THE INDUSTRIAL TRIBUNALS
CASE REF: 2590/06 & 2508/06
CLAIMANT: Matthew Wood
RESPONDENT: 1. Anthony Barbour
2. James Mawhinney
3. Ann's Pantry
DECISION
The unanimous decision of the tribunal is that the first and second-named respondents' application for an extension of time to seek a review of the tribunal's decision of 27 May 2008 is refused. The first-named respondent is ordered to pay costs in the sum of £1,938.75.
Constitution of tribunal:
Chairman: Mr P Kinney
Members: Mr Lyttle
Mr Lowden
Appearances:
The claimant was represented by Mr Coll, Solicitor, of Elliott Duffy Garrett Solicitors.
The first-named respondent, Mr Barbour, appeared and represented himself and the second-named respondent, Mr Mawhinney.
Issues
- The claimant presented two claims against the respondents in 2006, his claim refs 2508/06 and 2590/06.
- A hearing of the claims took place on 27 May 2008. None of the respondents attended.
- On 19 June 2008 a Decision in the above matter was issued by the tribunal.
- The unanimous decision of the tribunal was that the claimant was unfairly dismissed by the first-named and second-named respondents, was entitled to notice pay, holiday pay and unpaid salary, was entitled to compensation for the first-named and second-named respondents' failure to provide written reasons for dismissal and a written statement of particulars of employment, and the tribunal ordered the first-named and second-named respondents to pay the claimant the sum of £41,055. The claims against the third-named respondent were dismissed.
The facts
- On 2 June 2008 Mr Coll, on behalf of the claimant, wrote to the tribunal requesting that a costs hearing be convened as the claimant was seeking the entirety of his costs against all the respondents. The letter confirmed that the grounds of the application were those set out in Rule 40(3) of the Industrial Tribunals Rules of Procedure 2004 and in particular that the respondents acted vexatiously, abusively, disruptively or otherwise unreasonably in the handling of their defence to the claims made by the claimant.
- On 9 June 2008 Mr Barbour telephoned the Office of Industrial Tribunals to confirm the date for the hearing of the substantive case and was advised that no date for hearing could be confirmed. On the same day a letter was sent from the Office of Tribunals to Mr Barbour, further to his telephone enquiry, confirming that a hearing had taken place as arranged on 27 May 2008 in his absence, a decision in respect of that hearing was being prepared and would be issued shortly.
- Mr Barbour wrote a letter dated 9 June 2008, received in the Office of Tribunals on 13 June 2008 in which he confirmed that he had spoken to the tribunal to confirm the date of the hearing of the case and was advised that no date of hearing could be confirmed.
- Mr Barbour subsequently wrote to the Office of Tribunals on 11 June 2008, hand delivered on that day to the Office, confirming:
"further to your letter of 9 June 2008 I have to advise you that I do not recall receiving any confirmation of the date of this hearing from the tribunal, which you (sic) letter informs me was held in my absence on 27 May".
- Copies of the correspondence was forwarded to each of the parties and on 19 June 2008 the decision of the tribunal was issued together with a notice setting out the rights of each of the parties to seek an appeal or to seek a review of the decision.
- On 7 July 2008 the Office of Industrial Tribunals received a further letter from Mr Barbour dated 11 June 2008. In this letter Mr Barbour stated:
"further to our previous correspondence regarding the date of the hearing of the above case, I wish to inform the tribunal that I did in fact receive correspondence confirming the date as 27 May 2008. However due to a genuine oversight on my part I was proceeding on the assumption that the hearing was due on 27 June."
Mr Barbour went on to ask for a review of the tribunal's decision on the grounds:
(1) "The tribunal failed to take into account a relevant factor, namely the respondent's non-appearance.
(2) It is a fundamental principle of natural justice that both sides be heard.
(3) That a previous tribunal decision which proceeded in my absence was revoked.
That relevant legislation and case law, including Article 6 of the European Convention on Human Rights support the case that the tribunal ought to have adjourned the hearing."
- This application for a review was received outside of the time limit set out in Rule 35(1) of the Industrial Tribunal Rules of Procedure 2005.
- On 10 July 2008 the Office of Industrial Tribunals wrote to the parties:
"As the first-named respondent's application for a review of the tribunal's decision was made outside the time limit set out in Rule 35 of the Industrial Tribunal Rules of Procedure 2005, the Chairman has directed that a hearing be arranged to consider whether, under Rule 35(1), it is just and equitable to extend the time limit for requesting a review.
If at the hearing the tribunal determine that the time should be extended, the tribunal will then consider the review application itself.
The Chairman also directs that the cost hearing arranged for 17 July 2008 be postponed and also be dealt with on the same day as the review matter".
- Both the first-named respondent's application for extension of time and for review, and the claimant's claim for costs, were listed for hearing on 27 August 2008.
- At the hearing Mr Barbour indicated that he was representing both himself and Mr Mawhinney in relation to the application for a review. He advised the tribunal that his application for review was made outside the time limits because he made a mistake and got the dates wrong. He was not aware of the precise time limits for seeking a review of a decision of a tribunal but knew that there was in general terms a time limit applicable. Mr Barbour could not recall whether he applied for a review as soon as he was aware that a hearing had taken place and a decision was imminent or whether he waited for the decision itself. He said he acted as quickly as possible. He stated that he was relying on his legal representatives to confirm dates to him. He said that no-one wrote to him but he still accepted that it was his fault and his mistake. He then contended that he was never told by anybody that there was a time limit in relation to seeking a review.
- The tribunal explained to Mr Barbour the nature of the discretion that it had to extend the time for a party to apply for a review of a decision. It set out in detail the factors that would be borne in mind in exercising this discretion. These included:
(a) prejudice to each of the parties in granting or refusing an extension of time;
(b) the length of and reasons for the delay;
(c) the extent the cogency of evidence would be affected by the delay;
(d) the extent to which the other party co-operated with requests for information; and
(e) the promptness with which the applicant acted once he knew of the facts giving rise to the possibility of taking action.
- Mr Barbour was reminded more than once of the matters that the tribunal would wish to take into account in deciding whether to exercise its discretion. In particular he was invited to address the tribunal on the length of the delay and the reasons for the delay. He declined to provide any further information.
- Mr Barbour had previously sought a review of an earlier decision of the tribunal at a time when he had legal representatives. He understood that he was following the same process now. He also was aware that in the earlier application for a review there was an issue regarding the need for an extension of time to seek the review.
- Mr Barbour had sacked his previous solicitors some time before the 9 June 2008. He had then been relying on his accountants to get in touch with legal representatives and understood that they had retained a barrister to deal with his case. He did not know if a solicitor had been appointed but assumed there was but he himself had no direct contact. The only correspondence that he had was with his accountants. He was subsequently informed by his accountants that the barrister could not take his case for family reasons. He could not recall whether he had discussed the decision or the need for a review of the decision with the accountant or with any solicitors. He could not recall whether he had discussed the matter with Mr Mawhinney, the second-named respondent. Mr Barbour was aware by 10 June 2008 that a hearing had taken place on 27 May 2008 and had a copy of the decision of the tribunal by 20 June 2008. He had also received correspondence from Elliott Duffy Garrett Solicitors, on behalf of the claimant, referring to the decision that had issued. Mr Barbour recalled that he also spoke to the Federation of Small Businesses in an effort to obtain legal advice but could not recall the date or dates on which he spoke to the Federation representatives or the content of those conversations.
- Mr Barbour, in his initial submissions, informed the tribunal that he was unaware of the hearing date of 27 May 2008 for the substantive case as he was relying on his legal representatives to confirm dates. In cross-examination he subsequently amended his recollection to say that he had in fact been notified by his previous solicitors, the Industrial Tribunals Office and Elliott Duffy Garrett.
- Mr Barbour also maintained that he had made and hand delivered his application for a review of the tribunal's decision on 11 June 2008. He did not make this point in his original submission to the tribunal, and after further cross-examination on the point by Mr Coll confirmed that he accepted the 7 July as the date on which he handed in his application for a review.
- The two letters written by Mr Barbour and both dated 11 June 2008 are inconsistent with each other, one saying that he had no correspondence and no knowledge of the hearing date and the second saying he had but had mistaken the month. Mr Barbour did not consult a solicitor directly in relation to this matter, relying instead on his accountants and on his contacts with the Federation of Small Businesses. His reason for not obtaining legal advice directly was the underlying cost of legal advice. Costs were prohibitive but the Federation of Small Businesses would provide legal advice at a reduced cost.
- Since the claimant lodged his claim, Mr Barbour had availed of the services of four different legal representatives.
The law
- Rule 35 of the 2005 Rules of Procedure governs review hearings. Rule 35(1) states "an application under Rule 34 to have a decision reviewed must be made to the Office of Tribunals within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a Chairman if he considers that it is just and equitable to do so".
- The application by Mr Barbour for a review of the tribunal's decision of 19 June 2008 was made after the expiry of the time limit. He was therefore reliant on the exercise of the discretion of the tribunal to extend time. The tribunal considered its discretion in light of the factors identified by the tribunal to the parties at the outset, and the overriding objective. The tribunal considered in particular the prejudice to each party in granting or refusing an extension of time, the length of and reasons for the delay, and the promptness with which the first-named respondent acted once he knew of facts giving rise to the possibility of taking action.
- In considering these matters the tribunal had particular regard to the following facts:
(a) Mr Barbour had extensive experience of other legal advice in the past in this case but gave no credible evidence of taking steps to obtain legal advice on the issue of seeking a review of the tribunal's decision.
(b) The respondents had already been through a review process at which the requirement for an extension of time to seek review was an issue and Mr Barbour was aware that time limits applied to the application for a review.
(c) Mr Barbour was aware of the facts giving rise to the possibility of seeking a review of the tribunal's decision some time before the decision issued but took no steps to address the situation.
(d) He provided no cogent or credible evidence for either the length of the delay or the reasons for the delay despite prompting by the tribunal.
(e) The tribunal also took into account the inherent improbability of the case made by Mr Barbour and the many inconsistencies in the evidence given to the tribunal.
- For these reasons, the tribunal decided not to exercise its discretion to extend the time to seek a review.
The costs issue
- Mr Coll addressed the tribunal on the issue of costs. He confined his request for costs to the period from June 2007 that being the date that this matter was initially settled between the parties and which was subsequently dishonoured by the respondents. Mr Coll contended that it was at that stage that the respondents commenced their unreasonable conduct and at that point became liable for costs. Mr Coll indicated that the claimant's main contention was that the respondents in their handling of the case acted vexatiously, abusively, disruptively or otherwise unreasonably. He submitted this was a matter of fact to be determined by the tribunal. He made his application in relation to both Mr Barbour and Mr Mawhinney but did not pursue his application against Ann's Pantry, the third-named respondent. Mr Coll contended that the respondents never at any time intended to act in a bona fide manner towards either the tribunal or the claimant.
- On 14 August 2007, after the proposed settlement agreement had collapsed, a notice of hearing was sent to the parties providing a hearing date for the substantive issues of 29 August 2007. Mr Barbour wrote to the tribunal, by letter received on 23 August 2007, stating that he was on holidays at the hearing date and seeking an adjournment. The decision regarding the adjournment was left to the tribunal hearing the matter who decided to proceed in his absence and in the absence of Mr Mawhinney who gave no explanation as to his absence. Mr Barbour subsequently sought a review of that decision which was listed for 14 December 2007.
- On 7 December 2007 Hewitt and Gilpin, Solicitors, who were then acting for Mr Barbour, wrote to the Office of Tribunals to confirm they were coming off record. A letter of 11 December 2007 from Mr Barbour sought an adjournment of the review hearing scheduled for 14 December. The Chairman deferred the decision on the adjournment to the date of hearing. On that date Mr Barbour's new legal team appeared and an adjournment was granted until February 2008. In that record of proceedings the tribunal records "the tribunal took note of the fact that there had been four hearings in this case. The tribunal agreed with Mr Coll that the actions of the respondents amounted to procrastination which had resulted in costs for the claimant and the tribunal."
- The review hearing was eventually heard on 22 February 2008 and the respondents were successful. The matter was listed before this tribunal on 27 May 2008 when none of the respondents attended and a decision in favour of the claimant was made. Thereafter the history of events is as recorded in this decision.
- Mr Coll indicated that costs were sought on the basis of an hourly rate of £165 per hour plus VAT and disbursements. He indicated the time during the period in question was approximately 33 hours which he had rounded down to 30 hours. He sought an order for costs against the first-named and second-named respondents in the amount of £4,950 plus VAT totalling £5,816.25.
- Mr Barbour submitted that he had not behaved unreasonably or vexatiously. He declined, after invitation and explanation from the tribunal, to provide any evidence regarding his ability to pay any costs which may be awarded.
The law
- The tribunal's power to make cost orders is contained in the 2005 Rules of Procedure. Under Article 40(3) a tribunal may make a costs order where "the paying party has in bringing 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". However Mr Coll indicated that he was not contending that the bringing or the conducting of the proceedings was misconceived.
- Under Rule 41(1)(A) the amount of any costs order can be determined by the tribunal specifying the sum which the paying party must pay to the receiving party, provided the sum does not exceed £10,000. By Rule 41(2) the tribunal may have regard to the paying party's ability to pay when considering whether it shall make a costs order, or how much that order should be.
- Mr Coll relies on Rule 40(3) in this case. Before the tribunal can make an order for costs under Rule 40(3) it must firstly be shown that the respondent's conduct of the proceedings comes within the range provided, that is that he or they have behaved vexatiously, abusively, disruptively or otherwise unreasonably and secondly if the tribunal so determines then the tribunal must consider whether it should in all the circumstances of the case exercise its discretion to make a costs order.
- On a review of the facts before it the tribunal was unable to conclude that Mr Mawhinney has behaved unreasonably as he appears to have played no part in the proceedings at all. There was no evidence of any other behaviour on his part which did amount to vexatious or unreasonable behaviour. Earlier legal advisors had informed the tribunal that they appeared only on behalf of Mr Barbour and were not instructed by Mr Mawhinney.
- The tribunal therefore declines to make any order for costs against Mr Mawhinney.
- In relation to Mr Barbour, the tribunal considered carefully the submissions made by the parties. This tribunal was not of course seised of the earlier proceedings and relied on the submissions made today in reaching conclusions regarding conduct of the parties. It also however had regard to the record of proceedings and to the earlier decisions of the tribunal in this case. In relation to the earlier hearing of the substantive case in August 2007, the tribunal is unable to conclude that Mr Barbour's behaviour was unreasonable. In August 2007 he was unable to attend the hearing date because of pre-arranged holidays and an explanation was accepted by the tribunal at his review hearing in February 2008. The tribunal is unable to accept that the conduct of that review hearing in those circumstances was unreasonable.
- As a result of the review the case was relisted for hearing in May 2008, Mr Barbour's failure to attend was not of itself sufficiently unreasonable as to warrant the imposition of costs. However, the tribunal did conclude that Mr Barbour's request for a review on the basis of the evidence heard today, was vexatious with no reasonable prospect of success. Furthermore the tribunal concluded that Mr Barbour's behaviour in the autumn of 2007 when the review hearing listed for 14 December had to be vacated on the day of hearing, was unreasonable and the tribunal refers to the comments of the Chairman of the Tribunals in the record of proceedings quoted above in support of that conclusion.
- Mr Coll indicated to the tribunal that of the time claimed, approximately 20 hours, related to the hearings themselves in the tribunal with the other 10 hours relating to general correspondence and ancillary matters. He indicated that each of the hearings had an approximately equal allocation of time. Based on this the tribunal concludes that each of the hearings equated to approximately 4 hours being 1/5 of the totality of 20 hours. Thus we are prepared to award costs in relation to two of the hearing dates being a total of 8 hours, together with a further 2 hours for the consequential correspondence and ancillary matters that would be attached.
- The tribunal therefore makes an order for costs in the sum of £1,938.75 (£1,650 + VAT) against Mr Barbour, the first-named respondent.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 27 August 2008 at Belfast.
Date decision recorded in register and issued to parties:
