Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 655_6IT, [2008] NIIT 655_06IT

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Carabine v Royal Mail [2008] NIIT 655_06IT (13 February 2008)

THE INDUSTRIAL TRIBUNALS

CASE REFS: 655/06;

1120/06

CLAIMANT: Stephen Carabine

RESPONDENT: Royal Mail

DECISION ON COSTS

It is the decision of the tribunal that the claimant has behaved unreasonably in conducting the cases brought under the case reference numbers set out in the title to this decision. The tribunal orders the claimant to pay the respondent's costs in the sum of £3,021.00.

Constitution of Tribunal:

Chairman: Ms Crooke

Appearances:

The claimant did not appear and did not instruct any representation. He did not send any written representations to the tribunal.

The respondent was represented by Mr David Dunlop, Barrister-at-Law, instructed by Napier & Sons Solicitors.

THE LEGAL ISSUE

The legal issue before the tribunal was the entitlement of the respondent to have its costs paid in respect of the earlier hearing in this matter held on 31 August 2007 together with its costs of today's hearing.

APPLICABLE LAW

The applicable law is found in Rule 40(1) and (3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 which state as follows:-

40(1) A tribunal or chairman may make a costs order when on the application of a party it or he has postponed the day or time fixed for or adjourned a hearing under Rule 26 or Pre-Hearing Review. The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.

(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.

THE FACTS

The claimant failed to comply with the notice of hearing in that his bundle of documents/written submissions were not served upon the respondent not less than seven days before the date of the hearing for consideration by the tribunal at the hearing.

The claimant did not provide a proper witness statement but rather a list of typed scripts submissions which were not signed. Therefore it was necessary for the respondent to deal with the case as if the claimant was going to appear and give evidence in person. It was not until the morning of hearing that the respondent was informed that the claimant would not attend to give evidence. Had the claimant informed the respondent in advance, it would not have been necessary to bring Mr Buckley from the Midland to give evidence on the facts of his interaction with the claimant during the unofficial action.

On 31 August 2007 in accordance with Rule 27(5) the tribunal chose to dispose of the proceedings in the absence of the claimant. On that date an application for costs was made on behalf of the respondent but it was not possible for the respondent to proceed with it as in accordance with Rule 38(9) costs orders shall not be made unless notice has been sent to the party against whom the order may be made giving him the opportunity to give reasons why the order should not be made.

We accept that notice has been duly given to the claimant.

We find that the claimant has behaved at the very least unreasonably in his conduct of the proceedings by his failure to comply with the requirement to serve written submissions on the respondent to avoid the necessity for Mr Buckley having to come to Northern Ireland to give evidence. The tribunal is supported in reaching this finding by the respondent's submission that Mr Carabine has given evidence before the industrial tribunal and has been cross examined so it is not a case where he is unaware of procedure. Furthermore he has brought two previous claims against the respondent. Furthermore Mr Carabine is a fulltime official of the Communication Workers' Union

CONCLUSIONS

Accordingly, Mr Carabine is ordered to pay the respondent's costs as set out below:-

In respect of hearing on 31 August 2007

Solicitor's costs for attendance at hearing

time 9.30am to 11.50am = 2 hours 20 minutes

at £150 per hour + VAT = £350 + VAT = £411.25

Solicitor's professional time for hearing to include

briefing counsel (2 hours) putting together bundle

for use at hearing (1.5 hours) consulting with

client on 30 August 2007 (1.5 hours)

Total 5 hours at £150 per hour + VAT of £750 £881.25

Counsel's Costs

7 hours research and consideration

of papers at £100 per hour = £700 + VAT of £122.50 £822.50

Consultation time of 1.5 hours £150 + VAT of £26.25 £176.25

Attendance at hearing on 5 December 2007

£350 + VAT of £61.25 £411.25

Costs of Mr Buckley in attending to give

evidence in respect of travel and subsistence £318.50

Total costs incurred by respondent £3,021.00

Chairman:

Date and place of hearing: 5 December 2007, Belfast.

Date decision recorded in register and issued to parties:

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