Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS:            112/14FET

13/15FET

363/15

 

 

 

CLAIMANT:                          Patrick Monaghan

 

 

RESPONDENT:                  NI Transport Holding Company Ltd, t/a Translink (NI)

 

 

 

DECISION ON COSTS

I hereby order that the claimant do pay to the respondent company the sum of £900.00 in respect of costs incurred by the latter in defending these proceedings.

 

The claimant, in conducting these proceedings, has acted unreasonably.

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge Buchanan             

 

Appearances:

 

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.

 

The respondent company was represented by Mr P Ferrity, Barrister-at-Law, instructed by Elliott Duffy Garrett Solicitors.

 

1.         (i)         This was an application for costs against the claimant by the respondent company.

 

            (ii)        The claimant, Mr Monaghan, was employed by the respondent company as a train cleaning supervisor at its depot at York Street, Belfast.

 

                        By claims presented to the Fair Employment Tribunal on 19 November 2014 and 24 February 2015 he alleged that he had suffered discrimination and harassment on the ground of his religious belief while employed by the respondent company.  He alleged that these matters had been ongoing from on or around 27 August 2014.  He ultimately resigned from his employment on 28 November 2014, alleging constructive dismissal.  He presented a claim in respect of this to the industrial tribunals, also on 24 February 2015.  The two Fair Employment claims were consolidated, and the industrial tribunal claim was made the subject of an Order under Article 85 of the 1998 Order, so that all matters would be tried together.    

 

2.         (i)         At a Case Management Discussion on 28 May 2015 various directions were given to progress these matters to hearing.  The ones that concern us here are that the case was listed for 10 days from 26-30 October 2015, and then from 2-6 November 2015, and that evidence-in-chief was to be adduced by way of witness statements, with the claimant providing his witness statement and those of his witnesses  by 7 August 2015.  It was subsequently agreed between the legal representatives that this time limit would be extended until 14 August 2015. 

 

            (ii)        On 14 August 2015, the Equality Commission, representing the claimant, sent his own witness statement, and those of five witnesses to the respondent company’s solicitor.  One of the witness statements was from a Mr Martin Walker.  None of the statements were signed but the Equality Commission said signed copies would be forwarded within the next few days.

 

                        On 15 September 2015 the Equality Commission sent signed statements from the claimant and two of his witnesses.  The respondent company’s solicitor enquired on 16 September 2015 when they might expect to receive the three remaining witness statements (including one from Mr Walker.)

 

                        On 18 September 2015 they were informed that the (unsigned) witness statement of Mr Walker was being withdrawn following a meeting between him and the Equality Commission legal team that day, and that Mr Walker would not be a witness for the claimant.  Between 18 September and 2 October 2015 there was further correspondence between the representatives about when the outstanding witness statements would be submitted.  Ultimately, on the latter date, the Equality Commission informed the respondent company’s solicitor that the claimant would no longer wished to proceed with his claims and that they were being withdrawn.

 

            (iii)       The claims were formally dismissed by another Judge in a decision dated 7 October 2015, and issued to the parties on 12 October 2015.

 

                        The withdrawal and dismissal therefore took place between two and three weeks before the hearing was due to commence.

 

3.         (i)         The respondent company’s application for costs was set out in a letter from their solicitor dated 6 November 2015.  That letter set out the basis of the application which was that the claimant “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 ....... has been misconceived”.  Reference was made to Rules 38 and 40 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005.  The more appropriate reference is to Rule 35(3) of the corresponding Fair Employment Tribunal Rules but nothing turns on that.

 

            (ii)        The letter of 6 November 2015 set out in some detail the grounds for this application, but when the mater came before me it had effectively crystallised into an application on the basis that the unsigned statements submitted to the respondent company’s solicitors from Martin Walker had never been made, generated or initiated by him, and that it was something about which he had no knowledge.

 

            (iii)       There was therefore a factual dispute between Mr Walker and Mr Monaghan which I had to resolve.  The latter’s account amount was that in the course of a telephone conversation with Mr Walker, he asked him to make a statement.  Mr Walker agreed, and dictated over the phone the content of the statement which Mr Monaghan then jotted down in bullet point form in a notebook.  He told Mr Walker he would draw up a statement for him, and Mrs Monaghan then typed this up on a lap-top.  It was submitted to the Equality Commission unsigned.  It was always the intention that it would be signed, as it was the claimant’s case that Mr Walker was a willing witness.

 

            (iv)       I heard evidence from Mr Walker and Mr Monaghan to resolve this dispute, and had regard to such documentary evidence as there was relating to their exchanges and conversations, mostly in the form of  text messages.

 

                        I have no hesitation in accepting the evidence of Mr Walker.  I found him a convincing and truthful witness, whereas I found Mr Monaghan’s evidence disingenuous at best.

 

                        I am therefore satisfied that Mr Monaghan, in effect, manufactured the draft statement, as he saw it as a way of bolstering his claims against the respondent company, and in particular, he hoped that it might lead them to settle his claims.  Apart from the fact that it is hard to see why Mr Walker would have made up the allegations he did, I find support for this finding in the wording of the text messages, the fact that Mr Monaghan can give no explanation for the whereabouts of the jotter in which he noted down the bullet points of Mr Walker’s alleged statements over the phone, and the fact that Mr Walker was so angry when he discovered what had happened that he went along in person to the Equality Commission’s Offices to meet its legal team.  If he had merely been a reluctant witness, I do not think he would have taken this step.

 

It is also convenient at this point to state that I do not believe the claimant when he says that he withdrew the claims because his health had been destroyed and he would not cope.  I am satisfied that he withdrew this claims because of the issues which had arisen with Mr Walker’s alleged statement.

 

4.      (i)        In determining this application, I bear in mind that I am exercising a discretionary jurisdiction.  I also bear in mind that costs in tribunal cases are the exception rather that the rule, albeit that stating this has become something of a mantra.

 

                     In Peifer v Castlederg High School and the Western Education and Library Board [2008] NICA 4G, Girvan L J, at paragraph 3 of the decision, stated:-

 

                                    “Tribunals should be encouraged to use their increased costs powers ... to penalise time wasting or the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents.”

 

                        (ii)       More generally, I have approached this matter by determining whether there has been unreasonable conduct on the part of the claimant and, if so, proceeding to exercise my discretion as to whether to make an Order for costs against him and in what amount.

 

5.      (i)        As I stated at the outset, this hearing focussed on the circumstances surrounding Mr Walker’s statement.  For the avoidance of doubt, I state that having considered the contents of the costs letter of 6 November 2015 and the background in the form of the pleadings, etc (no evidence was ever adduced as this case did not proceed to a substantive hearing) I would not have been minded in any event to make a a costs order on any of the other grounds advanced on behalf of the respondent company.

 

          (ii)       Ms Bradley, BL, for the claimant, argued that even if I were to make an adverse finding in relation to the claimant’s conduct, this should not necessarily lead to an award of costs.  She relied on the judgment of Singh J, sitting in the Employment Appeal Tribunal in the case of Kapoor v Governing Body of Barnhill (UKEAT/0352/13).  In that case an employment tribunal at first instance had dismissed the claimant’s claim of race discrimination.  It made an award of £8,900.00 costs against him.  It did so because it found that the claimant had put forward false evidence and went on to say that “[w]ithout more, to conduct a case by not telling the truth is to conduct a case unreasonably, it is as simple as that ...”.  Singh J, in the EAT, held that the tribunal, on that basis, had misdirected itself in the exercise of its discretion on costs.  It should, rather, have considered all the circumstances of the case, and the extent to which the claimant’s lies had had a material impact on the actual proceedings.  (That case, unlike the one before me, had progressed to hearing and lasted 5 days).  This decision of the EAT, while it may seem indulgent, does not stand on its own.  Equally, there are other EAT decisions where it has been held that if a party has lied to a tribunal, that is necessarily unreasonable conduct, and should result in an award of costs.  (See generally: Tolley’s Employment Handbook 2015, 29^th Edition, pp 596, 597).

 

          (iii)      What must be remembered about decisions on costs is that these decisions relate to the exercise of a discretion, are often confined to that their own particular facts, and have limited value as precedents.

 

                     In Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 155 para 41, Mummery L J stated:-

 

                                    “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting it, and in doing so, to identify the conduct, what was unreasonable about it and what effects it had.”

 

6.      (i)        In this case I am satisfied, having regard to all the facts and circumstances which I have outlined, that the claimant Mr Monaghan acted unreasonably in the conduct of these proceedings.  In particular, in the period between 14 August 2015 and 2 October 2015 when his proceedings were withdrawn, the respondent company incurred expense in drafting and preparing its own witness statements.  As far as it was concerned the case was going on, and signed statements from the claimant’s outstanding witnesses were awaited to finalise the respondent’s statements.

 

          (ii)       I am satisfied that an award of costs is appropriate.  The respondent company has provided a bill of costs in the sum of £18,120.00, exclusive of VAT and counsel’s fees.  I am bound by the maximum award of £10,000.00 prescribed by the Rules.

 

          (iii)      In making an award of costs, I have to have regard to the claimant’s means.  I have seen a statement of his means, which was largely unchallenged.  While I accept that in comparative terms they are modest, it does seem to me that he has a surplus of around £150.00 per month, and one large item, a £350.00 per month loan repayment for the cost of a wedding, which is time limited.

 

          (iv)      In these circumstances, I make an award of costs against the claimant in the sum of £900.00, inclusive of VAT thereon.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:  20 January 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: