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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gannon v Wave Trauma Centre [2009] NIIT 352_07IT (05 January 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/00352.html
Cite as: [2009] NIIT 352_7IT, [2009] NIIT 352_07IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 00352/07
CLAIMANT: Paul Gannon
RESPONDENT: Wave Trauma Centre
DECISION ON AN APPLICATION FOR A REVIEW
I hereby confirm the tribunal’s decision of 19 August 2008 to order the claimant to pay to the respondent the sum of £500 +VAT (£587.50) by way of costs.
Constitution of Tribunal:
Chairman (Sitting Alone): Mr S A Crothers
Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Mr Jackson, Solicitor, of Thompsons Solicitors.
THE APPLICATION
1. A decision of this tribunal was issued on 21 February 2008 dismissing the claimant’s complaint that he was entitled to one month’s wages in lieu of notice pay, having found that he had been summarily dismissed. A further decision of this tribunal was issued on 19 August 2008 ordering the claimant to pay to the respondent costs in the sum of £500 +VAT (£587.50). The claimant requested a review of the tribunal’s decision of 19 August 2008 on the grounds of the interests of justice under Rule 34(3)(e) of the Industrial Tribunal Rules of Procedure 2005. In doing so, the claimant raised a number of matters in his correspondence to the tribunal, including, in terms, whether it was appropriate for Value Added Tax (“VAT”) to be charged on any such costs ordered by the tribunal, the basis for such a calculation, and the validity of any such order in circumstances where costs are paid by the respondent. The claimant also relied on the concept of natural justice. The claimant indicated that he would furnish written submissions for the hearing. He did not do so and chose not to attend the hearing. In his absence, the tribunal therefore considered the correspondence he had furnished to the tribunal office requesting a review of the decision in the interests of justice.
THE ISSUES
2. The issue for the tribunal was whether the decision to order the claimant to pay to the respondent the sum of £500 +VAT (£587.50) should be reviewed in the interests of justice.
FACTS AND LAW
3. The facts and law in relation to the tribunal’s discretion to award costs are set out in the tribunal’s decision of 19 August 2008. This tribunal does not intend to repeat the contents of that decision.
SUBMISSIONS
4. Mr Jackson, referring to the authorities furnished to the tribunal at the previous hearing, focused, in particular, upon the tribunal case of Stephen Carabine v Royal Mail (Case Ref: 655/06; 1120/06) to illustrate that it was perfectly legitimate for him to have furnished a schedule of costs at the rate of £150 +VAT. In any event, and referring to the practice in the County Court and the High Court, he submitted that any award for costs would necessarily attract an element of VAT. This would be the case even if a round figure for costs had been ordered. Moreover, he submitted that in this case the tribunal should consider increasing the costs award against the claimant on two bases namely:-
(1) Since the date of the costs hearing on 9 June 2008, it was clear from the claimant’s correspondence that, contrary to the indication given by him at that hearing, he had continued in employment and there were indications in correspondence from him of 29 September 2008 and again on 8 October 2008 that he was still employed by the Northern Ireland Office.
(2) Having indicated that he would furnish written submissions for the hearing and not having done so, meant that an oral hearing was held when it could have been avoided had the claimant furnished the written submissions as indicated by him.
THE LAW
5. The ground for reviewing a decision on the basis that the interests of justice require such a review has to be interpreted in accordance with the tribunal’s overriding objective. This does not mean however that in every case where a party is unsuccessful he is automatically entitled to have the tribunal review the decision. “This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order” (Fforde v Black EAT 68/80). It is also clear that the interests of justice as a ground for review means the interests of justice to both sides. It is generally acknowledged that review applications brought under this ground generally fall into two main areas:-
(1) There has been a procedural mishap where, for example, a tribunal reaches a finding without allowing the claimant’s solicitor to make submissions on a particular point (Trimble v Supertravel Ltd 1982 ICR 440 EAT); or
(2) Where the original tribunal decision is undermined by events occurring shortly after it was given.
CONCLUSIONS
6. The tribunal has carefully considered the basis for the application for review together with the claimant’s correspondence and submissions and is satisfied, on the law, that it should confirm its original decision in accordance with Rule 36(3) of the Industrial Tribunal Rules of Procedure 2005.
Chairman:
Date and place of hearing: 22 December 2008, Belfast.
Date decision recorded in register and issued to parties: