Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS:    22/17FET

2456/17

 

 

CLAIMANT:                          Pamela Davidson

 

RESPONDENTS:               1.         Armagh, Banbridge & Craigavon Council

                                                2.         Carol Corvan

                                                3.         Sharon O’Gorman

                                                4.         Sharon Currans

                                                5.         Fidelma McQuade

                                                6.         Aisling Knipe

                                                7.         Clare McNulty

                                                8.         Antony Grimes

                                                9.         Kate Campbell

                                                10.       Aidan Mallon

                                                11.       Mary Hanna

                                                12.       Martina McNulty

                                                13.       Steven Trainor

                                                14.       John/Sean Prunty

                                                15.       Paul Carroll

 

 

 

 

DECISION ON COSTS

 

The decision of the tribunal is as follows:-

 

The tribunal orders the claimant to pay to the respondents the sum of £10,000 (inclusive of any value added tax properly payable by the claimant to the respondents) as a contribution towards the costs of the respondents.

 

 

Constitution of Tribunal:

 

 

Employment Judge (sitting alone):       Employment Judge Drennan QC          

 

 

Appearances:

 

The claimant did not appear and was not represented.

 

The respondents were represented by Mr B Mulqueen, instructed by Jones Cassidy Brett Solicitors.

 

 

REASONS

 

1.1       The tribunal, in the decision recorded in the register and issued to the parties on 24 April 2018, decided that:-

 

                        “The decision of the tribunal is that the claimant’s claims, and each of them, against the respondents and each of them are struck-out, pursuant to Rule 12(2) of the Fair Employment Tribunal Rules of Procedure, contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 on the grounds that the claimant has failed to comply with an “Unless Order” made by the tribunal, dated 8 February 2018.”

 

                        By email, dated 26 April 2018, the claimant wrote to the tribunal, which I treated as an application for a review of the tribunal’s said decision, on the grounds that the interests of justice requires such a review.  By letter dated 24 May 2018 the Secretary of the Tribunals informed the claimant of my decision, on my preliminary consideration of the application for review of the said decision, refusing the said application for review.

 

1.2      In a letter dated 9 May 2018, the respondents’ representative wrote to the tribunal, copied to the claimant, stating, inter alia:-

 

                        “… at this stage however, in light of the claimant’s conduct of the proceedings to date, we are instructed to apply for costs against the claimant under Rule 30 of the Fair Employment Tribunal and Industrial Tribunals (Rules of Procedure) Regulations (Northern Ireland) 2005 on the grounds that the bringing and conducting of the proceedings has been misconceived and/or that the claimant has acted vexatiously, abusively, disruptively or otherwise unreasonably.  We will prepare and serve a Schedule of Costs within the timeframe as directed by the tribunal.

 

                        In a further letter, dated 30 May 2018, the respondents’ representative wrote to the tribunal, with copy to the claimant, stating:-

 

                                 “We refer to our letter of 9 May 2018, following the tribunal’s decision of 24 April 2018 striking-out the claimant’s above mentioned claims.  In our letter we advised of our instructions to apply for costs against the claimant. 

 

                                 We have now considered that the decision of the Employment Judge of 24 May 2018 rejecting the claimant’s application for a review.  That the review has been refused for application for costs under Rule 38(7) of the Fair Employment Tribunal and Industrial Tribunals (Rules of Procedure) Regulations (Northern Ireland) 2005 is made on the basis that the claim was misconceived, frivolous, vexatious and/or the conduct of the claimant during the hearing was unreasonable in their failure to comply with the orders. 

 

                                 We respectfully request that a date for the hearing of our application be fixed and we attached our schedule of costs in the sum of £18,945.00 inclusive of VAT in respect of solicitors and counsels fees incurred in the preparation of this matter and to include Mr Mulqueen’s appearance at the hearing of this application on the date to be fixed.  We would advise our application for costs is however limited to the maximum sum of £10,000.00 which the tribunal can award under the Rule 41(1)(a)”.

 

1.3      It should be pointed out that, in the said correspondence, the respondents’ representatives have referred to the relevant Rules of Procedure, relating to the making of orders for costs in proceedings before the Industrial Tribunal.  However, an order having been made, pursuant to Article 85 of the Fair Employment and Treatment (Northern Ireland) Order 1988, all the claims of the claimant, both those before the Industrial Tribunal and those before the Fair Employment Tribunal, proceeded before the Fair Employment Tribunal, pursuant to the Fair Employment Tribunal Rules of Procedure.  As the Rules of Procedure before the Fair Employment Tribunal and the Industrial Tribunal are in similar terms, I did not consider, taking into account the terms of the overriding objective that the claimant was prejudiced by the said error of the respondents’ representative in the said correspondence, which was recognised and acknowledged by the respondents’ representative at the commencement of this hearing. 

 

1.4      By email dated 9 June 2018, the tribunal informed the claimant and the respondents’ representative that a costs hearing would be arranged, on foot of the application by the respondents’ representative for an order of costs and that the costs hearing would take place on Monday 2 July 2018 at 11.00 am.  In an email, dated 9 June 2018 at 23:53:17, to the tribunal, with copy to the respondents’ representative, the claimant wrote to the tribunal stating:-

 

                        “I am urgently requesting an extension to this date on grounds of my health and also that I urgently will have to obtain witness orders and subpoenas in order to have a fair hearing.  And this is in the public interest.

 

                        The insistence of the Employment Judge that this cost order goes ahead has caused massive distress to me.  I have suffered enough and the Employment Tribunal appears to have no fairness in relation to myself.  I urgently need legal advice on this and I am appealing to the Employment Judge.”

 

                        In an email, dated 20 June 2018, with copy to the respondents’ representative, the tribunal sent to the claimant, a reply on my behalf, stating:-

 

                                 “In relation to your email of 9 June 2018 (23:53:17), the Employment Judge notes that you are seeking a postponement of the costs hearing, which has been listed on 2 July 2018 at 11.00 am on the grounds of your health.  Unfortunately, you have not provided any or sufficient detail in relation to your particular health that would prevent you attending such a costs hearing and, in particular, you have not provided any relevant medical evidence to support your application for the postponement on health grounds at that said costs hearing…….

 

                                 … therefore, to enable the Employment Judge to further consider your application for a postponement of health grounds, you must provide a detailed medical report, as a matter of urgency, setting out:

 

                                 (1)     the precise details of the ailments relied upon by you;

 

                                 (2)     including details of all your recent attendances in relation to that illness and any medication prescribed;

 

                                 (3)     the prognosis for the medical condition;

 

                                 (4)     and in light of that prognosis, when your doctor considers you will be fit to attend the costs hearing. 

 

                                 …

 

                          Upon receipt of such medical evidence, which must be obtained by you as a matter of urgency (see later), the Employment Judge will further consider your application and, in light of any comments provided by the respondents’ representatives, when to relist the costs hearing. 

 

                        In your email of 9 June 2018, you also refer to requiring a postponement “to obtain witness orders and subpoenas in order to have a fair hearing …”.  In an email of 10 June 2018 (0015) you also state that you are “requesting that a third person is present to witness the treatment of myself in relation to this case …”.

 

                        Firstly, the Employment Judge has asked me to remind you that the hearing on 2 July 2018 is a costs hearing and is not a determination of your claims for the tribunal, which have been struck-out, pursuant to the decision of the tribunal issued to the parties on 24 April 2018.  In your said emails, you have not provided any details of any person you wish to be the subject of a witness order for the said costs hearing.  Before the Employment Judge can give further consideration to your request to postpone the hearing on this ground and/or to making such an order, you must provide the following information:-

 

(1)     the full address of the proposed witness;

 

(2)     whether the proposed witness has been asked to attend the hearing;

 

(3)     in the case of a proposed witness, who has been asked to attend, what answer was given;

 

(4)     brief details of the matters upon which it is thought the proposed witness can give evidence at the costs hearing;

 

(5)     a short summary of your reasons for thinking the evidence the proposed witness will be relevant to the issues to be determined at the costs hearing

 

                        …

 

                        In the circumstances, and taking into account the guidance in the case law, as set out above, the Employment Judge has decided, in the interest of justice and the terms of the overriding objective to grant a short adjournment of the costs hearing on 2 July 2018.  In doing so, the Employment Judge has also taken into account the application of the claimant was received by the tribunal on 9 June 2018 and was not able to be seen by the Employment Judge until his return from leave on week commencing 18 June 2018 and the time for the claimant to comply with the order, as set out below, has been reduced for the purposes of the costs hearing, if the date was maintained.  The claimant, following the adjournment must provide the medical evidence together with the details relating to the application for witness orders by 25 July 2018.  Subject to the contents of any such information provided, the Employment Judge would intend to relist the costs hearing as soon as possible. 

 

                        As you are aware the tribunal does not give any legal advice.  You may wish to contact the Labour Relations Agency for assistance.  (See also the tribunal procedure booklet for other useful names and addresses – copy enclosed) which is also available on the tribunal’s website) ….  The Employment Judge apologises for delay in replying to your recent correspondence but, for reasons set out above, he has only been in a position to deal with it upon his return from leave. …”

 

                        (In the said email, reference was made to relevant case law, giving guidance on such matters)

 

1.5      By email dated 15 July 2018, the claimant made an application for witness orders for three witnesses to attend for the costs hearing, setting out the basis for the attendance of the said witnesses by way of witness order.  By email dated 24 July 2018, the claimant was informed that the Employment Judge had considered her application of the said witness orders but had refused her said applications as she had not provided the information (1) to (5) set out at the top of page 4 of the tribunal’s email, dated 21 June 2018.  The email also stated –

 

                        “He would again remind you that the costs hearing to be arranged in due course, is not a determination of your claims to the tribunal, which have been struck-out pursuant to the decision of the tribunal issued on 24 April 2018”.

 

            On 25 July 2018, the claimant telephoned the tribunal stating that she required an extension of time to provide medical evidence, that she was locked out of her house and could not get to her telephone to send an email.  She was told to make her request to the tribunal in writing. 

 

            In an email dated 25 July 2018 (21:16), she stated “due to circumstances beyond my control today, and which I telephoned into the Employment Tribunal today about, I was unable to access internet and I have only now got access.  Please can I ask for an extension of time to reply.”  In an email dated 26 July 2018, the tribunal stated to the claimant, in response – “ … the Employment Judge is surprised and disappointed that you have made a further application for time, despite the generous period already provided by the tribunal to comply with relevant directions/orders.  No good reason has been given for the failure to comply with the relevant tribunal directions/orders in time.  Not without considerable hesitation, the Employment Judge has granted a short extension to 2 August 2018, which he considers is in accordance with the terms of the overriding objective in the interest of justice.” 

 

            In an email, dated 2 August 2018, (12:21) the claimant thanked the Employment Judge for allowing her extra time.  In the course of the said email, she also indicated that she had been unable to obtain a medical report, as ordered by the tribunal and also referred to various health issues in the said email, namely “I have had chest pain, low moods and anxiety about this case and my future employment further bullying and discrimination and the effects on my family and private employment life.  I had an ECG and I have had a chest infection, I also suffer from fatigue problems because of all of this, and have had intense pain on the right side of my head”.

 

            In the said email, the claimant also set out further details in relation to the proposed witnesses, in relation to her application for witness orders, as referred to previously. 

 

1.6      In an email dated 15 August 2018, the tribunal wrote to the claimant stating, inter alia:-

 

                        “… the Employment Judge refers you to the tribunal’s previous email of 20 June 2018.  In the absence of any further medical report, as requested in the email of 20 June 2018, and having carefully considered what you stated in relation to “health issues” in your email of 2 August 2018, and the position of the respondent, the Employment Judge has decided, in the interests of justice and in accordance with the terms of the overriding objective, that the costs hearing, as previously directed, must now be arranged and cannot be continued to be postponed indefinitely in the circumstances.  He notes your reference to instructing a solicitor for the purpose of the costs hearing.  If you intend to do so, you should do so as a matter of urgency, as the costs hearing will not be further postponed, in the absence of good reason, or of any inability in your part to instruct a solicitor for such a hearing.  You are again reminded of the assistance that may be given to you by the Labour Relations Agency in relation to the costs hearing.  If you decide, in the circumstances, not to attend the costs hearing, you may submit written representations to the tribunal, with copy to the respondents’ representative, not less than seven days before the hearing. 

 

                        The previously postponed costs hearing will now therefore proceed at 11.00 am on 7 September 2018. 

 

                        In relation to the respondents’ application for an order for costs, the tribunal, pursuant to the Rules of Procedure may have regard to your ability to pay when considering whether a costs order should be made or how much that order may be. 

 

                        The Employment Judge has considered the details you have provided at, on foot of your application for witness orders …  As the Employment Judge reminded you, in the tribunal’s email of 20 June 2018, the hearing arranged, as referred to above, is to determine the respondents’ application for costs and is not for a determination of your original claims to the tribunal, which have been struck-out pursuant to the decision of the tribunal issued to the parties on 24 April 2018.  In light of the foregoing, the Employment Judge is not satisfied any of the said witnesses, prima facie, can give evidence which is relevant to the issues in dispute at the said costs hearing (see further Data – v – Metal Box Company Limited (1974) IRLR 251). In the circumstances, the Employment Judge refuses your application for the said witness orders for the costs hearing.

 

                        …

 

1.7      In an email, dated 19 August 2018, (19:30) the claimant also asked, inter alia, how she could take this matter to an Appeal Court and by email dated 20 August 2018, the tribunal replied to the claimant stating, inter alia:-

 

                        I can inform you that the Employment Judge has considered your email of 19 August 2018 and has nothing to add to previous correspondence, and the costs hearing will proceed to hearing on 7 September 2018 at 11.00 am as set out in the email of 15 August 2018.  As explained previously your claims to the tribunal were struck-out and the tribunal’s decision, was recorded in the register and issued to the parties on 24 April 2018.  A copy of “the explanatory notes”, following a decision, was sent to you with the said decision.  A further copy is attached for your information together with a further copy of the procedure booklet, previously sent to you on 20 June 2018 …

 

                        The said notes and booklet explain how to appeal to the Court of Appeal.  The Tribunal has no notice any such appeal having been made by the claimant.

 

1.8      In an email dated 6 September 2018 (16:58) the claimant wrote to the tribunal stating:-

 

                        “This is to inform you that I will not be attending the costs hearing on 7.9.18 for the following reasons and I am requesting an adjournment. 

 

                        1.      Health Reasons

 

                                 My health has deteriorated with the unfair, unreasonable and distressing developments of my case and this unfair, threatening costs hearing.  I have upset sleeping with the distress and stress of this case and the maltreatment and have nightmares and regularly grind my teeth, without being aware.  On Friday 31 August, during the night, part of my front tooth broke off and I urgently wanted to get this fixed.  The biopsy, I had, has also been hurting me …”

 

            Despite the fact that this further application for postponement of the costs hearing was sent to the tribunal by email by the claimant at 16:51, the tribunal replied to the claimant, with copy to the respondents’ representative, at 18:19:05 stating “an Employment Judge has directed that the email received on 6 September 2018 be copied to the respondents’ representative for their immediate comments and the Employment Judge will consider the request as soon as possible in the morning (Friday 7 September).  The Employment Judge has asked me to inform you that you must not assume that the application for postponement will be granted and, if not granted the hearing will proceed on Friday 7 September 2018.”

 

            In an email from the respondents’ representative, dated 7 September 2018 at 08:37, the respondents’ representative stated –

 

                        “I have just seen this request this morning.  We are prepared for the hearing and Mr Mulqueen is briefed.  We note that no medical evidence has been produced by the claimant.  Unless we hear to the contrary we will attend the tribunal this morning.”

 

                        In a further email sent to the claimant, with copy to the respondents’ representative on 7 September 2018 at 09:36, the claimant was informed that I had directed that her request for postponement of the hearing listed for 7 September 2018 at 11.00 am had been refused and that the hearing would commence at 11.00 am.  The claimant was informed that if she wished to renew her application for postponement, that the Employment Judge would consider this at the outset of the hearing. 

 

                        No further correspondence was received from the claimant prior to the commencement of the hearing.

 

1.9      At the commencement of the hearing, in light of the foregoing, I had to consider whether I should proceed with the hearing, in the absence of the claimant.  The respondents’ representative confirmed the respondents’ objection to the claimant’s application for a postponement pointing out, in particular, the lateness of the said application, following previous applications for postponement of the hearing, which had been granted, despite the respondents’ objection and the failure of the claimant to provide the medical evidence to support any such application, as she had been ordered to do so.  I noted that this pattern of behaviour by the claimant in seeking “last minute” adjournments and failing to comply with tribunal’s orders was similar to behaviours that was the subject matter of the decision issued to the parties on 24 April 2018.  I was satisfied that the claimant, who is a litigant in person, had been given every opportunity and time to provide the necessary medical evidence to the tribunal but had failed to do so.  She had now made a further “last minute” application for postponement and, without waiting for the outcome of that application, informed the tribunal that she would not attend the hearing in any event.  The claimant had also been told, as set out in the above correspondence, that if she did not intend to attend the hearing, then she could make written representations to the tribunal.  This she failed to do.  In the circumstances, having regard to the terms of the overriding objective, I came to the conclusion that this hearing should proceed, in the absence of the claimant. 

 

2.1      The relevant rules of procedure are contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (“the rules of procedure”):-

 

2.2      Rule 34 of the Rules of Procedure, insofar as relevant and material, provides:-

 

                        “(3)  For the purposes of these rules “costs” shall mean fees, charges or disbursements incurred by or on behalf of the party in relation to the proceedings.

 

                        (6)  Any costs order made under Rules 35 or 41 shall be payable by the paying party and not his representative.

 

                        (7)  The party may apply for a costs order to be made at any time during the proceedings.  An application may be made at the end of the hearing, or in writing to the Office of the Tribunals.  An application for costs which is received by the Office of the Tribunal later than 28 days from the issuing of the decision, determining the claim shall not be accepted or considered by a tribunal or chairman unless it or he considers that it is in the interests of justice to do so.

 

                        (9)  No costs order shall be made unless the Secretary has sent notice to the party against whom the order may be made giving him the opportunity to give reasons why the order should not be made.  This paragraph shall not be taken to require the Secretary to send notice to that party if the party has been given an opportunity to give reasons orally to the chairman or tribunal as to why the order should not be made.

 

                        (10)  Where a tribunal or chairman makes a costs order it or he should provide written reasons for doing so if a request for written reasons is made within 14 days of the date of the costs order.  The Secretary shall send a copy of the written reasons to all parties to the proceedings.

 

            Rule 36 of the Rules of Procedure, insofar as relevant and material, provides:-

 

                        “(2)  A tribunal or chairman should consider making a costs order against a paying party where in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply.  Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.

 

                        (3)  The circumstances referred to in paragraph (2) of where the paying party has in bring the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived. 

 

                        (4)  The tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction.

 

            Rule 36 of the Rules of Procedure, insofar as relevant material, provides:-

 

                        “(1)  The amount of the costs order against a paying party shall be determined in any of the following ways:

 

                        (a)     the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000;

 

                        (b)     the parties may agree on a sum to be paid by the paying party to the receiving party and if they do so the costs order shall be for the sum so agreed;

 

                        (c)     the tribunal may order the paying party to pay their receiving party the whole or a specified part of the costs of the receiving party with the amount to be being determined by way of detailed assessment in a County Court in accordance with such of the scales prescribed by County Court rules for proceedings in the County Court as shall be directed by the order.

 

                        (2)  The tribunal or chairmen may have regard to the paying party’s ability to pay when considering whether it or he shall make a costs order or how much that order should be.

 

                        (3)  For the avoidance of doubt, the amount of a costs order made under Paragraph (1)(b) or (c) may exceed £10,000.

 

2.3      In Raggett – v – John Lewis Plc (2012) UKEAT/0082/12 the Employment Appeal Tribunal held that, if the receiver can claim back the VAT element of any costs incurred as input tax, then those costs should be calculated net of the VAT, because the receiver will otherwise receive a windfall.  Further, I am satisfied, on a proper interpretation of the said rules of procedure, that the cap of £10,000 on the amount of costs (ie. the sum which must be paid) which can be awarded pursuant to Rule 36(1)(a) the Rules of Procedure must include any sum properly payable by way of value added tax.  In the event, upon confirmation by the respondents’ representative, I am also satisfied that value added tax is properly payable by the claimant in relation to any order for costs made in these proceedings.

 

2.4      In the respondents’ representatives letter dated 30 May 2018, referred to previously, and which was copied by the respondents’ representative to the claimant, the respondent set out a schedule of costs, to which further reference shall be made later in this decision, claiming, inclusive of value added tax, the counsel’s fees of £8,550 and solicitors fees of £10,395 – total £18,945 (application then limited to £10,000).  Further, at the outset of the proceedings, the respondents’ representative stated that, in relation to the application of the respondent for a costs order, and the grounds for same, as set out in Rule 35(3) of the Rules of Procedure, as referred to above, the respondents no longer were relying on the ground that the claimant had, in bring the proceedings or in conducting the proceedings, acted vexatiously or abusively but they were still relying on the fact that the claimant had in bringing the proceedings or in conducting the proceedings acted disruptively or otherwise unreasonably, and, in the alternative, the bringing or conducting of the proceedings by the claimant had been misconceived (ie includes having no reasonable prospect of success). 

 

2.5      The respondents’ representative confirmed, in making the respondents’ application for an order for costs, he was doing so pursuant to 36(1)(a) of the Rules of Procedure (which said cap is £10,000) and he was not seeking to make any application for assessment pursuant to Rule 36(c) of the Rules of Procedure. 

 

            In this context, I have, in a number of decisions in relation to applications for orders for costs, pointed out that the Rule of Procedure allowing a party to seek the assessment of costs by way of detailed assessment in the County Court, in accordance with such scales prescribed by County Court Rules for Proceedings in the County Court, is of limited assistance, to many parties, despite the provision of Rule 36(3), which accepts a costs order following such an assessment, may exceed £10,000.  This is because none of the relevant County Court scales allow for an order for costs in excess of the cap of £10,000, provided for in Rule 36(1)(a) of the Rules of Procedure.  As indicated previously, in these present proceedings, the amount of costs claimed by the respondents, as set out in the Schedule of Costs provided to the tribunal for the purposes of this application exceeded £10,000; but the respondents’ representative, in the circumstances, properly in my judgement, limited the application for costs to £10,000, pursuant to Rule 36(1)(a).  It remains unfortunate that the relevant legislative authorities have not made any amendment to the Rules of Procedure to overcome the above difficulty, which, in an appropriate case, must mean that a party who is seeking an order for costs, in excess of £10,000, may be unable to recover such costs.  In the absence of any functioning Legislative Assembly, the issue of any relevant amendment to the Rules of Procedure to overcome this difficulty will have to await the restoration of the Legislative Assembly at Stormont.

 

3.1      Under Rule 35(2), (3) and (4) of the Rules of Procedure, it has long been recognised that it is necessary for an Employment Judge or Tribunal, when he or it is considering an application for costs under the said Rules of Procedure, to embark on a two stage process.

 

            Firstly, the Employment Judge has to consider whether it has been established that the relevant party has satisfied the terms of Rule 35(2), (3) – for example a finding that the claimant, in bringing the proceedings or in conducting the proceedings, acted disruptively or otherwise unreasonably or the bringing or conducting of the proceedings by the claimant has been misconceived.  The Employment Judge then has to consider, secondly and separately, whether to exercise his discretion to make an order for costs (see further Criddle – v – Epcot Limited (UKEAT/0275/05).  Vaughan – v – London Borough of Lewisham and Others (2013) |UKEAT/0532/12, Power – v – Panasonic (UK) Limited (2005) UKEAT/0439/04).  Mummery LJ in Khan – v – Kirklees BC (2007) EWCA Civ 1342, in the course of his judgement, stated that it was not possible to list exhaustively what all the circumstances of the second stage might be.  However, he indicated (see paragraph 8 of the judgement) potentially relevant consideration might include, conduct, proportionality and the merits of the case and also whether a person is represented or unrepresented.  However he emphasised this was not an exhaustive list and each case would depend on its own facts. 

 

In Ayoola  v  St Christopher’s Fellowship [2014] UKEAT/0508/13 the Employment Appeal Tribunal again emphasised the two stage process; but also stated, simply because the costs jurisdiction has been engaged, costs do not follow the event, and a Tribunal still needs to be satisfied it would be appropriate to make an award of costs (see further Criddle  v  Epcot Leisure Ltd [2005] and Robinson  v  Hall Gregory Recruitment Ltd [2013] UKEAT/0425/13/BA and the recent decision in Abaya v Leeds Teaching Hospital [2017] UKEAT/0258/16/BA).

 

            In Ayoola HH Judge Eady QC emphasised (see Paragraph 51) that any assessment of costs by a Tribunal, even a summary assessment, must still be exercised judicially and any costs awarded must not breach the indemnity principle and must compensate not penalise; and there requires to be some indication the Tribunal has adopted an approach which enables it to explain how the amount is calculated.

 

Unlike the Rules, which normally apply to proceedings in, for example, the High Court/County Court, costs do not follow the event.  In addition, the Rules of Procedure do not replicate the general Rules, applicable in those Courts, which provide, where a plaintiff discontinues proceedings, he is normally liable for the costs which a defendant has incurred before a Notice of Discontinuance is served on him.  In the case of Lodwick  v  London Borough of Southwark [2004] IRLR 554, a case of unfair dismissal/ breach of contract, Lord Justice Pill made it clear, when considering whether an Order for Costs should be made under the said Rule:-

 

“To order costs in the Employment Tribunal is an exceptional course of action and the reason for, and the basis of, an Order should be specified clearly; especially where a sum as substantial as £4,000.00 is involved.”

 

There is nothing in the Rules of Procedure which expressly states that an Order for Costs should be considered the exception rather than the rule.  Certainly, however, that has been the view taken in relation to the exercise of the power under the said Rule, which governs claims, such as unfair dismissal/unlawful discrimination (see further the case of Gee  v  Shell UK Ltd [2003] IRLR 82). 

 

            But, as Burton P in the case of Salinas v Bear Stearns International Holdings [2005] ICR 1117, stated:-

 

“The reason why Costs Orders are not made in the substantial majority of cases is that the Tribunal Rules contain a high hurdle to be surmounted, before such an Order can be considered.”

 

Those Rules, to which Burton P was referring, were the pre-conditions which required to be considered before the issue of the discretion arises, as set out above.  In the case of Benyon  v  Scadden [1999] IRLR 700, it was emphasised that the Costs Rules are discretionary and, as such, cannot be restricted by case law.  Matters to be derived from the case law can only be factors that may or may not be given weight by the Tribunal.  In any event, an Order for Costs must be compensatory and not punitive (see further Lodwick  v  London Borough of Southwark [2004] IRLR 554).  (In the decision of the Employment Appeal Tribunal in the case of Baker  v  Toal Bookmakers Ltd t/a Tote Sports [UKEAT/0538/11], unreported, HH Judge Clark again emphasised that Costs Orders in the Tribunal are exceptional (see further the recent decisions in Sud  v  London Borough of Ealing [2013] EWCA Civ 949.) and Ayoola [2014] and Abaya [2017], which reaffirm the above guidance that Order for Costs are the exception rather than the rule.)

 

3.2      However, in the judgment of this Tribunal, when exercising its discretion, the Tribunal also has to have regard to the judgment of Girvan LJ in the case of Peifer  v  Castlederg High School and Western Education & Library and Another [2008] NICA 49, where he confirmed that a Tribunal is required to give effect to the terms of the overriding objectives, when it exercised any power given to it under the Rules of Procedure, which would include the power to order costs; and he stressed that these objectives were intended to be exactly what they were described as being, namely overriding objectives.  Indeed, he went on to state that:-

 

                        “Tribunals should be encouraged to use their increased costs powers set out in the Rules of Procedure to penalise time wasting or the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents.”

 

3.3      In the well-known case of McPherson  v  BNP Paribas [2004] IRLR 558, the Court of Appeal emphasised that withdrawal on its own is not necessarily unreasonable behaviour for the purposes of the said Rules of Procedure.

 

In that case, the claimant withdrew his case several weeks before the hearing so there was no decision on the substantive merits, but the Tribunal nevertheless made an Order for Costs in favour of the respondents.  Mummery LJ set out the conflicting considerations.  He stated, on the one hand, it was important for claimants not to be deterred from making a sensible litigation decision by dropping a claim because of the prospect of an Order for Costs on withdrawal, which may not be made against them if they fought on to a full hearing and failed.  He acknowledged that in most cases the withdrawal will result in a saving of costs.  On the other hand, he also recognised that the practice of never making Costs Orders on withdrawal might encourage speculative claims, by allowing claimants to start cases and to pursue them down to the last week or two before the hearing in the hope of receiving an offer to settle, and then, failing an offer, dropping the case without any risk of a costs sanction.  He concluded:-

 

                        “The solution lay in the proper construction and sensible application of the Rule.  The crucial question is whether, in all the circumstances of the case, the claimant withdrawing the claim has conducted the proceedings unreasonably.  It is not whether the withdrawal of a claim is in itself unreasonable.”

 

            On the facts of the McPherson case, the Court found that the Tribunal was entitled to conclude that there was unreasonable conduct at the proceedings on the part of the claimant. 

 

3.4       In a recent decision of the Court of Appeal in the case of Barnsley Metropolitan Borough Council  v  Yerrakalva [2011] EWCA Civ 1255, Mummery LJ took the opportunity to review the authorities in relation to the issue to costs under the Rules of Procedure applying in the Employment Tribunals in Great Britain, which are in similar terms to the Fair Employment Tribunals Rules of Procedure applying in Northern Ireland. 

 

            In particular, in the course of his judgment he stated:-

 

“39      I begin with some words of caution, first about the citation and value of authority on costs questions and, secondly, about the dangers of adopting an over analytical approach to the exercise of a broad exercise.

 

 40      The official words of [Rule 40] are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations.  Unfortunately, the leading judgment in McPherson delivered by me has created some confusion in the  ET, EAT and in this Court.  I say ‘unfortunately’ because it was never my intention to re-write the Rule, or to add a gloss to it, either by disregarding questions for causation or by requiring the ET to dissect the case in detail and compartmentalise the relevant conduct under separate headings, such as ‘nature’, ‘gravity’ and ‘effect’.  Perhaps I should have said less and simply kept the actual words of the Rule. 

 

 41      The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by a claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.  The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submission to the Court that, in deciding whether to make a Costs Order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed.  In rejecting that submission, I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances. 

 

42      On matters of discretion an earlier case only stands as authority for what are, or what are not, the principles governing the discretion and serving only as a broad steer on the factors on the paramount principles of relevance … .”

 

            In addition, Mummery LJ in the course of his judgment (see, in particular, Paragraphs 7 – 9) repeated that costs are in the discretion of the Employment Tribunal and the Employment Tribunal’s powers to order costs are more sparingly exercised and are more circumscribed by the Rules of Procedure than those in the ordinary Courts; and that an Employment Tribunal Costs Order is the exception rather than the Rule.  Mummery LJ, at Paragraph 49 of his judgment, also made it clear that Orders for Costs are based on and reflect broad brush first instance assessments. 

 

3.5      In the recent case of Sud  v  London Borough of Ealing [2013] EWCA Civ 949, Lord Justice Fulford, having reviewed the above legal authorities, referred to in the previous sub-paragraphs, stated at Paragraph 75 of his judgment:-

 

“On the basis of those authorities, although an award of costs against a paying party in the Employment Tribunal, is an exceptional event, the Tribunal should focus principally on the criteria established in Rule 40.  In the context of the present case, the Tribunal needed to consider whether the claimant’s conduct of the proceedings was unreasonable and, if it so concluded, it was necessary for the Court to identify the particular unreasonable conduct, along with its effect.  This is not a process that entails a detailed or minute assessment, but instead the Court should adopt a broad brush approach, against the background of the totality of the relevant circumstances.”

 

            (See a helpful summary of the authorities in relation to the making of an award of costs in the Tribunal, in Chadburn  v  Mann and Another [2015] UKEAT/0259/14.)

 

3.6      In the case of A Q Ltd  v  Holden [UKEAT/0021/12], the Employment Appeal Tribunal confirmed that the threshold test in Rule 40(2), (3) are the same whether a litigant is or is not professionally represented; but, in the application of those tests, whether a litigant is professionally represented may well require to be taken into account.  It held that a Tribunal cannot and should not judge a litigant-in-person by the standards of a professional representative.  It suggested that, since lay people are entitled to represent themselves in Tribunals and since legal aid is not available and will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves.  His Honour Judge Richardson stated:-

 

“Justice requires that Tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life … lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser.  Tribunals must bear this in mind when assessing the threshold test in Rule [35(3)].  Further, even if the threshold test for an Order for Costs are met, the Tribunal has discretion whether to make an Order.  This discretion will be exercised having regard to all the circumstances.  It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice.  This is not to say that lay people are immune for an Order for Costs; far from it as the case has made clear.  Some litigant-in-persons are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity … .”

 

In this context, it is also relevant to consider the judgment of Girvan LJ in Peifer when he stated:-

 

“When parties before the Tribunal appear in person, without the benefit of legal representation, the lack of legal experience on the part of an unrepresented party may lead to the pursuit of irrelevancies and unnecessary lengthy proceedings.  Whilst Tribunals must give some latitude to personal litigants who may be struggling in a complex field they must also be aware that the other parties will suffer from delay, incur increased cost, be exposed to unstructured and at times irrelevant cross-examination.  While we must have sympathy for a Tribunal faced with such a situation the Tribunal remains under the same duty to ensure that the overriding objectives and Regulation 3 are pursued.”

 

It is also relevant to note the judgment of the Employment Appeal Tribunal in the case of Jackson  v  Walsall Metropolitan Borough Council [UKEATPA/1247/10], when the Employment Appeal Tribunal decided that it would not interfere with the Employment Tribunal’s discretion to award costs against a claimant whose five claims had been dismissed, noting the claimant was a barrister with special experience in employment law and since she was a barrister meant that she should be alert to weaknesses in her case.  It also confirmed that a barrister specialising in employment law and asserting her knowledge is particularly open to scrutiny. 

 

In Liddington  v  2Gether NHS Trust [2016] UKEAT/0002/16, Mrs Justice Simler, when upholding an Order for Costs against a litigant-in-person, agreed such a person should not be held to the standards of a lawyer, made it clear this does not give such a person ‘a free pass’ when it comes to the risk of being ordered to pay costs.

 

In Smith and Hughes  v  Black and Persons Unknown [2016] NICH 16 Horner J cited, with approval, the judgment of Master Matthews in Jones  v  Longley [2016] EWHC 1309 :-

 

“There are not in our system two sets of rules, one for those who employ lawyers, and one for those who do not. There is only one set of rules, which applies to everyone, legally represented or not. The courts cannot and do not modify the rules for those who are not represented.”

 

Horner J also noted that, in Jones, Master Matthews “went on to say that although at the margins a personal litigant may be offered a little more leeway than a party who is legally represented”, there are no special rules for litigants-in-person as compared with those litigants who are represented.

 

Horner J also cited, with approval the judgement of Girvan LJ, in Magill  v  Ulster Independent Clinic [2010] NICA 33, when in the course of his judgment at Paragraph 16 he stated:-

 

“  …  a personal litigant cannot have an unfair advantage against represented parties by seeking to rely on inexperience or a lack of proper appreciation of what the law requires.  The application of legal principles poses a duty on the court to examine cases objectively without fear or favour to any party, represented or unrepresented.  While courts are conscious of the difficulties faced by a personal litigant representing herself and will strive to enable that person to present her case as well as they can, the dictates of objective fairness and justice preclude the court from in any way distorting the rules or the requirements of due process because one party is unrepresented.”

 

3.7      In the case of Peat & Others  v  Birmingham City Council [UKEAT/0503/11], Mr Justice Supperstone noted that for a party to succeed in arguing for costs on the basis of unreasonable conduct, it was not necessary to show that the other party had no reasonable prospect of success.  In his judgment he held, on the facts of the case, if the claimant’s solicitors had engaged with the issues and the costs warnings letters, they would have likely have appreciated that the claimant’s reasonable prospect of success was so thin that it was not worth going to the hearing.

 

As set out in Harvey on Industrial Relations and Employment Law, Paragraph 1047, Section P1:-

 

“Considering whether to award costs in respect of a party’s conduct in bringing or pursuing a case which is subsequently held to lack merit, the type of conduct that will be considered unreasonable by a Tribunal will obviously depend on the facts of the individual case and there can be no hard and fast principle applicable to every situation.  In general, however, it would seem that the party must at least know or to be taken to have known that his case is unmeritorious (see Cartiers Superfoods Ltd  v  Laws [1978] IRLR 315) … .”

 

3.8       Although in the case of Jilley  v  Birmingham and Solihull Mental Health NHS Trust [UKEAT/0584/06], HH Judge Richardson confirmed that there is no ‘absolute duty’ on a Tribunal to take ability to pay into account, he commented that it would in many cases be desirable to take means into account before making an Order, as the ability of a party to pay may affect the exercise of an overall discretion.  In Doyle  v  North West & London Hospitals NHS Trust [UKEAT/0271/11], the Employment Appeal Tribunal commented that Tribunals should always be cautious before making a very large costs award, given the very serious potential consequence to a claimant of such an Order because such Orders may act as a disincentive to those bringing legitimate claims.  It was suggested that, in such a case, it would normally be necessary for a Tribunal to raise the issue of the potential paying party’s ability to pay costs, even if the issue was not raised by on or on behalf of that party.  (See further Oni  v  NHS Leicester City [2012] UKEAT/0144.)  However, in Osonnaya  v  Queen Mary University [UKEAT/0225/11], the Employment Appeal Tribunal confirmed, if the matter is raised, the Tribunal is required to consider ability to pay; but if the matter is not raised there is no legal authority, imposing a legal duty on the Judge to raise the question, even with a litigant-in-person.  In Mirikew  v  Wilson & Co Solicitors [UKEAT/0025/11] it was held it was not necessary to take the claimant’s means into account if the claimant was voluntarily absent from the proceedings when the costs hearing was determined (although in the Court building).  If the evidence given by the claimant is contradictory or unreliable, again it is not necessary to take it into account (Shields Automative Ltd  v  Greig [UKEAT/0024/10]).  In the case of Vaughan  v  London Borough of Lewisham & Others [2013] IRLR 713 Underhill J, as he then was, approved the decision in Jilley and went on to hold that it was not wrong in principle to make an award where a claimant could not in her present financial circumstances, afford to pay and the Tribunal had formed the view that she might be able to meet it in due course. 

 

3.9       In Vaughan  v  London Borough of Lewisham & Others [2013] IRLR 713 Underhill J gave guidance in relation to the issue where an applicant for an Order for Costs has never applied for a Deposit Order and/or no costs warning has been given.

 

            Underhill J stated:-

 

“We do not believe that as a matter of law an award of costs can only be made where the party in question is being put on notice, by the making of a Deposit Order or otherwise that he or she is at risk as to costs.  Nor, however, do we believe that the absence of such notice, or warning, is necessarily irrelevant: indeed it was expressly relied on in a recent decision of Mr Recorder Luba QC as one of the reasons for not exercising a discretion to award costs under the cognate jurisdiction in this Tribunal – see Rogers  v  Dorothy Barley School [UKEAT/0013/12], at Paragraph 9.  What, if any, weight it should be given in any particular case must be judged in the circumstances of that case; and it is, as we have already observed, regrettable that the Tribunal does not expressly address the question.”

 

Indeed, Underhill J stated elsewhere in the judgment that he did not believe that the respondents’ failure to seek a Deposit Order, or otherwise to issue any costs warning asserting that the claims were hopeless, was cogent evidence that those claims had in fact any reasonable prospect of success.  He accepted that parties faced with what they believe to be weak claims/responses do not always seek Deposit Orders, on the grounds that sometimes it is thought that to do so risks the expenditure of further costs on a diversion which may not succeed or, which may only conduce to further delay appeals, or which in any event may not deter the claimant.  He concluded:-

 

“Such a view may be over pessimistic – and indeed we regard Deposit Orders properly used as a valuable tool for averting weak claims.  Nevertheless it is understandable; and that means the failure to seek an Order is not necessarily a recognition of the arguability of the claim.”

 

3.10    In Jilley it was held that once the Tribunal has decided that it will have regard to the paying party’s ability to pay then, as set out in the judgment of the Employment Appeal Tribunal:-

 

                        “ … it should set out its findings about ability to pay, say what impact this has on its decision whether to award costs or on the amount of costs, and explain why.  Lengthy reasons are not required.  A succinct statement of how the Tribunal has dealt with the matter and why it has done so is generally essential.

 

Therefore if the Tribunal has decided that it will have regard to the paying party’s ability to pay, it has to take into account what is has found to be the paying party’s ability to pay.”

 

In Jilley the Employment Appeal Tribunal held that the Rules are wide enough … to allow a Tribunal to take account of ability to pay by placing a cap on an award of costs even where it orders a detailed assessment.

 

(See further Arrowsmith  v  Nottingham Trent University [2012] ICR 159 and Vaughan  v  London Borough of Lewisham & Others [2013] IRLR 715.)

 

In the recent case of Howman  v  The Queen Elizabeth Hospital Kings Lynn [2013] UKEAT/0509/12, the Employment Appeal Tribunal held that, if the Tribunal decides to have regard to someone’s ability to pay when deciding what Order for Costs it should make, it requires to balance the need to compensate the applicant who has unreasonably been put to expense against the other litigant’s ability to pay.  It held ‘the latter does not necessarily trump the former, but it may do so’.

 

In Herry  v  Dudley Metropolitan Council [2016] UKEAT/0100/16 the EAT followed Arrowsmith and Vaughan and the bringing into the equation the claimant’s future earning capacity, where appropriate to do so.

 

As held in Arrowsmith, the assessment is not limited to an assessment of the paying party’s current means; it may have regard to the prospect these means may improve (see Paragraphs 38 and 39 of the judgment). 

 

In Vaughan, Underhill P stated:-

 

“28.     The starting point is that even though the Tribunal thought it right to ‘have regard’ to the appellant’s means that did not require it to make a firm finding as to the maximum that it believed she could pay, either forthwith or within some specified timescale to limit the award to that amount …

 

29.     On that basis the question for the Tribunal – given we repeat, it thought to right to have regard to the appellant’s means – was essentially whether that was indeed a reasonable prospect of her being able in due course to return to well paid employment and thus to be in a position to make a payment of costs; and, if so, what limit ought nevertheless be placed on her ability to take account of her means in that scenario and, more generally, to take account of proportionality … .”

 

However, Herry also held, whilst, having decided to bring into the equation the future earning capacity the Tribunal was bound to consider what that earning capacity might be and whether an award of the whole costs was reasonable and proportionate having regard to that earning capacity.

 

(See further Chadburn  v  Doncaster and Basset Law Hospital NHS Trust and Another [2015] UKEAT/0259/14 approving Vaughan, where an award of costs was upheld even though currently the claimant could not afford to pay : affordability was not the only criterion for the exercise of discretion.  It should be noted there was also evidence that her financial position was likely to improve in light of a realistic prospect of a return to work by the claimant.)

 

In Shields Automotive Ltd  v  Grieg [UKEATS/0024/10], the Employment Appeal Tribunal held that assessing a person’s ability to pay involves considering their whole means, which can include reference to a person’s capital, represented by property or other investments. [Tribunal’s emphasis] such as equity in a home, even if not readily realisable.

 

Interestingly, in relation to the Rules of Procedure relating to the imposition of a Deposit Order (see Rule 20(2)),  where a similar term relating to ability to pay is to be found, albeit with no discretion (compare Rule 41(2) – ‘may’).  In the case of Simpson  v  Strathclyde Police and Another [UKEATS/0030/11], a Deposit Order case, the Employment Appeal Tribunal took into account, when considering the claimant’s available resources, the claimant’s student loan.  Given the similarity, under both Rules, in respect of the terms relating to ability to pay, the Tribunal is satisfied the case law, in relation to the interpretation of both Rules – subject to the issue of discretion, must be considered.

 

In Oni  v  Unison [2015] UKEAT/0370/14/LA, Mrs Justice Simler, in a costs case, considering issues of ability to pay, confirmed:-

 

“A paying party’s means are not restricted to income, but may include capital : for example the individual share of a matrimonial home.”

 

Whilst acknowledging that joint assets can be taken into account, Simler J also indicated somebody else’s earning could not be taken into account when determining a paying party’s means.  In Abaya  v  Leeds Teaching Hospital NHS Trust [2017] UKEAT/0258/16, Singh J held that an Employment Tribunal had erred in taking into account the means of the claimant’s ex-wife, without explaining how that impacted the claimant’s ability to pay. 

 

In Chadburn  v  Doncaster and Bassett Law Hospital NHS Foundation Trust [UKEAT/0259 in her review of the relevant authorities, referred to previously, Mrs Justice Simler, in relation to the issue of means to pay stated at Paragraphs 10(iv) of her judgment:-

 

“Rule 84 makes clear that the means of a paying party in any costs award may be considered twice.  First, in considering whether to make an award of costs the Tribunal may take into account the paying party’s ability to pay.  Secondly, if an award is to be made, it may take ability to pay into account in deciding how much should be awarded.  If means are not to be taken into account, it is desirable that the Tribunal explain why that is the case.  Where means are taken into account, the Tribunal should set out its findings about ability to pay, identifying broadly what impact that has had on its decision, whether or not to make an award of costs or as to the amount and explaining why, albeit that this can be done briefly and succinctly:  Jilley  v  Birmingham and Solihull Mental Health NHS Trust … .”

 

 

3.11    In Health Development Agency  v  Parish [2004] IRLR 550, the EAT held that the conduct of a party prior to proceedings, or unrelated to proceedings, cannot form the basis of an Order for Costs.  In Davidson  v  John Calder (Publishers) and Another [1985] IRLR 97, it was held the Tribunal, when considering whether to exercise the discretion to award costs against a party whom it is considered has acted frivolously, vexatiously or otherwise unreasonably in conducting proceedings, it is the conduct in the course of the proceedings alone which has to be considered (see Paragraph 9).  The EAT also emphasised considerations of punishment are irrelevant to the exercise of the discretion. 

 

3.12    In Harvey on Industrial Relations and Employment Law Volume 4 Section P1 paragraph 1075, it is made clear that the grounds of abusive and disruptive conduct speak for themselves but indicates that factors that might induce a tribunal to award costs, on the basis of other unreasonable conduct, are excessive, prolixity and timewasting, unduly lengthy cross examination, witnesses calling unnecessary witnesses and making outrageous and unsubstantiated allegations.  Under the Rules of Procedure, as indicated previously, a relevant ground is “the bringing or conducting of the proceedings by the paying party has been misconceived” (ie no reasonable prospect of success).  Under the 2013 Rules of Procedure, which apply in Great Britain, this has been made a separate ground for the making of an order for costs; but it is recognised in Harvey, at paragraph 1061, the 2013 Rules, repeats, in essence what was in the previous Rules (which are the same as the present rules of procedure in NI) but does so more clearly and more accurately. 

 

            In the present proceedings, it has to be noted, when considering the issues referred to above, that the claimant’s claims were struck-out for failure to comply with an Unless Order of the tribunal, which related to requiring the claimant to reply to interlocutory orders of the tribunal.  The tribunal therefore had not considered the facts or legal merits of the claimant’s claims, at the time when the said claims were struck-out, which can be a relevant factor for a tribunal in exercising its discretion whether or not to make an order for costs in any particular case.  In Dean and Dean Solicitors – v – Dionissiou-Moussaoui (2011) EWCA Civ 1332, the Court of Appeal upheld a tribunal’s decision not to make a costs order on, in circumstances where the majority of the claimant’s claims had been struck-out on jurisdictional grounds or withdrawn so that the Employment Tribunal never reached the substantive stage of investigating their factual or legal merits.  A relevant issue in that case, in refusing the order for costs, was that the victimisation claim was continuing and the other matters, if they had proceeded to hearing, would have been contested.  In those circumstances, it was held by the Court of Appeal that the Employment Tribunal was not in a position to conclude that the contested claims, which had been struck-out, were false, or were for that reason, misconceived, frivolous of vexatious.  Mummery LJ stated that the Employment Tribunal had to do the best that it could with what it did know.  

 

4.1       The respondents’ representative called no oral evidence.  He made oral submissions, which largely reflected what had been stated in the application for an order for costs, dated 30 May 2018 and the attached Schedule of Loss and the earlier letter, dated 9 May 2018, as referred to previously.

 

4.2       In the attached costs schedule, to the letter dated 30 May 2018, the respondents’ representative stated as follows:-

 

                        “The respondent which is a public authority has incurred in respect of solicitors’ fees a total of £35,125 (inclusive of VAT of £5,846.40) to date in relation to this matter.  As per the attached fee note, Counsels’ brief together with fees for settling notices and appearances at Case Management Discussions together with the fee for the appearance at the hearing of the costs application is £8,550 (inclusive of VAT of £1,425).

 

            (1)     The claimant commenced her action against 15 respondents in relation to allegations back to 2003.  Instructions had to be taken from each of 14 individually named respondents in order to ensure that all allegations (and particularly those which were unclear) were addressed in the response. 

 

                     Solicitors’ costs incurred by the first respondent in preparing and lodging the response to the claimant’s claim: £7,507.50 exclusive of VAT.  The total cost is an average of £536.25 for preparation in relation to each respondent. 

 

                     It was apparent from the instructions from individually named respondents that the proceedings were misconceived if not vexatious and unreasonable.  All of their claims were either res judicata and covered by the tribunal’s letter of 11 May 2017 or were rehearsals of complaints about those matters.  All claims except for one allegation of 22 February 2017 were out of time.  The claim within time was misconceived.

 

            (2)     The claimant persisted with her claim despite the contents of the respondents’ response and in particular the contents of paragraph 62-64 which set out their views on the nature of the proceedings and their clear intention to seek to strike-out the proceedings and to seek warnings as to costs.

 

            (3)     Solicitors costs exclusive of VAT for attending Case Management Discussions at which Orders for Additional Information were obtained and with which the claimant did not comply and which resulted in the decision of the tribunal of 24 April 2018.

 

                     (a)       17.11.17 – solicitors’ costs:   £231

 

                     (b)       28.11.17 – solicitors’ costs:   £336

 

                     (c)       2.2.18 – solicitors’ costs         £273

                     (d)       15,3,18 – solicitors’ costs       £315

 

                     Counsel’s fee for appearances at the four CMDs (4 x £400 + VAT) as per fee note.

 

                     The records of CMDs confirm the claimant’s unreasonable conduct at the proceedings.

 

                     Costs incurred for the purpose of this application:

                     Counsel’s fees: £7,125

                     + £1,425 (VAT) = £8,550.

 

                     Solicitors’ fees in respect of paragraph 1 and 3 above £8,662.50 plus £1,732.50 (VAT) = £10,395.

 

                     TOTAL: £18,945 (application limited to £10,000)

 

                     Counsels’ invoice setting out the total fee due of £8,550, as referred to above made up as follows:-

 

                                 “Brief - £4,500

                                 Drafting            

                                 Notice for Additional Information – 2 number - £200

                                 Notice for Discovery £75

                                 Case Management Discussions (4 x £400) - £1,600

                                 Costs Application - £750

                                 Fee Due - £7,125

                                 VAT 20% - £1,425

                                 Total Fee Due: £8,550.00”

 

4.3      In the decision of the tribunal, recorded in the register and issued to the parties on 24 April 2018, I set out in considerable detail the history of these proceedings at paragraphs 1.6-1.24 of the decision, which, in my judgement, are relevant and material to my determination of the respondents’ application for an order for costs.  In the circumstances, I do not intend to repeat what I have set out in the above paragraphs in this decision but are relied upon me in my said determination of this application (see later).

 

4.4      The respondent’s response was presented to the Tribunal on 7 September 2017, ie the response to the claimant’s claim.  The said response form, referred to in the schedule of loss, is a lengthy and complex document containing in paragraph 6, the the details of the grounds of resistance, some 64 detailed paragraphs.  The response was on behalf of all 15 respondents.  It is not necessary to set these paragraphs out for the purposes of this judgement.  However I accept the said response would have required considerable preparation, including obtaining detailed instructions from the individual respondents in order to set out the detailed response, in so far as it was possible at that stage, from each respondent named by the claimant in the claim form.  I further accept that the response reflected the matters set out in paragraph 2 of the costs schedule and the complex nature of the response of the respondents; and it was certainly not a ‘standard’ response, as frequently is to be found in this tribunal and the response would have required considerable work by the representatives of the respondents over a period of time.  This has to be relevant to a proper assessment of the fees claimed in relation to the preparation of the response form.

 

            The respondents’ schedule of costs does not set out any detailed breakdown of the respondents’ solicitors costs in relation to the consultations with the individual respondents, such as hourly rate/dates/times etc.  I was informed that the solicitors’ costs were based, following a public tender, on an agreed retainer and there was therefore no mark-up for client care/complexity, which is to be found when there requires to be consideration of Taxing Master scales/Belfast Solicitors’ Association scales.  In relation to Counsel’s fees, I acknowledge that scales such as the ‘comerton scale’ in High Court proceedings may be of limited assistance when considering fees in employment proceedings.  Given the nature of these proceedings and the stage which they had reached and the fact the respondents has applied the cap of £10,000, I found limited assistance from the well known case law, relating to fees, to be found in Donaldson v Eastern Health and Social Services Board [1997] NI 232, Adair v Lord Chancellor [1996] NIJB 237 and Treacy and Another v Lord Chancellor [2011] NIQB 80.

 

            Counsel’s brief fee has been the subject of much case law in Northern Ireland and, in particular, what is covered by a brief fee and how it is calculated etc.  I appreciate the said case law related to civil proceedings in the High Court and not employment tribunal proceedings and each case was decided io its own facts (see, eg Northern Bank v Leyburn [1998] NICH5, [1999] NI62; McVicker v Harness and Others [2015] NIQB6; McLaughlin v MIB [2012] NIQB21; Crozier v Lyons [2004] NIQB; Harvey v The Taxing Master [2012] NIQB19).  The above case law emphasises the difficulties of proper assessment in relation to Counsel’s brief fee.  As stated in McLaughlin – “the principle remains unaffected however that the fee is that which the solicitor could have agreed with Counsel on delivery of the brief as a reasonable and proper fee for that case (see Carr v Poots [1995] NI420): value is clearly relevant but not derminative but so also is the stage at which the proceedings have reached or whether they have concluded and the amount of preparatory work required, even at the early stage of proceedings, carried out by counsel.

 

            In relation to the Costs Hearing itself, the respondents sought, for the purposes of this application, the following sums:-

 

            Solicitor’s costs:        £1,000 (to include preparation)

            Counsel’s fee:          £750

                                                _______

                                 Total      £1,750 plus Value Added Tax

 

5.1      Having carefully considered the submissions of the respondents’ representative, the said application, dated 30 May 2018 and the attached schedule, together with the case law referred to in the previous paragraphs of this decision, in light, in particular, of the matters set out in paragraphs 1.6 – 1.24 of the decision recorded and issued to the parties on 24 April 2018, as referred to above, I reached the following conclusions, as set out in the following sub-paragraphs.

 

5.2      Insofar as the respondents’ application for an order for costs is on the grounds that, pursuant to Rule 35(3) of Rules of Procedure that the bringing or conducting of the proceedings by the claimant had been misconceived (ie no reasonable prospect of success), I am not satisfied that it is appropriate for me to rely on this ground in these particular proceedings.  I do so with some hesitation, in light of the terms of the claimant’s claim form and the respondents’ response form and the absence of any clarification of the claimant’s claims in the interlocutory process, as set out in the tribunal’s decision recorded and issued to the parties on 24 April 2018.  However, the said “pleadings” are not the end of the matter and, in this context, I refer to paragraph 1.6 of the said decision and the reference to paragraph 1 of the record of proceedings, dated 7 November 2017, when the Employment Judge stated:-

 

                     “The precise legal and main factual issues in this case cannot be identified at present.  The respondents’ solicitor served Notices for Additional Information and Discovery on the claimant dated 27 October 2017.  I ordered the claimant to reply fully to these notices by no later than 16 November 2017, in order for both sides to agree the precise legal and factual issues in the case, to identify the relevant documents, and to ascertain whether a previously settled case overlaps with issues raised by the claimant in the current case.  The respondents’ representative submitted there may be a res judicata point in the case”.

 

            As a consequence, the interlocutory process, as set out in the subsequent paragraphs of the said decision, commenced, with, regrettably, little subsequent resolution which ultimately led to my decision to strike-out the claimant’s claims.  Taking account of the decision in Dean and Dean Solicitors – v – Dionissiou-Moussaoui (2011) EWCA Civ 1332 and the continuing uncertainty about what are the actual claims in this matter, I am not satisfied this ground has been established by the respondents, for the purposes of an application for an order for costs.  Although this “threshold test” is the same for a litigant person as a litigant who has the benefit of representation, I also take into account the guidance in AQ Limited – v – Holden, referred to previously that the status of a litigant may be taken into account when considering an application for an order for costs, albeit it is not determinative of the application.

 

5.3      Further, insofar as the respondents’ application for an order for costs is on the ground that the claimant, in bring the proceedings or conducting the proceedings has acted disruptively, I think that there is considerable overlap between this ground, in the particular circumstances of this case, and the respondents’ alternative ground, namely – “in bringing the proceedings or conducting the proceedings the claimant has acted otherwise unreasonably”.  There is no definition in the Rules of Procedure of what is meant by disruptively or, indeed, any specific case law in relation to same.  The Oxford Dictionary definition refers to “to serve or interrupt” or “seriously alter or destroy the structure”.  I think that disruptively must usually mean something more than “mere” unreasonable conduct.  Whenever the claimant actually attended the various Case Management Discussions and the pre-hearing review, I have to note that she conducted herself politely and appropriately. However, I consider, even taking into account the claimant is a litigant in person, her repeated late applications for adjournment of proceedings, as is described, for example, in paragraphs 1.11/1.12/1.14/1.6/1.19 of the said decision, recorded in the register and issued to the parties on 24 April 2018, at a time when the claimant had been made fully aware of the relevant requirements for early and prompt notice, these are clear examples of the claimant acting disruptively in the conduct of these proceedings.  However, since I am satisfied that, insofar as the claimant has acted disruptively, she is also acted otherwise unreasonably (see later) I do not think it is necessary to say anything further in relation to this ground of disruptive conduct relied upon by the respondents. 

 

5.4      Insofar as the application for an order for costs by the respondents on the ground that the claimant has, in bringing the proceedings or conducting the proceedings acted otherwise unreasonably,  I am satisfied, when the history of this matter, as set out in paragraphs 1.6-1.24 is considered, the claimant has conducted the proceedings otherwise unreasonably.  Although she is a litigant in person, the record of proceedings relating to each said hearing, as set out in the above paragraphs, provided her with considerable detail of what she was required to do but, regrettably, she failed to do so, as set out in those paragraphs; with the consequence, in my judgement, the said threshold test of conducting herself disruptively and/or otherwise unreasonably in the conduct of the proceedings has been established by the respondents.

 

5.5      Having concluded that the claimant has conducted the proceedings disruptively and/or otherwise unreasonably, pursuant to Rule 35(3) of Rules of Procedure, I then had to consider, in the exercise at my discretion, whether an order for costs should be made.  I acknowledge the case law which refers to the making of an Order for Costs is the exception rather than the rule.  However, in the circumstances of this case, as outlined in this decision, I have no hesitation in concluding that such an order should be made in the particular circumstances of this case, having regard to the history of the proceedings, as set out in the said decision recorded in the register and issued to the parties on 24 April 2018 and, in particular, having taken into account that the claimant was given every opportunity and time to conclude the interlocutory process, as she had been ordered to do; but she continued to fail to do so, despite the warnings and guidance as to what was required of her.  She demonstrated a pattern of behaviour, despite such warnings and guidance, which confirms in my judgement that she has conducted these proceedings disruptively and/or otherwise unreasonably.  I therefore concluded that, in the exercise of my discretion an order for costs should be made against the claimant.

 

5.6      The claimant did not attend the costs hearing on 7 September 2018, as referred to previously, and she did not provide any information to the tribunal in relation to her ability to pay any such order for costs.  The tribunal, pursuant to the said Rules of Procedure, is not required to have regard to the claimant’s ability to pay when considering whether a costs order should be made or how must that order should be.  In the absence of any such information, I could not properly have regard to the claimant’s ability to pay when determining that an order for costs should be made, as referred to above.  As referred to previously, in the tribunal’s email, dated 15 August 2018, the claimant was informed that the tribunal, pursuant to the Rules of Procedure, may have regard to her ability to pay when considering whether a costs order should be made or how much that order may be.  Despite this she provided no relevant information in relation to her said ability to pay any such order the amount of any such Order.  I was informed by the respondents’ representative, upon my enquiry, that, although the claimant remains an employee of the first respondent, due to the lengthy period of sick absence, she is no longer in receipt of any salary from the first respondent.  During her period of employment the claimant worked part-time for the first respondent and was in receipt of income of approximately £100 per week gross.  I understand that she also had additional employment with another employer, namely the Rivers Agency, but the respondents’ representative was not in a position to give me any information in relation to whether the claimant remains in such employment and/or whether any such employment was full-time or part-time.  In the circumstances, I also do not know what statutory benefits, if any, the claimant is in receipt of.  It has to be acknowledged that the respondents’ application for an order for costs is in the sum of £10,000 (taking account of the “cap”).  I note the guidance set out in the case law referred to in paragraph 3.8 of this decision and the suggestion that a tribunal should be cautious about making a large costs award, without having regard to the claimant’s ability to pay.  However, despite the claimant having been made aware that her ability to pay was a matter which the tribunal could take into account and was also told of the opportunity for her to make written representations if she was not going to attend any hearing, I am left in the situation that, even if I wished to have regard to her ability to pay,  I have been provided with no relevant information by the claimant.  In the circumstances, I have not taken into account the claimant’s ability to pay. 

 

5.7      Although I am satisfied that the costs, as set out in the respondents’ representative schedule of costs have all been incurred by the respondents, I have decided that I should not make an order of costs in the total sum requested in the said schedule but I should make some reduction on the basis that, despite the conduct of the claimant, it was inevitable, in tribunal proceedings, such as these, that some costs would be incurred by the respondents in relation to interlocutory hearings before any substantive hearing would take place.  This is difficult to assess, but I have decided, in the circumstances not to allow the fees claimed for the first Case Management Discussion of solicitor and counsel.  I accept that additional costs were incurred by the Solicitors for the respondents in the preparation of the response, than would normally be reasonable, in light of the number of respondents and the nature of the claims made against them.  However, in the absence of a detailed breakdown of the cases incurred, I find it difficult to assess whether the sum claimed for preparation of the response (£7,507.50 inclusive of VAT) is fair and reasonable in the circumstances.  It is much greater than would normally be expected but I recognise, as referred to previously in paragraph 4.4 of this decision the difficulties in this particular case, as outlined in the application.  Doing the best that I can I have decided, in the absence of further information, an appropriate figure is £3,750.00 plus Value Added Tax.  I accept as fair and reasonable the Solicitor’s costs for attendance at the Case Management Discussions (see before).  I have had concern whether Counsel’s brief fee of £4,500.00, plus Value Added Tax is fair and reasonable in the circumstances in light of the case law and the difficulties, as set out therein, of assessing such a fee.  I accept that, if this case had proceeded to a substantive hearing it would have been complex and have had a potential large value, which would have had to be reflected in the amount of any brief fee.  I also accept, even at this early stage of the proceedings, Counsel would have been engaged in a certain amount of preparatory work and overall care of the proceedings, including an initial perusal of the pages, which I accept are considerable, in order to give advice on how to proceed and to allow him to represent the respondents at the initial Case Management Discussions.  Clearly, if this matter had proceeded to a substantive hearing any brief fee for counsel would be considerably in excess of what is claimed in this application.  I accept Counsel’s fees for drafting interlocutory notices and attendance at the earlier Case Management Discussions (see before) and also the hearing, after which I decided to strike out the claimant’s claims, are fair and reasonable.  Taking all the above matters into account, and again doing the best that I can, I have decided, in the absence of further information, an appropriate brief fee at this stage of the proceedings is £2,250.00 plus Value Added Tax.  In this context, I am mindful of the dicta, as referred to previously, where tribunals are reminded that orders for costs are the exception rather than the rule.  I appreciate that the position is further complicated by the fact that the respondent has been unable to seek an order for costs in access of £10,000, for the reasons set out in paragraph 2.5 of this decision.  I also take into account that the claimant, as referred to in paragraph 1.8 of the said decision, had provided some replies to the respondents’ interlocutory notices, albeit these were not full and proper replies; but for which I think she must be given some limited credit when considering the total amount of the order of costs to be paid by her to the respondents.  I accept that the costs of the Solicitor and Counsel for this Costs Hearing, as claimed, are reasonable and appropriate. 

 

5.8      In light of my conclusions, as set out above, in relation to the appropriate deductions to be made to the costs claimed by the respondents in respect of Solicitors and Counsel’s costs, the figure claimed for costs together with Value Added Tax of the respondents is still in excess of the said cap.  This is an unusual case in that considerable costs have been properly incurred by the respondents at an early stage of the proceedings. 

 

5.9      In the circumstances, I am therefore satisfied that the respondents are entitled to an order for costs for the reasons set out in the previous sub-paragraphs.  I would have ordered accordingly, but for the statutory cap on such an order.  Therefore taking all the above matters in account, I have come to the conclusion that an order for costs in the sum of £10,000.00, inclusive of value added tax properly payable by the claimant to the respondents should be ordered to be paid by the claimant to the respondents, as a contribution towards the costs of the respondents in this matter. 

 

 

 

 

 

Employment Judge Drennan QC:      

 

 

Date and place of hearing:  7 September 2018.        

 

 

Date decision record ed in register and issued to parties: