Towler v Henry Cooke Lumsden plc

Where an application for permission to appeal and an application for an extension of time arise from connected proceedings, the Court of Appeal may adjourn both applications for hearing with an already-permitted related appeal. This is appropriate where the same court would need to examine the common procedural history and the result of the related appeal might make separate consideration unnecessary. The general costs approach in the Court of Appeal differs from that in employment tribunals: the successful party will generally receive the costs of the appeal, subject to exceptions.

Mr Towler brought an unfair dismissal claim after his dismissal by his former employer. The Employment Tribunal dismissed the claim in June 1999. On his appeal, the Employment Appeal Tribunal allowed the appeal on 19 December 2000 and remitted the matter for rehearing by a different tribunal.

The employer obtained permission from the Court of Appeal to appeal that decision on 6 June 2001. Mr Towler then applied to the Employment Appeal Tribunal for a review of its decision, but the application was refused on 21 June 2001. He applied to the Court of Appeal for permission to appeal against that refusal and for an extension of time. The central case-management question was whether those applications should be determined separately or together with the employer’s related appeal.

1. Applications adjourned. The applications for permission to appeal and for an extension of time were adjourned. They were ordered to be listed before the same court and at the same time as the employer’s appeal, for which permission had already been granted.
2. Case-management discretion. In the unusual circumstances, it was more appropriate neither to grant nor refuse the applications immediately. The related appeal would require consideration of the history of the employment dispute and the proceedings before both tribunals. Depending on its outcome, it might be unnecessary to consider Mr Towler’s application separately or in further detail.
3. Costs. The judge explained that the general costs rule in the Court of Appeal is that the successful party is entitled to the costs of the appeal against the unsuccessful party. That rule is subject to exceptions depending on the nature and result of the case. This differs from the usual position in employment tribunals, where no order as to costs is generally made.
4. Representation. The judge advised that representation would be desirable because the appeal concerned questions of law and legal argument, but confirmed that Mr Towler remained entitled to represent himself.

Order: applications adjourned for listing with the employer’s appeal. No order as to costs.

• Court of Appeal (Civil Division): On 15 November 2001, adjourned Mr Towler’s applications for permission to appeal and an extension of time, directing that they be listed with the employer’s permitted appeal.
• Employment Appeal Tribunal: Allowed Mr Towler’s appeal on 19 December 2000 and remitted the unfair dismissal matter for rehearing by a different Employment Tribunal. Refused his subsequent review application on 21 June 2001.
• Employment Tribunal: Dismissed Mr Towler’s unfair dismissal claim in June 1999.