McPherson v BNP Paribas (London Branch) (2)

See also: [2004] EWCA Civ 569

1. LORD JUSTICE MUMMERY: For the reasons that have been given in the draft judgment, copies of which have been made available to counsel, this appeal is allowed to the extent of varying the order for costs, which was made by the Employment Tribunal against the appellant, so that he will only be liable to pay those costs of the proceedings in the Employment Tribunal that were incurred after the date of his application to the tribunal to adjourn, on medical grounds, the hearing that had been fixed for 24 September 2001.

2. Unfortunately the parties have been unable to agree about the costs of the appeal. Detailed skeleton arguments with attached documents have been submitted. Among those submissions, on behalf of the respondent it is claimed that £2,134 alone has been spent on preparing the respondent's contentions on what the proper order for costs should be on this appeal. The appellant, Mr McPherson, submits through his counsel, Miss McCafferty, in a 9-page skeleton argument that the respondent should pay his costs, or a substantial part of them; alternatively, that there should be no order as to costs incurred before 6 April 2004, but the respondent should pay the appellant's costs incurred between 6 April 2004 and up to and including 21 March 2004; or, in the further alternative, there be no order as to costs. The next seven pages deploy a whole series of alternative submissions in support of that permutation.

3. The respondent does not agree. It is pointed out that in the appeal Mr McPherson sought an order that the respondent should pay his costs of the Employment Tribunal proceedings incurred after 9 May 2002, or that the respondent should be ordered to pay the appellant's costs occasioned by the hearing on 27 May 2002. He failed to obtain any such order. The skeleton argument refers to written offers of settlement on the question of the appeal including costs; two relevant offers being an offer by the appellant dated 24 March 2004 to settle the case by paying £25,000, inclusive of VAT, in full and final settlement of the case, and an offer by the respondent dated 6 April 2004 to accept the sum of £57,500 inclusive of VAT in full and final settlement.

4. From the figures that I have mentioned, one gets some idea of the amount of money that has been spent on this case in order to achieve absolutely nothing. The costs are estimated on the respondent's side to be in excess of £90,000, simply for the Employment Tribunal proceedings. Since then the case has proceeded solely on the issue of costs of the Employment Tribunal through to this court. It seems likely a similar sum of costs has been spent by the appellant.

5. Having considered the rival arguments, and the fact that the appellant spent money on an appeal to preserve a more favourable order, the court has reached the decision that the respondent should pay to the appellant one half of the appellant's costs of the appeal. The court does not consider it appropriate to make a summary assessment of costs. There is a contested detailed assessment in respect of the costs in the Employment Tribunal. The most sensible course in respect of the costs of this appeal is for there to be a detailed assessment of those costs, if they are not agreed.

6. The order, therefore, is that the appeal is allowed to the extent of the variation already mentioned. The respondent is to pay one half of the appellant's costs of the appeal to this court, such costs to be the subject of detailed assessment, if not agreed. There is no application by either side for permission to appeal to the House of Lords.