Industrial Tribunals Northern Ireland Decisions

 


Cassidy v Woodbury Investments Ltd (Application for Review) [2004] NIIT 9173_03 (26 October 2004)

THE INDUSTRIAL TRIBUNALS

CASE REF: 9173/03

APPLICANT: Donna Jean Cassidy

RESPONDENT: Woodbury Investments Limited

DECISION ON APPLICATION FOR REVIEW

The unanimous decision of the tribunal is that the application for review is granted and the tribunal reviews its decision by affirming its decision in its entirety, save in respect of the foregoing:-

(i) In paragraph 15(a) of its decision the tribunal Orders that the sum of £200.00 plus VAT in respect of costs of Noel Wilson and Co., Solicitors, shall not be awarded in favour of the applicant against the respondent, and that award is struck out.

(ii) In paragraph 15(c) of its decision the tribunal determines that no costs and expenses are properly to be the subject of an Order in favour of the attendance of the applicant's father at the tribunal, and any such award is struck out.

(iii) In paragraph 15(d) of its decision the tribunal's total award of costs is amended to a total figure in respect of costs of £146.88.

(iv) In paragraph 16 of its decision the tribunal's total award is amended to a total figure of £598.80.

In all other respects the tribunal's original decision is affirmed.

Appearances:

The applicant appeared and represented herself.

The respondent did not appear and was not represented.

1. This is an application for review by the respondent, Woodbury Investments Limited, of a decision of this tribunal ("the decision") issued on 1 September 2004. By letter of 6 September 2004 ("the review request") the respondent wrote to the Secretary of the Industrial Tribunals and Fair Employment Tribunal, confirming that the decision had been received by the respondent on 4 September 2004, and requesting a review. The tribunal has noted the content of the review request which, to the tribunal, appears to raise a number of issues which can be expressed, insofar as the tribunal feels these to fall within the ambit of its statutory powers of review as constituting the following issues:-

(i) That the tribunal made an error in the decision in the calculation of monies owed by the respondent to the applicant for holiday pay.

(ii) That the tribunal ignored in reaching its decision the matter of monies alleged to be owing by the applicant to the respondent.

(iii) That the awarding of costs in the decision regarding invoices which may or may not have been issued to the applicant was in error.

(iv) That the tribunal failed to issue an Order for the applicant to provide a written answer to questions.

(v) That the tribunal was not justified in making findings of fact in the decision in regarding as unsubstantiated allegations of misconduct made by the respondent against the applicant, and in finding as a fact that correspondence had not been copied to the PSNI by the respondent which purported to be so copied.

(vi) That the tribunal had ignored the fact that it was standard legal practice to allow a tribunal application to be concluded before a formal request was made to PSNI by an aggrieved party for another party to be prosecuted for theft.

(vii) That the tribunal had disregarded in reaching the decision endeavours on the part of the respondent to communicate with the applicant which had been met with no response or no proper response on the applicant's part.

2. In the review request the respondent had, it appeared to the tribunal, expressly identified two statutory grounds upon which the review, it was contended, ought properly to be grounded. These were the following:-

(a) "The original decision was wrongly made as a result of errors on the part of the tribunal staff". That appears to be a reference to Rule 13(1)(a) of the Industrial Tribunals Rules of Procedure (2004) contained in Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004 (hereinafter referred to as "the Rules").

(b) "The interests of justice clearly require such a review". That appears to be a reference to Rule 13(1)(e) of the Rules.

3. In addition to the content of the review request, the tribunal had regard to the content of a course of correspondence between the respondent and the Office of the Tribunals and in particular to a facsimile transmission from the respondent dated 25 October 2004. That facsimile transmission contained a request that this document should be put before the tribunal at the review hearing on 26 October 2004, and that duly done; the tribunal noted this and all of the relevant correspondence which preceded its determination of this review.
4. The applicant was present at the review hearing. This was a review at the respondent's motion but nonetheless the tribunal was of the view that it was fair and proper to permit the applicant to address the tribunal and to assist in the clarification of the material issues falling to be dealt with upon review.
5. Dealing in turn with the express grounds of review mentioned by the respondent in the review application, Rule 13(1)(a) of the Rules provides to the tribunal power on application of a party (in this instance the respondent) to review any decision on the grounds that the decision was wrongly made as a result of an error on the part of the staff of the Office of the Tribunals. Considering the material and the evidence that was before it, the tribunal had considerable difficulty in discerning that any error whatsoever on the part of the staff of the Office had caused its decision to be wrongly made in this case. In the absence of any further clarification as to the grounds of that application by or on behalf of the respondent at hearing, the tribunal was unable to see any material upon which it could determine that as being a proper ground upon which it could review the decision. Accordingly, the tribunal finds that it cannot review the decision on that ground.
6. Rule 13(1)(e) of the Rules provides that a tribunal may review its decision on the grounds that the interests of justice require such a review. The tribunal felt that it was proper and just that it ought to proceed to conduct a review of its decision based on that sole ground. In regard to the specific contentions of the respondent as set out in the review request and listed in paragraph 1 above, the tribunal determines that a number of these merit consideration.
7. Firstly, regarding the computation of monies owed by the respondent to the applicant for holiday pay, the tribunal reviewed its findings of fact and its calculations, and the statutory basis upon which these had been made. Having done so, the tribunal considers that its determination in the decision is proper and correct.
8. Secondly, regarding the suggestion that, in reaching its decision the tribunal had unfairly or improperly disregarded monies allegedly owed by the applicant to the respondent, the tribunal's decision was based upon the evidence which was before it at the original hearing, both documentary and oral. There was no persuasive evidence to support any such contention; the tribunal has received no further evidence in consequence of this review. The tribunal is of the opinion that the tribunal's decision was properly made in the light of this.
9. Thirdly, in respect of the matter of an award of costs in favour of the applicant in the decision, such costs were composed of a number of component parts. In respect of legal professional fees, the tribunal had regard to the evidence that was before it at the original hearing and to the clarification provided by the applicant at the review hearing. On the strength of the evidence that was before it at the original hearing, the tribunal had felt, on balance, that it was fair and proper to make an award of costs in regard to the legal costs incurred by the applicant on foot of her retention of the firm of Noel Wilson & Co., Solicitors. However, at the review hearing the applicant made it clear that, notwithstanding the fact that Noel Wilson & Co. had been retained by her and had carried out work on her behalf, it was more probable than not that the firm in question would not be proceeding with the raising of a bill of costs. There was no absolute certainty of that fact; however, on account of the passage of time since the work had been carried out, it seemed improbable that any invoice was indeed to be raised. The tribunal therefore felt that it was proper that the sum allocated for costs in that regard could be discounted and that its decision ought to be amended accordingly on the basis that such costs had not been "incurred", as in Rule 14(1)(a) of the Rules such costs are required to be.
10. Regarding the costs incurred by the applicant concerning her retention of Carson & McDowell, Solicitors, the tribunal at the original hearing had sight of some documentary evidence indicating that that firm was retained on the basis of costs being incurred amounting to £125.00 plus VAT. At the review hearing the applicant clarified that there had apparently been a misunderstanding regarding the terms of retention. As a result, the costs were to be much more substantial than originally indicated. The tribunal had sight of two costs invoices from Carson & McDowell, both post-dating the original hearing. The tribunal noted that the hourly rate specified was £125.00 plus VAT; that is apparently where the misunderstanding occurred. There was an admittedly ambiguous reference in the original documentation received from Carson & McDowell by the applicant as seen by the tribunal at the original hearing. The applicant explained that the invoice for work done by that firm and presented to the applicant originally came to £875.00 plus VAT, a total of £1,028.12 for seven hours recorded work. When the applicant, who was quite taken aback by that figure in view of her misunderstanding of the retention terms, queried that with the firm in question, the invoice was abated to a professional fee of £500.00 plus VAT, being £587.50 in all. It therefore appears that the costs actually incurred by the applicant were much more substantial than had been understood at the time of the original hearing.
11. The tribunal considered the position in the light of this. Firstly, the tribunal has no cause to alter its view but that costs ought properly to be awarded in favour of the applicant as against the respondent on foot of the grounds and for the reasons indicated in the decision. The only issue for the tribunal, as far as it was concerned, was the fair and proper quantification of such costs as ought to be awarded against the respondent and in favour of the applicant.
12. The respondent has requested this review and thus the respondent is the moving party. The respondent has not appeared at hearing, and indeed is not required so to do. It is quite entitled to raise issues and to rely upon its written submission in the review request. It has not withdrawn the review request so that must proceed. The applicant is, likewise, entitled to appear and to make submissions. The fact of the review being based on the sole remaining ground - that the interests of justice require such a review - affords to the tribunal an opportunity to revisit the decision upon that ground.
13. The tribunal must have regard to the fact that this is not a review of the tribunal's own motion but rather at the instigation of a party to the original proceedings, the respondent. Specific grounds of review have been put forward and the tribunal must have regard to those grounds specifically. There must be, the tribunal feels, some restriction upon the manner in which the power of review can properly be exercised by the tribunal, hence the reason for the Rules being particularly framed in the terms in which they are. For instance, there is a specific ground (not raised in this review request), being that contained in Rule 13(1)(d). This ground provides the capacity for a tribunal to review a decision if new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing. As mentioned, that ground was not put forward by the respondent. Notably, the applicant has not requested a review.
14. Taking the foregoing into consideration, the tribunal is tasked with having to determine how it ought properly to deal with costs awardable against the respondent and in favour of the applicant, in view of the information now available that the costs actually incurred by the applicant by her retention of Messrs. Carson McDowell are much more substantial than had been understood at the original hearing. The tribunal has no doubt that, if Carson and McDowell's bill for £587.50 had been available at the original hearing, it would have awarded the full amount of those costs. The issue of costs properly awardable has been expressly opened up by the respondent in its written application for review, and the tribunal has thus been invited by the respondent to revisit the fairness of the award of costs, in the interests of justice, and to determine properly the issue of costs, if any, which ought to be awarded.
15. The tribunal's difficulty is not with that, per se, but with the fact that the "new evidence" ground (Rule 13(1)(d)) has not been invoked as a ground of review by either party, and specifically not by the applicant. The information gained from the applicant concerning Carson & McDowell's costs really amounts to new evidence, and evidence of which the tribunal understands the respondent is entirely unaware; the respondent was not in attendance or represented at the review hearing. If, for instance, the applicant had applied for a review based upon Rule 13(1)(d) and the new information concerning costs incurred, the tribunal would have been faced with little difficulty in proceeding with a determination; however she did not.
16. One might suggest the argument that once the "interests of justice" ground has been raised by either party the fact that what amounts to new evidence comes along in the course of the review hearing and that this does not favour the moving party but, rather, favours the other party, ought to give the tribunal a free reign to determine the matter notwithstanding that fact. However, the tribunal's view is that the interests of justice require the tribunal to exercise a balance between the interests of the parties in doing justice to both. The tribunal's discretion is not unfettered; the tribunal is required to follow the Rules. The Rules prescribe designated grounds of review and empower either party (or indeed the tribunal itself) to move the review application. The tribunal does not believe that it is permitted to disregard distinct categories of grounds of review or to disregard the identity of the moving party merely to facilitate a generalised concept of fairness or equity. For that reason, the tribunal determines that it shall confirm the costs awarded in its decision in respect of Messrs Carson & McDowell, in the sum of £125.00 plus VAT.
17. The penultimate issue relates to the fact that the tribunal had, in its decision, also awarded an element of costs concerning the applicant's father and an air-fare for travel from England to attend the tribunal and in preparation time for the case. Upon review, the tribunal determines that it had not been correct in so doing. In regard to this, the tribunal takes note of the case of Kingston Upon Hull City Council v Dunnachie (No. 3) [2003] IRLR 843, where the EAT in England made it clear that a tribunal had erred in making an award of costs in favour of a litigant in person which included a sum for time spent in case preparation, and the EAT specifically alluded to the fact that there is currently no jurisdiction for such awards before employment tribunals in England (a similar position currently applies in Northern Ireland). The tribunal further notes that the Litigants in Person (Costs and Expenses) Act 1975 does extend to Northern Ireland, but does not give jurisdiction in such matters to industrial tribunals. The tribunal notes that statutory powers are shortly to be introduced, but which have not yet been implemented, to enable tribunals in Northern Ireland to make such awards of costs and expenses. However, in the absence of these powers, the tribunal is obliged to rescind that part of its decision in respect of that element of the award, and the award is discounted on that basis.
18. The final issue which the tribunal wishes to deal with in this review is the contention that it ought properly to have made an Order for the applicant to provide a Written Answer to Questions. Such an Order upon application is in the nature of an interlocutory matter, and the failure on the tribunal's part to make such an Order is not a 'decision' in respect of which the tribunal has the capacity to review under Rule 13 (See In the Matter of an Application by Maurice Darley for a Judicial Review, NI Court of Appeal 1997).
19. In view of the foregoing determinations, the tribunal reviews its decision by affirming its decision in its entirety, save in respect of the foregoing:-

(i) In paragraph 15(a) of its decision the tribunal Orders that the sum of £200.00 plus VAT in respect of costs of Noel Wilson and Co., Solicitors, shall not be awarded in favour of the applicant against the respondent, and that award is struck out.

(ii) In paragraph 15(c) of its decision the tribunal determines that no costs and expenses are properly to be the subject of an Order in respect of the attendance of the applicant's father at the tribunal, and any such award is struck out.

(iii) In paragraph 15(d) of its decision the tribunal's total award of costs is amended to a total figure in respect of costs of £146.88.

(iv) In paragraph 16 of its decision the tribunal's total award is amended to a total figure of £598.80.

In all other respects the tribunal's decision is affirmed.

Chairman:

Date and place of hearing: 26 October 2004, Belfast

Date decision issued to parties: