Andrew v Eden College & Ors (Practice and Procedure : Costs)

A preparation time order may compensate only for time spent carrying out preparatory work directly relating to proceedings, up to but excluding time spent at the hearing. The exclusion applies to both the receiving party or its employees and the receiving party’s legal or other advisers. Time spent attending the hearing cannot therefore be included in a preparation time award. Where the tribunal’s reasoning leaves uncertainty about whether it intended to award time spent preparing outside the hearing room, the proper course may be to set aside the award and remit the issue for reconsideration.

The Employment Tribunal ordered the unsuccessful claimant to pay the successful unrepresented respondents £3,944 for preparation time following a six-day hearing. The award included 48 hours for the attendance of the second respondent at the hearing, 48 hours for her preparation, and 40 hours for the attendance of five witnesses of the first respondent.

On appeal, the claimant challenged the tribunal’s jurisdiction to award preparation time for attendance at the substantive hearing. The Employment Appeal Tribunal considered the construction and application of rule 42(3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.

1. The appeal was allowed in relation to the two items awarded for attendance at the hearing. Rule 42(3) defines preparation time as time spent on preparatory work directly relating to the proceedings, up to but not including time spent at any hearing.

2. The closing words of rule 42(3) apply to both limbs of the definition: work by the receiving party or its employees, and work by the receiving party’s legal or other advisers. A preparation time order cannot compensate a party or its employees for time actually spent attending the hearing.

3. The tribunal’s use of the word costs, rather than preparation time, was an inconsequential and inadvertent slip in the context of its reasons as a whole and did not disclose an error of law.

4. The tribunal’s reference to preparation undertaken during the hearing might have meant preparation carried out outside the hearing room, including between hearing days. Since the appellate tribunal could not determine what was intended, it was fair and just to set aside the whole award and remit the question of the appropriate amount of preparation time to a tribunal of the same constitution.

• Employment Tribunal: By a decision promulgated on 31 December 2009, ordered the unsuccessful claimant to pay the respondents £3,944 for preparation time.
• Employment Appeal Tribunal: Allowed the appeal, set aside the preparation time award and remitted the respondents’ application for reconsideration by a tribunal of the same constitution.