Zalzala v. Sheffield University [2000] UKEAT 976_99_1402 (14 February 2000)

JUDGMENT PRELIMINARY HEARING – EX PARTE © Copyright 2000 APPEARANCES For the Appellant MS E SMITH (of Counsel) Appearing under ELAAS JUDGE WILSON : This has been the preliminary hearing of the proposed appeal by the original applicant before the Employment Tribunal, concerning the Employment Tribunal's refusal to review its decision to make an order for costs against the original applicant with regard to events on 1st June 1999. It is a complicated history, which has been unravelled by the chronology prepared by Miss Smith, who has represented the proposed appellant through the services of ELAAS today, and whose presentation has radically affected the provisional view of the majority of this tribunal. A powerful illustration of the value of the service provided to litigants in person by ELAAS. Briefly, the position was that there was a preliminary hearing in March 1999, in the course of which the date was fixed by agreement between the representatives of the parties for a final hearing to begin on 1st June 1999. The applicant himself was not present on that occasion but when he was notified of the date set he notified his solicitors that it was a date he could not meet because of commitments already in place. In the course of the months which followed several things happened, two of which were that the applicant found himself without support from his union or from his solicitors. He applied on 18th May by letter to the Employment Tribunal requesting an adjournment of the hearing which was due to start on 1st June, because he was going to be out of country until 31st May. The letter was before the tribunal on the occasion when they considered an application for costs. What had happened meanwhile was that on 1st June the respondents had arrived at the tribunal ready to commence proceedings and the applicant was not present. The tribunal had responded to an invitation to dismiss the application and had done so, and had adjourned to 17th June the question of a second application, which was for costs. The applicant returned to this country to learn what had happened and immediately sought a review of the decision of 1st June. The costs hearing had been set for 17th June but the tribunal on that occasion decided to hear the applicant's application to set aside or reverse the decision to dismiss his Originating Application. They did that and they overturned their earlier judgment so that the substantive matters remain still to be tried and we are informed that that will happen in the near future, this matter having been consolidated with subsequent applications which the applicant has brought. So far as the application for costs was concerned, the tribunal went on to hear argument about that. When they assessed an amount of costs they added additional costs because of the wasted time on 1st June. They made an order on the basis that the applicant had acted unreasonably because he had not contacted the Employment Tribunal office on 21st May to find out what the decision was, if any, about the request for adjournment. Secondly, the tribunal said that there was a strong argument to suggest that he should not have gone abroad at all if he thought he could not do justice to his case in the time which he would have left. The applicant applied for a review of that decision and on 22nd July that application was heard by the Chairman sitting alone. He refused it on the basis that there was no reasonable prospect of success on review. It is from that decision that this appeal today has been brought forward and solely on that ground. Miss Smith told us at the outset that the applicant abandoned the second and third matters in the Notice of Appeal. We have concluded that the matter should proceed to full argument upon the following questions: (1) whether the tribunal should have made an order for costs at all, in light of the information they had concerning the circumstances in which the preliminary fixing of the date in March had been made; and in light of the matters disclosed in the letter of 18th May 1999; (2) whether the Employment Tribunal erred in failing to particularise the matters upon which they based their order for costs so far as its quantification was concerned; and finally, (3) whether in law the order for costs, if made, should have been expressed "costs to be decided after final adjudication". On those three matters we think there should be full argument. The case to be listed as Category C with an estimate of 2 hours. We also direct that the appellant be at liberty to file an amended Notice of Appeal and an amended skeleton argument by 4 p.m. Monday, 28th February 2000. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII