Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1242/06

CLAIMANT: Georgina Joanne Robinson

RESPONDENT: Larne and District Citizens Advice Bureau

DECISION ON COSTS

The unanimous decision of the tribunal is that the respondent's application should be refused.

Constitution of Tribunal:

Chairman: Mr Davey

Members: Mr T Carney

Mr B Heaney

Appearances:

The claimant appeared in person assisted by Mr B Kennedy, BL, of the Bar Counsel Pro Bono Advice Unit.

The respondent was represented by its Chairman, Mr M Lynch.

REASONS

1. The Decision in this matter was issued on 7 January 2008. An application for review of the tribunal's decision was sent by the claimant to the tribunal's office on 17 January 2008. However, by letter dated 25 January 2008 from solicitors acting for the claimant this review application was withdrawn. The respondent's solicitors were notified of the application for review by letter from the tribunal dated 22 January 2008 and also of the withdrawal of the application by letter dated 28 January 2008. By letter of 3 April 2008 the respondent, through its Chairman, Mr M Lynch, wrote seeking directions regarding the legal expenses incurred by the respondents in the case. The respondents were advised that the parties in the two hearings should meet their own legal expenses and would not have to pay any of the other party's costs merely because one party loses the case. The respondents were advised that the tribunal may order a party to pay all the costs in certain circumstances. The respondents were also advised that the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, Schedule 1(38)(7) provides that an application for costs which is received by the Office of the Tribunals later than 28 days from the issuing of the decision to terminate the client shall not be accepted or considered by a tribunal or chairman unless it or he considers that it is in the interest of justice to do so. By a letter dated 29 May 2008 Mr Lynch, for the respondent, requested that the tribunal should instruct the claimant to pay towards the costs the respondents had incurred. The tribunal agreed to reconvene on 14 August 2008, indicating to both parties that the tribunal would deal with all aspects of the application namely whether or not leave should be granted to enable the respondent to apply for costs and to consider, if appropriate, whether or not an order for costs should be made.
2. In presenting the application for an extension of time, Mr Lynch indicated that he had been off for some time and that the respondent's legal advisors had not raised the costs issue. After some thought they had asked about the matter that was the main reason for the application. They further submitted that it was their duty to make sure that they had exhausted all avenues in relation to recovery of expenses. In response to the tribunal he confirmed that the original reason for the delay in making an application for costs had been that they had hoped to reach an agreement privately with the claimant and that, as had been indicated in a prior letter to the Tribunal, they had sent accounts to the claimant on two or three occasions in January or February which were ignored. He also stated that it was implicit that the monies should not be used up in legal expenses in this matter but should be used for its main purposes.

The claimant, in response, pointed out that the respondents had been legally advised at all times and, in any event, had ready access to advice as to the rules and time limits involved on their own database. It appeared from the correspondence that the period of absence to which Mr Lynch had referred in his submissions had taken place subsequent to their letter of 4 April. There seemed no reason why the matter should not have been dealt with in Mr Lynch's absence; the letter of 29 May had been signed on Mr Lynch's behalf by a Ms Cassidy who was an advisor perfectly capable of dealing with the letter. None of these suggested reasons justified the granting of the application. As to the suggestion that the respondents were hoping to reach agreement with her on the matter there had been no correspondence or discussions. She had received an invoice on 22 January 2008 without a covering letter but with an endorsement stating that cheques should be payable to Larne and District CAB. There had been nothing further from the respondents until the week prior to the current costs hearing when a further invoice was sent. In this regard Mr Lynch accepted that no covering letter had been sent. The process described, the claimant suggested, did not indicate any attempt or wish to reach an agreement such as was now being put forward as a reason for delay.

3. Mr Lynch also sought to address the issues raised by the provisions of Rule 40. Those provisions make clear that a costs order shall be considered where the paying party has in bringing or conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably or where the bringing or conducting of the proceedings has been misconceived. Mr Lynch suggested that such conduct could be found in a number of ways. First, in the claimant's criticisms of Mr Lynch himself and the manager of the Bureau at the relevant time, Ms Sharon Legg. Examples of this could be found in the claimant's documents contained in the hearing bundle. Furthermore, she had failed to follow the recognised grievance procedures. She had not commenced the constructive dismissal process until after she and Ms Legg had both left the Bureau. She had not appealed the decision following the grievance procedure; she had suggested that her contract had been breached despite the fact that she had undertaken, in her original contract, to accept transfers to other duties within reason; she had failed to make herself conversant with the grievance procedure; she had named Ms Legg and Mr Lynch as respondents, although this was eventually changed; she had submitted extensive evidence to the tribunal, some of which was not relevant and she had been reminded on occasions of the tribunal's remit; the tribunal had stated that it was not satisfied that the evidence given supported Mrs Robinson's statements. Mr Lynch also suggested that the claimant's behaviour in seeking a review and then withdrawing her request was unreasonable.

In response the claimant submitted that she had been at a disadvantage throughout in that she had been unable to fund professional representation and, shortly prior to the hearing, had sustained a significant bereavement. There had been no mention of vexatiousness or unreasonableness at the time of the hearings. It was a matter which could have been raised either during or at the end of the hearing but was not. The naming of Ms Legg and Mr Lynch as respondents had been dealt with immediately by the Labour Relations Agency. It had not appeared to be a matter of major significance to either person concerned at the time and had not been mentioned again. Finally she submitted the fact that she did not win her claim did not mean that she should not have brought it.

4. The first issue for the tribunal was whether it was in the interests of justice to extend the time for the making of the costs application. The first observation the tribunal would make is that the expectation in the Rules is that such applications shall be made timeously. The second observation is that there should be a reason for any delay. The tribunal is also entitled, indeed obliged, to consider the prospects of success in the event of the application being granted. Clearly the application was not within the prescribed time. Even if one allows for any confusion caused by the claimant's original request for a review and subsequent withdrawal the application would not have been made within time. The first mention of costs was on 4 April 2008 and the actual request was made on 29 May. On any timescale that amounts to a delay of well over a month at least. The respondent could and should have been aware of the time limits involved. They were in receipt of legal advice throughout. If they did not chose to seek advice they had ready access to information. Indeed part of their function is to offer advice on such matters to others. The suggestion that they were seeking agreement from the claimant seems wholly unconvincing to the tribunal. No kind of discussion or negotiating process was involved. There had merely been a demand for money, made without the benefit of any justifying order. Nor did the absence of Mr Lynch appear to be related to the initial delay in approaching the tribunal with regard to the matter of costs. All in all the tribunal could not see any reason justifying the failure to apply pursuant to the Rules.
5. In considering the respondent's prospects of success in obtaining an order for costs if leave were given the tribunal considered that its starting point must be that, in the ordinary way, claimants should be entitled to bring unfair dismissal claims to the tribunal without fear of being penalised in costs. So much can be inferred from the vocabulary used in the Rules which only contemplates awards of costs in extreme circumstances. In that regard, the claimant was quite right to point out that the mere fact that she did not win the claim did not mean that she should never have brought it. It is true that the various questions which the tribunal had to answer in relation to the case were resolved in favour of the respondents but that is a far cry from saying that they were bound to be resolved that way or that no other finding was in any way likely or possible. It is also true that the claimant, in some of the documents put before the tribunal, and at the hearing, was forthright and sometimes critical. That is frequently a feature of disputes. In order to satisfy the requirements of the Rules conduct must go well beyond the bounds of what is ordinarily acceptable, and, except in extreme cases, should do so on a sustained basis. The evidence in the case was extensive. In the nature of the case it was always likely to be. Some of that excess material may have arisen through the claimant's lack of forensic expertise but that is not a basis for a costs order. If excessive irrelevant material was permitted that could be regarded as a fault of the tribunal as much as that of the claimant. The tribunal was not satisfied that the claimant's conduct in the bringing and conduct of the proceedings was likely to be considered to be of the order required by the Rules relating to costs so as to amount to vexatious abusive or unreasonable behaviour. Nor did the tribunal consider that seeking and abandoning a review, particularly as it was done quickly, or the original naming of the two senior members of the respondent's staff as respondents, could be regarded as so unreasonable as to attract costs.
6. In all the circumstances the tribunal does not consider that it is in the interests of justice to accept or consider the respondent's application for costs outside the prescribed time.

Chairman:

Date and place of hearing: 14 August 2008, Belfast

Date decision recorded in register and issued to parties: