not thereafter comment on the submissions, and it will
never be appropriate for the receiving party to cross examine the
representative against whom the order is being considered.”
That passage does not of course say that the other party can make
no submissions at all: that would be a nonsense, since the application will
have to have been supported by whatever submissions were necessary to raise a
case to answer. All that Elias P. is saying is that the other party should not
be permitted to respond. In fact, we venture to doubt whether even that is an
absolute rule. Elias P’s observation was made in the context of a case where
the solicitor against whom the order was sought had not been present at the
final hearing of the case and was therefore invited to make written
representations as to why an order should not be made. It is easy to see why
the other party should not in those circumstances be allowed the last word. In
a case like the present, where the issue is decided at a hearing, some flexibility
is appropriate. But in fact we cannot see that the point arises at all. There
is no evidence that the Judge allowed the Respondents’ representatives to
respond to Mr. Wilson’s submissions.
34.
Fifthly, it is said that the issue of the costs wasted on 12
November 2009 should have been deferred to the end of the proceedings or in any
event to some other occasion: Amended Grounds, paras. 11-12. But this is a
pure matter of case management, which can give rise to no issue of law. The
issue was self-contained and there was nothing irrational in the Tribunal
dealing with it at any convenient point in the proceedings.
35.
Finally, Mr. Wilson sought to argue that it was wrong to penalise
the firm for its conduct of a telephone CMD, given the greater difficulty of
dealing with complex issues on the telephone: Amended Grounds para. 16. But
that cannot amount to an error of law.
36.
For those reasons we dismiss this appeal.