Yell Limited v Garton

The appeal from the Employment Appeal Tribunal was withdrawn by consent after the parties reached a compromise. The Court of Appeal accepted apologies from counsel but emphasised that CPR 1.3 imposes a duty on parties and their advisers to help the court achieve the overriding objective, including notifying the court as soon as it is known that a listed fixture may not proceed. The court criticised the failure to inform the Civil Appeals Office when settlement negotiations were underway, observed that judicial time had been wasted, and ordered the appeal withdrawn following the necessary procedure under the Employment Rights Act 1996 and the Disability Discrimination Act 1995, with no order for costs except for assessment under the Community Legal Service (Costs) Regulations 2000.

Background and parties: This was an appeal to the Court of Appeal from the Employment Appeal Tribunal. The appellant was Yell Limited and the respondent was David Garton. The appeal was listed to commence on the morning of the hearing and was expected to last one and a half to two days.

Nature of the application: The appeal itself was withdrawn by consent following settlement between the parties. The court was invited to record the withdrawal and to make such orders as to costs as it considered appropriate.

Procedural facts: On the Friday before the hearing the respondent's counsel communicated an offer to the appellant's counsel and agreement was reached that evening. Counsel notified their clerks who said it was too late to notify the court and that notification would be made at 9.00am on the morning of the hearing. The Civil Appeals Office was not informed on Friday despite being open. The court therefore learned at 9.00am on the morning of the hearing that the appeal had been settled.

Issues for the court:

• Whether the court should record the withdrawal by consent; and
• Whether sanctions or costs orders should follow the late notification and consequent wasting of judicial time.

Court's reasoning: The court referred to the recent decision in Tasyurdu v Secretary of State for the Home Department [2003] EWCA Civ 447 and reiterated the professional obligation under CPR 1.3 to assist the court to achieve the overriding objective, which includes making appropriate use of the court's resources. The court criticised counsel and solicitors for not notifying the Civil Appeals Office when settlement negotiations were under way, observed that such notification could have been made via the Royal Courts of Justice switchboard even late on Friday, and noted the waste of judicial time caused. The court accepted the apologies of counsel, made an order recording the appeal as withdrawn by consent following the necessary statutory procedure under the Employment Rights Act 1996 and the Disability Discrimination Act 1995, and made no order for costs other than the assessment of the respondent's costs pursuant to the Community Legal Service (Costs) Regulations 2000.

Wider comment: The court expressed its hope that the judgment would receive wide publicity so that the profession is informed of the obligation to notify the court promptly when a listed matter may not proceed.

Appeal withdrawn by consent. The court accepted counsel's apologies but held that under CPR 1.3 there is a professional obligation to notify the court as soon as it is known that a listed matter may not proceed. Failure to alert the Civil Appeals Office when negotiations were underway wasted judicial time. The court ordered withdrawal following the necessary procedure under the Employment Rights Act 1996 and the Disability Discrimination Act 1995 and made no order for costs other than assessment under the Community Legal Service (Costs) Regulations 2000.

Appeal from the Employment Appeal Tribunal to the Court of Appeal. No prior neutral citation for the Employment Appeal Tribunal decision is given in the judgment.