Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2007/22_05.html
Cite as: [2007] NIFET 22_05, [2007] NIFET 22_5

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 22/05 FET

219/05

CLAIMANT: Ashraf Zatari

RESPONDENT: University of Ulster

DECISION ON A REVIEW

The decision of the Tribunal is that the application to review an Order of Costs made against the claimant is refused and the decision on costs is confirmed.

Constitution of Tribunal:

Chairman (sitting alone): Mrs P Smyth

Appearances:

The claimant appeared in person.

The respondent was represented by Mr Oliver McCullough, of University of Ulster.

On 19 January 2005 the claimant lodged proceedings in the Fair Employment Tribunal alleging both religious and political discrimination and also race discrimination.

A Case Management Discussion was arranged on 5 September 2006 in order to identify the legal and main factual issues to be determined, make appropriate case management orders and list the case for hearing. The claimant did not appear at that hearing, nor did his representative. The clerk of the Tribunal telephoned the claimant's representative to enquire if he intended to appear. Mr McRitchie, the solicitor on record for the claimant, informed the clerk that he had not been made aware of the hearing. However, a letter had been sent to him on 26 June 2006 and Mr McCullough pointed out that he also had written to Mr McRitchie on 27 June 2006, referring to the date of the Case Management Discussion.

Mr McCullough, who appeared at that hearing, pointed out that he was not aware of the precise factual issues to be determined at the hearing. As far as the race discrimination claim was concerned, he had provided discovery of the race and ethnic origins of the persons who were short-listed, and he was unaware what claim the claimant intended to make in those circumstances. With Mr McCullough's consent, the Case Management Discussion was adjourned and was re-listed before me on 9 October 2006.

The claimant's solicitor appeared at the hearing on 9 October 2006. Mr McRitchie explained that he had not been provided with information which his client had received directly from Mr McCullough concerning the breakdown in terms of race of those candidates short-listed for the post in question. He also indicated that he had not been in contact with his client and was not in a position to progress the Case Management Discussion. Mr McRitchie indicated that he expected to be in contact with his client within the next week. In those circumstances, and with the agreement of Mr McCullough, I listed the Case Management Discussion for one final time on Wednesday 1 November 2006. It was made clear to Mr McRitchie that if the claimant had not provided instructions by that date then a Notice would be sent to the claimant informing him that his claim may be struck out because it had not been actively pursued. Mr McCullough asked that the issue of costs be reserved in these circumstances.

On 1 November 2006, the claimant did not attend, nor did his representative. His representative telephoned the Office of the Tribunals to indicate that he was coming off record. In those circumstances I ordered that a Notice be sent to the claimant that his claim may be struck out because it had not been actively pursued. Mr McCullough applied for costs in the sum of £200.00 to represent the time involved in attending three Case Management Discussions. I was satisfied that the claimant had acted unreasonably in the conduct of these proceedings and I made an Order for Costs in the sum of £200.00.

The claimant subsequently withdrew his claim and made an application to the Tribunal for a review of the decision to make an Order for Costs in the sum of £200.00. The purpose to today's hearing was to consider that application for a review. The claimant indicated to the Tribunal that he had not been at fault in the conduct of these proceedings and that he had believed his case to be in the hands of a competent legal representative. He said that he had not been informed of the hearings before the Tribunal and that the conduct of the proceedings was the fault of the legal representative and not his fault.

Rule 14 of Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) 2004 which govern this application provides that:-

"14(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) …".

It is clear from the wording of Rule 14 that an Order for Costs may be made against the claimant in the circumstances set out in Rule 14. Therefore regardless of whether the fault in pursuing this claim lay with the claimant or with his legal adviser it is the party, in this case the claimant, who is liable for any unreasonable conduct in the manner in which these proceedings have been conducted. The respondent attended three hearings in this case in order to progress this matter. The reason the case could not be progressed on each occasion was because of either the claimant's conduct or his representative. I am not satisfied therefore that the Order for Costs should be revoked upon review albeit that the conduct of these proceedings may not entirely have been the claimant's fault.

I therefore order that the Order for Costs is confirmed.

Chairman:

Date and place of hearing: 5 March 2007, Belfast