Before : |
J. A. Clyde-Smith O.B.E., Commissioner |
Between |
Professor Claire de Than |
Applicant |
And |
Institute of Law and Others |
Respondent |
Professor de Than appeared in person.
Advocate V. Milner for the Respondent.
judgment on costs
the COMMISSIONER:
1. Following the handing down of the judgment in this matter ("the Judgment")(de Than v Institute of Law and Others [2021] JRC 098) refusing the Applicant leave to appeal the interlocutory judgment of the Employment and Discrimination Tribunal ("the Tribunal") of the 1st October 2020 ("the Interlocutory Judgment"), the Respondent applies for its costs on the indemnity basis.
2. The Judgment was issued to the parties in draft on 22nd March 2021, with comments to be submitted in the usual way by 26th March 2021. The Respondent provided its brief comments on 25th March 2021 and at the same time filed a written application for costs, setting out its grounds.
3. The Judgment was due to be handed down on 31st March 2021, but the Applicant sent lengthy comments and a request for reconsideration by e-mail timed at 16.45 the night before. To allow me time to consider those comments and for the Respondent to respond, the hearing had to be adjourned to 8th April 2021. The Applicant was given leave to attend that adjourned hearing by StarLeaf on the grounds that she was in isolation.
4. On 7th April 2021, again on the eve of the adjourned hearing, the Applicant sent by email a 9-page written submission on the issue of costs timed at 16.17 hrs. At the adjourned hearing on 8th April 2021, Advocate Milner reiterated briefly her written submissions on costs. Applying the principles set out in Watkins v Egglishaw [2002] JLR 1, she said it was clear that the Respondent had been the successful party in that the Applicant's application for leave to appeal had been dismissed, and the Respondent should have its costs. As to whether costs should be awarded on the indemnity basis, she cited the case of Leeds United v Weston [2012] JCA 088 and submitted that there had been a degree of unreasonableness in the conduct of the Applicant, justifying the Respondent being awarded its costs on the indemnity basis. She noted the following in particular:
(i) The additional cost to which the Respondent had been put since October 2019 in terms of having to deal with the Applicant's repeated issuing of proceedings against multiple respondents, including individual Governors, making each of the matters more complex and time consuming than would otherwise have been the case.
(ii) The additional costs incurred in preparing for and attending the case management hearing on 22nd September 2020, and subsequently, in terms of having to address those matters which had since been the subject of the Applicant's repeated applications to try and overturn the interlocutory judgment of the Deputy Chairman, including the present application; and
(iii) The six months delay in proceedings since 1st October 2020 caused by the Applicant's repeated applications to try and overturn the interlocutory judgment of the Deputy Chairman including the present application;
5. The Applicant then attempted to address me via StarLeaf, but I was unable to hear her properly and had no option but to adjourn the matter again to 23rd April 2021. I gave the Respondent leave, if it so wished, to file a written reply to the Applicant's written contentions on costs, and it filed that reply on 14th April 2021.
6. In her written contentions, the Applicant made a number of submissions as to why she should not be ordered to pay any costs.
7. She questioned whether there was a right for the Respondent to seek costs at all, when the underlying claim before the Tribunal was ongoing, and when the Tribunal itself had no power to award costs. She submitted that in England, the Employment Appeals Tribunal, for which there is no equivalent here, is strictly limited in the circumstances in which costs can be awarded. She said such awards were rare.
8. I agree with Advocate Milner that the jurisdiction of the Court to award costs in respect of all proceedings before it under Article 2(1) of the Civil Proceedings (Jersey) Law 1956 ("the Civil Proceedings Law") is clear. There are exceptions to this general position, for example proceedings under the Capacity and Self-Determination (Jersey) Law 2016 (see Royal Court Rule 14A/12(2)), but there is no such exception in Part 15B of the Royal Court Rules, which deals with appeals from the Tribunal.
9. Whilst there have been no reported judgments of the Royal Court awarding costs in respect of appeals from the Tribunal, there are two Court of Appeal decisions where it has awarded costs under the Civil Proceedings Law in relation to appeals ultimately derived from decisions of the Tribunal - see JT Limited v Wood [2016] JCA 221 and SEB v Fire & Rescue Services Association [2020] JCA 020A (the latter case involving a Collective Employment Dispute under the Employment Regulation (Jersey) Law 2007).
10. The Applicant submitted that it was important that claimants should not be discouraged from bringing appeals when they have genuine concerns about errors made by the Tribunal and that the Royal Court, when dealing with appeals, should not frustrate the purposes of the Tribunal. To award costs at an interlocutory stage risks pressurising claimants into dropping their claims or forcing them to settle in order to meet an order for costs which could defeat the overriding objective.
11. The Applicant argued that the Respondent had no need to incur any costs in any event, because it was insured, and many of its Governors are advocates. Furthermore, she said the Respondent had no need to argue that it, rather than the Governors, should be liable. The Governors were not acting in the interests of the Respondent or its students by excluding her from her position within the Respondent.
12. The Applicant then argued that this is not the right time for the Respondent to make a claim for costs, as they should only be awarded at the conclusion of her claims in the Tribunal.
13. Finally, and if I found that the Royal Court does have the power to award costs, then the Applicant submitted that applying the usual rules as to costs in civil cases before the Royal Court, costs should not be awarded in this case for a number of reasons, namely:
(i) The Respondent having conceded that the Applicant was unfairly dismissed, she was the victim here.
(ii) The Respondent had itself been guilty of causing delay in the proceedings before the Tribunal and failing to make disclosure.
(iii) Advocate Milner had herself caused delay and was acting under a conflict of interest between the interests of the Respondent and its Governors.
(iv) The Applicant had consistently offered to settle the claims before the Tribunal in exchange for being reinstated, together with the payment of reasonable compensation.
(v) Having been dismissed, she was struggling to survive without any substantial income. Her life savings had gone on supporting herself for the 30 months since her dismissal.
(vi) She was being forced into accepting a financial settlement when her career had been destroyed. The Respondent was seeking a 100% reduction in the compensation payable for the unfair dismissal pursuant to Article 77F of the Employment (Jersey) Law 2003. If that succeeded and she is ordered to pay costs to the Royal Court on this appeal, the result would be the victim paying compensation to the wrongdoer.
(vii) It was not appropriate to regard the Respondent as the winner, as the Applicant had succeeded in her argument that the Governors were agents of the Respondent.
14. In terms of the Applicant's financial position, Advocate Milner informed me that the Applicant had been offered, and rejected, more than a year's pay. Advocate Milner also produced an extract from the Public Registry showing that the Applicant owned an apartment in St Helier.
15. In the Applicant's oral submissions made on 23rd April 2021, she made the following further points:
(i) She confirmed that she owned an apartment in St Helier. She said it was worth £160,000 and subject to a mortgage of £40,000. She was teaching law on-line and in person and last year earned £18,000 for the whole year.
(ii) She informed me that she had a number of disabilities and was suffering from a number of medical conditions which out of respect for her privacy I will not detail here.
(iii) Whilst it was clear that claimants are at no risk as to costs in bringing claims before the Tribunal, there was no warning in the Tribunal documentation about the risk of adverse costs orders being made by the Royal Court should claimants exercise their right to appeal on a point of law.
(iv) The costs being sought by the Respondent (£13,053.60) was a life-changing amount of money and if ordered, would militate against access to justice. She referred in this respect to the Supreme Court decision in Regina (UNISON) V Lord Chancellor (Equality and Human Rights Commission and another intervening) (Nos 1 and 2) [2017] UKSC 51. No barrier, she said, should be put in her way.
(v) She had not done anything out of the ordinary, simply exercising her right of appeal on a point of law. It would be disproportionate to award costs against her, and to do so would risk her life.
16. Some of the points made by the Applicant relate to the conduct of the proceedings before the Tribunal, whereas I am concerned only with the conduct of the appeal, and I can see no criticism of the conduct of the Respondent in the appeal.
17. I reject outright the submissions of the Applicant on the Respondent's need to incur costs. The Respondent is perfectly entitled to be legally represented and the existence or not of insurance and the fact that some of the Governors are advocates is irrelevant.
18. Any issue of conflict is for Advocate Milner, but she informed me that the issue had been addressed early in the proceedings following a complaint made on behalf of the Applicant against her firm. A complaint by the Applicant to the Law Society in this respect had been dismissed. Whether the Respondent should stand behind its Governors was a matter for it, but it was perfectly entitled to do so.
19. In terms of the arguments on appeal, whilst I made the point in the Judgment that as a matter of trite law directors of a company are its agents, the question that arose was the true nature of the Applicant's case as pleaded. I had no reason to question the conclusions reached by the Deputy Chairman (paragraph 51), and specifically approved his findings in relation to Article 31 and Article 33 of the Discrimination (Jersey) Law 2013 ("the Discrimination Law") (paragraph 57), upon which the Applicant relied, and his distinguishing the case of Bungay and Another v Saini & Others UKEAT/0331/10/CEA (paragraph 63). Finally, I said at paragraph 67 that nothing had gone wrong in this case justifying the intervention of the Royal Court in what was an interlocutory judgment. It is readily apparent that the Respondent was the winner in this application for leave to appeal and there were no relevant issues upon which it can be said that the Applicant succeeded.
20. The Applicant's submission on the timing of the application for costs has no merit. The Royal Court has only become involved in this matter in relation to the appeal, and if it is to make a costs order, now is the time to do so, the appeal having been finally determined. The Royal Court's assessment of the costs application in relation to the appeal before it will not be facilitated in any way by the ultimate outcome of the Applicant's claims before the Tribunal.
21. The Unison case was concerned with the payment of fees by those wishing to make claims in the English Employment Tribunals and appeals to the Employment Appeals Tribunal, the purpose being to transfer the costs burden from the taxpayer to the users of those tribunals. It was held that such fees were unlawful, both at common law and under European Union law, as hindering and impeding the right of access to the courts.
22. I am not concerned here with the charging of fees to claimants before the Tribunal, as there are no such fees. Nor is there any exposure to orders for costs before the Tribunal. The position in that respect contrasts with the position in England, where costs can be ordered both before the employment tribunals and before the Employment Appeals Tribunal, but on a restricted basis. The position was explained by Lord Reed at paragraph 27 of his judgment in the Unison case:
" The recovery of fees by successful parties
27 The traditional view that ETs should be an inexpensive forum is reflected in the fact that the usual rule on costs which applies elsewhere in the civil justice system - that costs follow success - has never applied in ETs. In general, a party to ET proceedings is only required to pay costs where he has acted vexatiously, abusively, disruptively or otherwise unreasonably in either bringing or conducting the proceedings. ......"
There is no suggestion in the Unison case that the usual rules on costs in civil proceedings were in any way unlawful either at common law or under European Union law or that proportionate costs orders in any way hindered or impeded the right of access to the courts.
23. The position, therefore, in Jersey in relation to costs is that no costs orders can be made by the Tribunal, but costs orders can be made under the Civil Proceedings Law on appeals to the Royal Court and to the Court of Appeal. There is no authority for the proposition that on such an appeal the usual rules on costs in civil cases (which would include proportionality) should not be followed - indeed, the Court of Appeal applied the usual rules on costs in JT (Jersey) Limited v Wood.
24. I am reminded of this guidance from the Court of Appeal on costs awards in Flynn v Reed [2012] (2) JLR 226, which was concerned with costs orders against legally aided litigants. At paragraph 40, Beloff JA said this:
"40 In my view, costs awards should be based on two major considerations: merits of the case (as adjudicated upon by the court) and the conduct of the parties in the litigation (as appraised by the court). These are not the only considerations. A court may, for example, properly decline to make a costs order which might aggravate the relationship between the parties and for that reason be undesirable in the public interest or one which would be futile because the party against whom it would otherwise be made is impecunious. But, save it may be in exceptional cases (its existence or extent we do not need to consider in these proceedings), the means of the parties are, in our view, outwith the matrimonial field, not relevant. No one, after all, is compelled to bring a claim or to defend one. A potential exposure to costs, if unsuccessful, is itself a salutary discipline against maintaining from either perspective an untenable position. A person not in receipt of legal aid would not expect the court to absolve him from liability to pay costs or to count them if he unsuccessfully pursued (or resisted) a claim simply because of the financial burden in consequence imposed upon him. We cannot see any reasonable basis for treating a legally-aided party differently. ..."
25. Applying this guidance, the means of the Applicant, who is not impecunious, are not relevant and I am concerned with two major considerations, the merits of her appeal (which I have considered above) and her conduct in the appeal. There is no authority for the proposition that claimants appealing from decisions of the Tribunal should not be exposed to the salutary discipline of proportionate costs orders being made against them. No issue as to hindering or impeding the Applicant's access to justice arises because she brought the appeal of her own free will; she was not compelled to do so. She should therefore bear the consequences of her own actions.
26. The fact that the Respondent has not defended the unfair dismissal claim does not give the Applicant immunity from the consequences of her subsequent conduct either in relation to her claims or in the exercise of her right of appeal. If the Tribunal were, properly, to reduce her award for unfair dismissal to zero under Article 77F, and she were to be ordered to pay the costs of her unsuccessful appeal, she would be the author of her own misfortune.
27. The specific matters relied upon by Advocate Milner to justify indemnity costs relate in large part to the conduct of the Appellant prior to the appeal, in essence her complicating matters by trying to bring in all of the Governors personally. In relation to the appeal itself, Advocate Milner only cited the delay of some six months caused by it. Such an inevitable delay would not ordinarily support a claim for indemnity costs. However, I am conscious that I said this at paragraph 63 - 65 of the Judgment:
"63 In my view, the Deputy Chairman was right to distinguish the case of Bungay v Saini on the facts. In Bungay v Saini, the conduct of the two directors was reprehensible in that they had orchestrated and led a campaign to harass the employees on religious grounds, fabricating evidence and conducting unfair disciplinary hearings. They were the discriminators exercising authority conferred by the Centre. In this case, it is the Respondent that is the alleged discriminator, not Advocate Baker or any other individual Governor. As pleaded, there are no allegations against Advocate Baker or any other Governor justifying their inclusion as respondents in their individual capacities.
64 On the contrary, when asked direct questions about this, the Appellant seemed to accept, quite candidly, that she had no evidence to support allegations of discrimination against any individual Governor. In response to questioning, her approach was understood to be that all of the Governors should be added as respondents in their individual capacities and through disclosure orders against them, to discover whether there is any evidence to support an individual Governor being made personally responsible for the alleged discriminatory acts, should they be proved.
65 In my view, this is a quite improper way to proceed and is close to an abuse of process. It involves adding some six respondents to a claim against the Respondent as the former or prospective employer, greatly increasing the costs and complexity of the proceedings in what can fairly be described as a fishing expedition for evidence upon which to base a personal claim against them. Such an approach would be against the overriding objective and it would leave the door open for future claimants to routinely name directors of companies (or equivalent) to claims brought against an employer."
28. Subject to the issue of remedy and the application of Article 77F, the unfair dismissal claim is not defended. In so far as the discrimination claims are concerned, any damages would be met by the Respondent. Adding all of the Governors as respondents and seeking to make them jointly and severally responsible for any such damages does not increase the level of damages that might be ordered in the Applicant's favour. Yet she persisted in her efforts to have them all personally involved, both in argument before the Tribunal, in asking the Interlocutory Judgment to be reconsidered and when applying to the Tribunal for leave to appeal. The sole purpose of her application for leave to appeal to the Royal Court was to achieve her objective of bringing in all of the Governors personally.
29. Added to this is the fact that this was an appeal against an interlocutory judgment of the Tribunal. An appeal court will be slow to interfere in such a judgment unless there was a clear case of something having gone wrong (see Broere and Others v Mourant and Others [2003] JCA 222 at paragraph 2), and there was no indication of something having gone wrong in this case.
30. These factors namely the lack of merit in the appeal, the Applicant's purpose in prosecuting it and it being an appeal against an interlocutory judgment lead me to conclude that she should bear the costs of the Respondent of and incidental to the appeal on the indemnity basis.
31. At the final hearing, Advocate Milner said that the Respondent wished to avoid the time and expense of the taxation process and she invited me to make a summary order for costs. The Court has the power to make a summary order for costs, but inevitably, it must be an amount which is less than what would be recovered in taxation - see JFSC v A.B.Black [2007] JLR 1.
32. The Respondent's total legal costs as charged amount to £15,823.60. It only seeks to recover the time of Advocate Milner, which totals £13,053.60. She has charged her time at the concessionary rate of £210 per hour, because the Respondent is a charity, but even so, that is what the Respondent has been charged. I have been given a breakdown of her time but am not in a position to consider whether all of that time would be recovered in the taxation process on the indemnity basis. A summary order is of its nature a cautious one, and I assess it at £9,000.
33. There is a further factor which I need to take into account and that is the issue of proportionality. As the Court made clear in Pearce v States Treasurer [2016] (1) JLR 435 in every taxation of costs the Greffier should apply the test of proportionality to the overall bill that would be allowable and the costs order imposed must bear some relationship, inter alia, to the value of the dispute. As I am being asked to make a summary order, then I must consider the issue of proportionality and in this respect, I bear in mind the level of awards that can be made by the Tribunal under the Employment (Awards) (Jersey) Order 2009 and under the Discrimination Law. For example, the amount claimed by the Respondent in costs exceeds the limit of £10,000 that the Tribunal can award under Article 42(1) of the Discrimination Law and my proposed summary order is just under that limit. In my view an order in the sum of £9000 would be disproportionate when set against the level of awards that the Tribunal can make. Doing the best that I can I am therefore going to reduce the amount of the summary order I had in mind by one half to £4500.
34. Furthermore, whilst the means of the Applicant are not relevant in deciding whether to make an order for costs, I can take her means into account when deciding how the costs I have ordered should be paid. Having considered her means and her circumstances generally, I am going to order that the summary order of £4,500 is not to be paid by the Applicant until the final determination of all of her claims before the Tribunal, regardless of the outcome of those claims.
35. There is a further feature of the case that in my view supports the reduction I am proposing. The fact that the Tribunal has no power to make orders for costs (or for expenses) is explained in its guidance note "Guidelines for making a claim and completing the claim form". The Tribunal is, using the wording in the Unison case, an inexpensive forum in which no costs at all can be ordered against a claimant. Claims are therefore brought by claimants free from the fear and the very considerable risk of adverse costs orders.
36. The Tribunal's guidelines explain clearly how claimants have a right of appeal, and how to exercise that right, but there is nothing that I could see to warn claimants that in exercising that right, they are moving into a quite different environment in which costs can be ordered against them. In addition to there being no warning there is no published case in which the Royal Court has awarded costs on such an appeal. As just noted, legal costs incurred in prosecuting or defending an appeal are likely to be disproportionately large in the context of the level of damages that are at play within the Tribunal.
37. As is often said, ignorance of the law is no excuse, and the Applicant, as a Professor of Law, might have been expected to have appreciated the risk she was taking financially in pursuing the appeal. I am not persuaded that she was aware of that risk and this is a further factor which in my judgment supports the reduction in the order I am proposing to £4,500.
38. With the Tribunal being an inexpensive and costs free environment, it seems somewhat incongruous that appeals from decisions of the Tribunal to the Royal Court on points of law should expose claimants and respondents to the potentially disproportionately high level of costs that can be awarded, applying the usual rule as to costs in civil proceedings. Consideration might be given, therefore, to whether the Royal Court Rules should be amended to restrict the power of the Royal Court to award costs on appeals from the Tribunal to where appellants or respondents have acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or responding to an appeal.
39. In conclusion, I order the Applicant to pay the Respondent the sum of £4,500 by way of a summary costs order, such sum to be paid by the Applicant at the final determination of all of her claims before the Tribunal, regardless of the outcome of those claims.
Authorities
de Than v Institute of Law and Others [2021] JRC 098.
Watkins v Egglishaw [2002] JLR 1.
Leeds United v Weston [2012] JCA 088.
Civil Proceedings (Jersey) Law 1956
Capacity and Self-Determination (Jersey) Law 2016
JT Limited v Wood [2016] JCA 221.
SEB v Fire & Rescue Services Association [2020] JCA 020A.
Employment Regulation (Jersey) Law 2007.
Employment (Jersey) Law 2003.
Regina (UNISON) V Lord Chancellor (Equality and Human Rights Commission and another intervening) (Nos 1 and 2) [2017] UKSC 51.
Discrimination (Jersey) Law 2013.
Bungay and Another v Saini & Others UKEAT/0331/10/CEA.
Flynn v Reed [2012] (2) JLR 226.
Broere and Others v Mourant and Others [2003] JCA 222.
JFSC v A.B.Black [2007] JLR 1.
Pearce v States Treasurer [2016] (1) JLR 435.
Employment (Awards) (Jersey) Order 2009