FAIR EMPLOYMENT TRIBUNAL
CASE REF: 27/14FET
CLAIMANT: Deirdre Convery
RESPONDENT: Invest NI
DECISION ON AN APPLICATION FOR COSTS
The claimant is ordered to pay to the respondent the sum of £2430 in respect of costs, for the reasons given at paragraphs 21-27 below.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge McCaffrey
The claimant did not attend and was not represented.
The respondent was represented by Ms Patricia Rooney of Tughans Solicitors.
1. This hearing had been convened to deal with an application for costs made by the respondent against the claimant following the strike out of the claimant’s claims of religious discrimination and sex discrimination on 6 October 2014. The strike out order followed the making of an Unless Order for failure actively to pursue her claim, and also failure by the claimant to pay a deposit as a condition of continuing with her claims as ordered by the tribunal on 4 September 2014.
2. The history of this matter is as follows. The claimant lodged a claim alleging religious discrimination and sex discrimination on 11 April 2014. That claim form was relatively brief in its detail. The claimant alleged that the respondent had discriminated against her by filling a new post from a Client Facing Manager reserve list, rather than advertising the post internally or externally. She believed that as a female Catholic (a group she claimed was under-represented at Grade 7 level in the respondent) she had been denied the opportunity to apply for a Client Facing Manager/Sustainable Development Manager role.
3. In its response the respondent noted that there had been a competition for posts in October 2013 when it was clearly stated that this competition would be used to compile a reserve list to fill future permanent and temporary vacancies in the 12 month period following the competition. The claimant had not applied to the competition at that time. The respondent also noted that in her claim form the claimant had not identified a comparator and her claim form did not indicate whether she had been discriminated against directly or indirectly on grounds of her religion or gender.
4. On 6 June 2014 the respondent wrote to the claimant with a request for additional information to which the claimant had not replied. On 23 June 2014 the respondent’s representative sent the claimant a copy of draft legal and factual issues in preparation for a Case Management Discussion scheduled for 25 June 2014. On 24 June 2014 the claimant requested a postponement of that Case Management Discussion on the basis that her partner’s father was gravely ill and that application was granted. On 27 June 2014 the respondent sent a reminder letter to the claimant pointing out that the Case Management Discussion had been rescheduled for 29 July 2014. The claimant was also notified of this by the Office of the Tribunals.
5. The claimant did not attend the Case Management Discussion on 29 July 2014 and did not contact the Office of the Tribunals to explain why she had not attended. The respondent’s representative wrote to the claimant, setting out draft legal and factual issues again on 30 July 2014, but received no response either to that letter or to a reminder sent on 18 August 2014. On 20 August 2014 the respondent’s representative wrote to the Office of the Tribunals seeking an Unless Order in respect of the claimant’s failure to reply to the Notices for Additional Information and Discovery. That correspondence was copied to the claimant under cover of a letter of 26 August 2014 from the Office of the Industrial Tribunals.
6. A further Case Management Discussion was held by telephone conference on 27 August 2014. The claimant did not attend at that time.
7. At the request of the respondent, a Pre-Hearing Review was arranged for 4 September 2014 to consider three applications on behalf of the respondent. The first was an application for a strike-out on the basis that the claimant had failed actively to pursue her case; the second was an application for a Deposit Order under Rule 20 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on the basis that the claimant’s claims of sex discrimination and religious discrimination had little reasonable prospect of success, and the third was an application for an Unless Order under Rule 18(6) due to the claimant’s failure to comply with the Orders of the Tribunal made at a Case Management Discussion on 29 July 2014 that she should reply to the respondent’s Notices for Additional Information and Discovery on or before 19 August 2014. The claimant did not attend that hearing and was not represented. She had not made any contact with the Office of the Tribunals to explain her absence or to seek a postponement of the matter. At the hearing of the Pre-Hearing Review, which I also dealt with, I was made aware that the claimant was actually at work that day having returned after a period of leave. The hearing proceeded in the claimant’s absence and the applications for a Deposit Order and the Unless Order were granted. The claimant failed to pay the Deposit Order, and failed to provide any reasons as to why her claim should not be struck out on the basis that it had been actively pursued by the claimant. Accordingly her claims were struck out on 3 October 2014.
8. The respondent subsequently made an application for costs against the claimant on the basis that she had acted unreasonably in the bringing of the proceedings and further that the proceedings were misconceived. The respondent’s application was made by letter dated 6 November 2014, which was copied to the claimant for comments on 7 November 2014. The claimant did not respond. By letter of 25 November 2014, the claimant and the respondent were notified that a Costs Hearing would be held on Thursday 18 December 2014 at 10.00 am. There was no response from the claimant to this correspondence until the morning of 18 December 2014. The claimant rang the Office of the Tribunals at 9.15 am to indicate that she would not be attending as she had been off work for four weeks on sick leave and was just back to work. She was invited by telephone message to clarify if she wished to apply for a postponement for medical reasons and invited to provide medical evidence of this. Instead she emailed the Office of the Tribunals to say that she had been off work for four weeks as a result of anxiety related to personal issues and stated “I will not be able to make the Cost Hearing scheduled for 10.00 am this morning”. She did not ask for a postponement and she did not provide any medical evidence in support of her assertions. The hearing was delayed for one hour to allow the claimant time to attend. A member of the tribunal staff telephoned the claimant to notify her of this. The claimant sent a further email setting out her personal situation (which she asked to be kept confidential) and said that she was suffering from severe anxiety. She said that she had returned to work on a phased return basis and that she would not be able to attend the rescheduled hearing “as even the thought of it is making me feel unwell”. She said that she could not attend the hearing in person “as this would set me back”. In light of this I decided that there was no evidence on medical grounds to postpone the matter and I continued with the hearing in the claimant’s absence.
9. The respondent’s representative based her application for costs on the claimant’s conduct of the matter to date. She also provided to me a copy of a Costs Warning Letter which had been sent to the claimant on 27 August 2014. That letter included a paragraph reading as follows:-
“It will be asserted that your claim to the tribunal is vexatious and unreasonable in the circumstances, and that the bringing of your proceedings is misconceived. We note you have made allegations surrounding the selection and recruitment process for a Client Facing Manager and UKTI post. You have not, however, in your claim form or replies to a Notice for Additional Information, identified as a comparator to support your allegations of discrimination on the grounds of gender and religion. You will be aware from the response submitted on behalf of Invest NI, that the respondent fully investigated your complaint and it is contended that the person who was successful in the recruitment process for UKTI was a female Catholic.
The respondent submits that your claim has no reasonable prospect of success”.
THE RELEVANT LAW
10. The tribunal’s power to award legal costs is set out in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Rules”). The general power to make a Costs Order is set out in Schedule 1 at Rule 38. We were specifically referred to the provisions of Rule 40, the relevant parts of which state as follows:-
“(2) A tribunal or [employment judge] shall consider making a costs order against a paying party where, in the opinion of the tribunal or [employment judge] (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or [employment judge] 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) above are where the paying party has in bringing 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”.
“Misconceived” is defined at Regulation 2 as including “no reasonable prospect of success”.
11. The powers of the Fair Employment Tribunal to make Orders for Costs are set out in identical terms to the terms of Rule 38 at Rule 35 of Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (the FET Rules 2005).
12. The principles in relation to the award of costs which apply in Fair Employment cases and Industrial Tribunal cases are therefore identical. The tribunal’s jurisdiction in relation to costs is outlined in Harvey on Industrial Relations and Employment Law Division P1 (Practice and Procedure) at paragraph 1044 and following. Harvey emphasises that, despite changes which have extended the tribunal’s powers to make Orders for Costs considerably, the fundamental principle remains that costs are the exception rather than the rule and that costs do not automatically follow the event in Employment Tribunals (McPherson v BNP Paribas (London Branch)  EWCA Civ 569 at paragraph 2; and Barnsley Metropolitan Borough Council v Yerrakalva  EWCA Civ 1255 at paragraph 7).
13. It is also important to note that tribunals must apply a two stage test to an application for costs. First of all, they must consider whether the relevant party’s behaviour falls within Rule 40(3) or Rule 35 as the case may be. Secondly, they must consider whether it is an appropriate case in which they should exercise their decision to make a Costs Order.
14. It is clear from considering the case law that the test to be applied in deciding whether or not to make an award of costs is more than a simple objective assessment of whether the claimant knew or ought to have known that his or her claim lacked substance or merit. The tribunal must look not just at the proceedings themselves but also at the claimant’s conduct in bringing or conducting the proceedings. The type of conduct which would be considered unreasonable by a tribunal would obviously depend on the facts of the individual case; there is no hard and fast principle applicable to every situation (Harvey, paragraph 1083). In Cartiers Superfoods Ltd v Laws 1978 IRLR 315 Phillips J considered it was necessary “to look and see what the party knew or ought to have known if he had gone about the matter sensibly”. In particular, if there was nothing in the evidence to support the allegations being made, this will involve an assessment of the reasonableness of bringing the proceedings, including a consideration of the question of whether a claimant ought to have known that there was no such important material.
15. Harvey (see paragraph 1064), indicates that “unreasonable” conduct includes conduct that is vexatious, abusive or disruptive. The discretion of the tribunal is not fettered by any requirement to link the award causally to the particular cost which had been incurred as a result of specific conduct which has been identified as unreasonable. In McPherson, Mummery LJ stated:-
“The principle of relevance means the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring [the receiving party] to prove that specific unreasonable conduct by [the paying party] caused particular cost to be incurred.”
16. Subsequently in Yerraklava, he stressed that this passage in McPherson was not intended to be interpreted as meaning either that questions of causation are to be disregarded or that tribunals must dissect the case in detail and compartmentalised conduct. As he observed:
“The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and ask whether there has been unreasonable conduct by the 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.”
17. He also observed that:
“a costs decision in one case will not in most cases predetermine the outcome of a costs application in another case: the factors of the case will be different, as will be the interaction of the relevant factors with one another and the varying weight to be attached to them”.
18. It is also relevant to consider the fact that the claimant is (as far as I have been made aware) not legally qualified and not legally represented. In the case of AQ Ltd v Holden [UKEAT/0021/12] in the Employment Appeal Tribunal, 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 in knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold test in Rule 40(2). Further even if the threshold tests for an order for costs is 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 without access to specialist help and advice. That is not to say that lay people are exempt from an order for costs; far from it as the case has been made clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity ...”
19. Harvey emphasises that when considering whether costs should be awarded on the grounds of unreasonable conduct, it is the conduct of a party in bringing or defending a claim, or in continuing to pursue the claim or defence, that can give rise to an award and not conduct occurring before the institution of proceedings (see paragraph 1066).
In this case the respondent had applied for costs on the basis that the claimant had acted unreasonably in the bringing of the proceedings and further that the proceedings had been misconceived. I do not therefore consider it to set out the case law in relation to any other aspect of the costs rule.
The Means of the Claimant
20. The Case of Jilley v Birmingham and Solihull Mental Health NHS Trust [UKEAT/0584/06] emphasises the importance of taking account of a claimant’s means, although lack of means to pay is not a barrier to a costs order being made. The judgment states as follows:-
“53. The first question is whether they should take the ability to pay into account. The tribunal has no absolute duty to do so. As we have seen if it does not do so, a County Court may do so at a later stage. In many cases it will be desirable to take means into account before making an order; ability to pay may affect the exercise of an overall discretion, and this course will encourage finality and may avoid lengthy enforcement proceedings. But there may be cases where for good reason ability to pay should not be taken into account; for example, if a paying party has not attended or has given unsatisfactory evidence about means.”
REASONS AND DECISION
21. In this case I consider that it would be appropriate to make an order for costs, on the basis that the claimant has behaved unreasonably in bringing these proceedings and that they are misconceived.
22. The reasons for making this order are as follows. The claimant lodged her claim with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 11 April 2014 and thereafter has not engaged in the process of pursuing her claim at all. Her claim form did not set out in any detail why she thought she had been discriminated against on the grounds of her religious belief or her gender, except to say, in the broadest of terms, that she believed she had suffered discrimination because her gender and people of her religious background were under-represented at a particular grade. Nor did she point to any other individual comparing her treatment to theirs and suggesting that she had been treated less favourably than they had been, as required by the discrimination legislation.
23. The history of this matter has been set out
in some detail at paragraphs 2-7 above. The claimant has failed to
particularise her claim by replies to a request for additional information.
She has failed to attend two case management discussions. The claimant also
failed, without explanation, to attend a Pre-Hearing Review on
4 September. When an unless order was issued, that was also ignored as was the deposit order. As a result of that, the claimant’s claims were struck-out.
24. The respondent then sought an award of costs. The respondent has produced to me estimates of their fees for the work done to date. A bill issued on 31 July for a profit costs of £1,020 and a further assessment of work in progress had been carried out showing work done to date to the value of £1,410 making a total of £2,430. I am satisfied from the information given to me by Mrs Rooney at the hearing that the hourly rate charged is well within the Taxing Master’s scale for solicitor’s costs.
25. I am satisfied too from the information before me and from my perusal of the file that the respondent has been put to time and trouble in instructing Solicitors, preparing a response to the claimant’s claim, probably interviewing witnesses, in preparing a request for additional information and engaging in correspondence with the claimant, all of which has been ignored. The respondent’s representative has advised me (and it has not been disputed by the claimant, because she has not attended) that the successful candidate for the job at issue in this matter was a female Catholic, and therefore someone of the same religious background and gender as the claimant. It follows from this that the claimant’s claims of sex discrimination and religious discrimination are misconceived, and the claimant has not produced any other information to suggest that this is not the case.
26. Secondly, I consider that the claimant has behaved in an unreasonable way in commencing these proceedings and in her conduct of them in that she has completely failed to engage in the procedure. I have taken into account the fact that she may not be legally qualified and that she is not legally represented. This does not excuse an individual who is employed as an EU Programmes Manager by the respondent (and therefore can safely be assumed to have familiarity with reading and understanding complex documentation) from at least trying to engage in the process. It certainly does not excuse her simply not attending case management discussions arranged to deal with the conduct and preparation of her case. It appears that the claimant has simply lodged her claim and then abdicated any responsibility for dealing with it. This has put the respondent in the situation where they have had to prepare to refute the claimant’s claim, and go to the time and trouble (as set out above) of making various applications in order to have the case struck out. It would have been a simple matter for the claimant to indicate by letter if she did not wish to proceed with her claim.
27. I am also conscious that the claimant received notice of both the pre-hearing review in September and this costs hearing several weeks in advance. In the case of the pre-hearing review she simply did not turn up. In the case of the costs application, she telephoned the Office of the Tribunals at 9.15 am on the morning of the hearing when the case was due to start at 10.00 am. She also failed to take advantage of the adjournment of an hour which was allowed to enable her to attend. Given that her place of work is less than half a mile from the Office of the Industrial Tribunals, and that she was fit to attend work on that day, I find this inexplicable and unreasonable on her part.
28. The claimant did not give any information in relation to her means, and I have only the information which was previously before me at the pre-hearing review, namely the information in her claim form about her salary which is £39,000 per annum giving her a take home pay of £2,200 each month. The email which she sent to the Office of the Tribunals on the morning of the hearing setting out her personal circumstances suggests that she may now be in quite a difficult financial situation due to her personal circumstances. However there was no direct evidence of this given to me as the claimant did not attend and there was no vouching documentation produced either. Accordingly it is difficult for me to give any weight to the claimant’s assertions.
29. In all the circumstances of this case I consider that the claimant has behaved unreasonably in the way she that she has conducted these proceedings and that her claims were misconceived. I also consider it appropriate in this case to exercise my discretion to make an award of costs in favour of the respondent. Given that the costs incurred by the respondent in my view are entirely reasonable in all the circumstances for the work which has had to be done in preparing to defend the claimant’s claim, I order the claimant to pay the sum of £2,430 to the respondent in respect of costs.
Date and place of hearing: 18 December 2014, Belfast.
Date decision recorded in register and issued to parties: