FAIR EMPLOYMENT TRIBUNAL

CASE REF:	183/04FET
786/04

CLAIMANT:		Brian Morgan			

RESPONDENT:	Alan Carmichael		

DECISION
The unanimous decision of the Tribunal is that the hearing on 13 April 2006 be adjourned and it is ordered that the respondent pay the claimant £600 in costs.

Constitution of Tribunal:

Chairman:	Mr I Wimpress
		
Members:	Mr McCrossan
		Mr Kerr
Appearances:
The claimant was represented by Mr Shields Barrister-at-Law, instructed by Gordon Bell & Son, Solicitors.

The respondent was appeared in person and represented himself.	

1.	On 25 March 2004 the claimant filed an originating application in which he made
           complaints of unfair dismissal, failure to pay expenses plus holiday pay and 
           discrimination on the grounds of religious belief and/or political opinion. These 
           proceedings were listed for hearing on 13 April 2006.  The respondent did not enter 
           a Notice of Appearance.

2.	Notwithstanding his failure to enter a Notice of Appearance, the respondent attended the hearing and indicated that he wished to participate in the proceedings.

3.	In accordance with the transitional provisions in the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the 2005 Regulations’), this aspect of the case fell to be determined in part under the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’) and in part under the 2005 Regulations.  Rule 3 of the 2004 Regulations provides as follows:- 

	“3.	- (1)	A respondent shall, within 21 days of receiving the copy of the
originating application, enter an appearance to the proceedings by presenting to the Secretary a written notice of appearance –

(a)	setting out his full name and address and, if different, an
Address within the United Kingdom to which he requires notices and documents relating to the proceedings to be sent;

(b)	stating whether or not he intends to resist the application;  and

(c)	if he does intend to resist it, setting out sufficient particulars to show on what grounds.

- (2)	Upon receipt of a notice of appearance the Secretary shall send a copy of it to each other party.

- (3)	Two or more notices of appearance relating to originating applications in which the relief claimed is in respect of or arises out of the same set of facts may be presented in a single document, provided that in respect of each of the originating applications to which the notices so presented relate –

(a)	the respondent intends to resist the applications and the grounds for doing so are the same in each case;  or

(b)	the respondent does not intend to resist the applications.

- (4)	A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except –

(a)	to apply under rule 14 for an extension of the time appointed by this rule for entering an appearance;

	(b)	to make an application under rule 4(1);

(c)	to make an application under rule 11(4) in respect of rule 11(1)(b);
	
	(d)	to be called as a witness by another person;  or

(e)	to be sent a copy of a document or corrected entry in pursuance of rule 10(5), (8) or (9);

and in the rules which follow, the word “party” only includes such a 
respondent in relation to his entitlement to take such a part in the
           proceedings, and in relation to any such part which he takes.”

	Rule 14 is no longer extant.  The power in Rule 14 to extend time has been replaced by Rule 9 of the 2005 Regulations which gives a chairman general power to manage proceedings and insofar as relevant provides as follows:

     “9.  - (1) Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing.

    (2) Examples of orders which may be made under paragraph (1) are orders -

(e) extending any time limit, whether or not expired (subject to rules 4(5), 10(2), 21(5), 26(5), 29(1), 31(1), 34(7), 37(5) and 42(9));”

4.	The respondent alleged that although he had received copies of the originating
applications, he did not receive a covering letter from the Tribunal Office explaining the procedure to him.  Be that as it may, it is clear that the respondent took no steps to enter an appearance in the matter.  It is also material to note that the address for the respondent given by the claimant in the originating application was the respondent’s business address.   According to the respondent, the business closed in March 2005.  It would appear that he did not notify either the Tribunal Office or the claimant’s solicitor that he was no longer at that address.  The respondent told the tribunal that he had been in contact with the Labour Relations Agency on several occasions and had been informed that the case had been listed for hearing.  

5.	The tribunal explained to the respondent, the consequences of his failure to file a written notice of appearance as set out in Rule 3(4) of the 2004 Rules and that in particular this precluded him from taking any part in the proceedings other than as set out in Rule 3(4)(d).  The tribunal further explained that time to enter an appearance could be extended but that in order to do so, the respondent would have to make a written application.  The tribunal afforded the respondent time to consider his position.

6.	The respondent, having considered the matter, informed the tribunal that he wished to participate in the proceedings. After a further recess he produced a handwritten application in which he indicated that he wished to enter an appearance and to defend the claim.  He also explained the reasons for his failure to submit an appearance was that his business had closed down, that he had never received any correspondence about the claim and did not know that he had to respond.  The tribunal then heard submissions from both parties as to whether the respondent should be allowed to participate in the proceedings and, if so, whether the hearing should be adjourned.

7.	The tribunal noted that it had now received a written application from the respondent under Rule 9(1) to extend time for him to enter a notice of appearance.   The tribunal decided that the hearing should be adjourned and that the respondent’s application should be listed for a Pre-Hearing Review.  The tribunal directed the respondent to inform both the tribunal office and the claimant’s solicitor of any further change of address.

8.	The claimant’s counsel submitted that the tribunal should award the claimant costs and referred the tribunal to Rule 12(1) and (2) of the 2004 Rules.  He also submitted that the respondent should be liable for the costs of a wasted day and sought £1000 in costs which he indicated was the amount that it would cost the claimant in terms of his fee for representing him at the hearing.  The respondent contended that costs should not be awarded against him mainly on the basis that the amount sought was too high and that he couldn’t afford to pay it.  Rule 12 of the 2004 Rules makes provision in respect of costs as follows:

“12.	- (1)	Where, in the opinion of the tribunal, a party has in bringing the
proceedings, or a party or a party’s representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or a party’s actions in bringing the proceedings have been misconceived, the tribunal shall consider making, and if it so decides, may make –

	(a)	an order containing an award against that party in respect of
the costs incurred by another party;

(b)	an order that that party shall pay to the Department the whole, or any part, of any allowances (other than allowances paid to members of tribunals) paid by the Department under Article 83(2) of the Order of 1998 to any person for the purposes of, or in connection with, his attendance at the tribunal.

(2)	Paragraph (1) applies to a respondent who has not entered an appearance in relation to the conduct of any part in the proceedings which he has taken.

(3)	An order containing an award against a party (“the first party”) in respect of the costs incurred by another party (“the second party”) shall be –

	(a)	where the tribunal thinks fit, an order that the first party pay to
the second party a specified sum not exceeding £10,000.00;

(b)	where those parties agree on a sum to be paid by the first party to the second party in respect of those costs, an order that the first party pay to the second party a specified sum, being the sum so agreed;  or
	
	(c)	in any other case, an order that the first party pay to the second
party the whole or a specified part of the costs incurred by the second party as assessed by way of detailed assessment (if not otherwise agreed).

(4)	Where the tribunal has on the application of a party postponed the day or time fixed for or adjourned the hearing, the tribunal may make orders, of the kinds mentioned in paragraphs (1)(a) and (b),  against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.”

9.	The respondent behaved unreasonably in not entering an appearance previously and then attending on the day fixed for hearing and seeking to enter a notice of appearance and participate in the proceedings.  As a result the day fixed for hearing has been postponed. As is clear from Rule 12(2), a respondent is not immune from an order for costs simply because he has not entered an appearance.  The tribunal is empowered under Rule 12(4) to award costs where as a result of the application of a party, the hearing has been postponed. This has occurred in the present case.  In all the circumstances, we are satisfied that it is appropriate to award the sum of £600.00 in costs against the respondent and in favour of the claimant.  This order is made under Rule 12(4) and reflects a proportion of the legal costs incurred by the claimant in being represented at the hearing.   	

Chairman:

Date and place of hearing:	13 April 2006, Belfast.

Date decision recorded in register and issued to parties: