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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Hagan v British Broadcasting Corporati... [2010] NIFET 00007_10FET (06 September 2010)
URL: http://www.bailii.org/nie/cases/NIFET/2010/00007_10FET.html
Cite as: [2010] NIFET 7_10FET, [2010] NIFET 00007_10FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REF: 7/10 FET
CLAIMANT: Philip James Hagan
RESPONDENTS: 1. British Broadcasting Corporation
2. Gavin Poland
3. Capita Business Services Limited
DECISION ON COSTS
The decision of the Tribunal is that the first-named respondent’s application for costs is refused.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
Appearances:
The claimant did not appear and was not represented.
The first-named respondent did not appear, but written submissions were provided.
The second and third-named respondents did not appear and were not represented.
1. The claimant presented a claim against the respondents on 18 December 2009. He claimed he had been subjected to discrimination of the grounds of his religious belief by the respondents in the recruitment process for a Technical Media Assistant.
2. The claimant alleged in his claim form that he could not get satisfactory answers to his questions regarding the recruitment process and that the first-named respondent did not respond to the statutory questionnaire. He concluded that in the absence of an explanation his failure to secure the post was based on religious discrimination.
3. The respondents presented responses denying the claims. The first-named respondent set out, in some detail, the recruitment process in its response presented on 8 February 2010. The responses were sent to the claimant in February 2010.
4. On 1 March 2010 the parties were notified by the Office of the Tribunals that a Case Management Discussion would be held on 10 May 2010. That letter set out a list of matters to be dealt with at the hearing and a direction that discovery and requests for additional information should be dealt with in advance of the Case Management Discussion.
5. It would appear the claimant then sought assistance from the Equality Commission and was in contact with the Labour Relations Agency during April 2010. There was also correspondence between the parties during April 2010 culminating in an e-mail from the claimant to the first-named respondent on 5 May 2010 stating:-
“I have decided to drop this case.”
The e-mail also stated that the claimant had sent a letter to the respondents and the Tribunal confirming that he was dropping his case.
6. On 6 May 2010 the claimant sent an e-mail to the Tribunal stating that he was no longer continuing with the case. However, there was uncertainty as to whether the claimant was withdrawing against all the respondents or only the first-named respondent. On 7 May 2010 the first-named respondent’s representatives asked that the Case Management Discussion listed for 10 May 2010 be postponed until the uncertainty was resolved. On 7 May 2010 the e-mails from the claimant were accepted by the Tribunal as withdrawals against all three respondents and the Case Management Discussion on 10 May 2010 was cancelled.
7. On 20 May 2010 the first-named respondent requested that the Tribunal order the claimant to pay costs to reflect the costs incurred by the first-named respondent as a result of the late notice of postponement of the hearing. These costs were quantified as flight tickets for counsel and instructing solicitor in the sum of £200.74 and counsel’s fees of £1,175.00. It would appear that the brief fee related to counsel’s preparation for the Case Management Discussion. The first-named respondent also advised that the brief fees sought by counsel had been negotiated down by the instructing solicitor.
8. A costs hearing was listed for 2 July 2010. The first-named respondent made written submissions and did not attend. The second and third-named respondents did not seek costs and understandably did not attend. The claimant did not attend nor make representations.
Conclusions
9. In its submissions the first-named respondent makes it clear that it is partly funded by licence fee payers and is required to account for and justify its expenditure. The first-named respondent contended that the claimant acted unreasonably in the conduct of proceedings, in particular, in withdrawing his claim on the last working day before the hearing.
10. The respondent seeks costs under Rule 40(2) and (3) of the Industrial Tribunals Rules of Procedure 2005 these are:-
“40(2) A tribunal or chairman shall consider making a Costs Order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in Paragraph (3) apply. Having so considered, the tribunal or chairman 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) 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.”
11. In considering an application for costs, I must first be satisfied as to the grounds for making such an Order and then whether it is appropriate to exercise my discretion to award costs. When making a Costs Order on the grounds of unreasonable conduct, any costs awarded need not be causally linked to the costs incurred as a result of the conduct that has been identified as unreasonable. The question of whether or not a party behaved unreasonably is dependent on the facts of an individual case. There is no hard and fast principle applicable to every situation. Reasonableness is to be given its ordinary meaning. In Cartiers Superfoods Ltd v Laws [1978] IRLR 315, the EAT considered whether the party had acted frivolously under the Rules then in force. Phillips J said that to determine whether a party acted frivolously it was necessary to:-
“Look and see what that party knew or ought to have known if he had gone about the matter sensibly.”
I am also mindful of the caution that should be exercised in examining a case with the benefit of hindsight.
12. In Paribas, Lord Justice Mummery said:-
“In my view, it would be legally erroneous if, acting on a misconceived analogy with the CPR, tribunals took the line that it was unreasonable conduct for employment tribunal claimants to withdraw claims and that they should accordingly be made liable to pay all the costs of the proceedings. It would be unfortunate if claimants were deterred from dropping claims by the prospect for an Order for Costs on withdrawal, which may well not be made against them if they fought on to a full hearing and failed. As Ms McCaffrey appearing for Mr McPherson, pointed out, withdrawal could lead to a saving of costs. Also, as Thorpe LJ observed during argument, notice of withdrawal might in some cases be the dawn of sanity and the tribunals should not adopt a practice on costs, which would deter applicants from making sensible litigation decisions.
On the other side, I agree with Mr Tatton-Brown, appearing for BNP Paribas, that tribunals should not follow a practice on costs which might encourage speculative claims, by allowing applicants to start cases and to pursue them down to the last day or two before the hearing in the hope of receiving an offer to settle, and then, failing an offer, dropping the case without any risk of a costs sanction.
The solution lies in the proper construction and sensible application of Rule 14. The crucial question is whether, in all the circumstances of the case, the claimant withdrawing the claim has conducted the proceedings unreasonably.”
13. The crucial question is:-
“Whether the claimant has acted unreasonably in the conduct of proceedings, not whether the withdrawal of the claim is itself unreasonable.”
Paribas makes clear that the mere act of withdrawal is not in itself to be equated with unreasonableness.
14. It also appears to me that references to hearings in this matter are made somewhat loosely. The hearing on 10 May 2010 was not a hearing to make a final determination of the issues between the parties. It was, as described and as clearly set out in the Tribunal’s letter to the parties of 1 March 2010, a Case Management Discussion. This, in essence, is to ensure that the case is properly prepared for a final hearing and to provide a final hearing date. It is also to concentrate the minds of the parties on the issues to be determined.
15. It is not clear to me if counsel’s brief fee was for such a Case Management Discussion or a brief fee for instructions in the matter generally. Nor is it clear to me why counsel was required together with instructing solicitor for such a Case Management Discussion rather than the solicitor herself. However, these are not matters in which I need express any opinion.
16. I have concluded, on the evidence and information before me, that the claimant did not conduct proceedings unreasonably. He presented a claim to the Tribunal in December 2009 and received responses in February 2010. He engaged with the respondents in interlocutory matters and sought assistance, relating to his claim, within a reasonable timeframe. He did not require the respondents to attend the Case Management Discussion but withdrew his claims in advance, less than three months after receiving the respondents’ responses and within weeks of the further information provided by the respondents in the exchange of information. I consider that the claimant’s withdrawal falls into the category of a ‘sensible litigation decision’ as described in Paribas.
17. I refused the first-named respondent’s application for costs.
Chairman:
Date and place of hearing: 2 July 2010, Belfast
Date decision recorded in register and issued to parties: