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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Maguire v Speechmatters [2009] NIIT 9610_03IT (11 May 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/9610_03.html
Cite as: [2009] NIIT 9610_03IT, [2009] NIIT 9610_3IT
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THE INDUSTRIAL TRIBUNALS



CASE REF: 9610/03 IT




CLAIMANT: Jennifer Maguire



RESPONDENT: Speechmatters




DECISION ON COSTS

The unanimous decision of the Tribunal is that the claimant pay the respondent £10,000 costs.





Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Mrs S Doran

Mr J Hughes


Appearances:


The claimant appeared in person and represented herself.


The respondent was represented by Mr Mark Robinson, of Counsel, instructed by Gary N Daly Solicitors.



Background


  1. The claimant lodged a claim of unfair dismissal in breach of The Public Interest Disclosure (Northern Ireland) Order 1998 on 15 December 2003 alleging that her contract of employment had been terminated following her having raised grave concerns of financial irregularities and false accounting with the Chief Executive of the respondent organisation.


  1. In their response dated 2 February 2004 the respondents denied that the claimant had made any allegations against any person or persons in respect of financial irregularities and refuted the claimant’s claim in its entirety. The Tribunal heard the evidence on various dates between January 2007 and April 2008, sitting for a total of 58 days. A decision was recorded in the register and issued to the parties on 26 November 2008, dismissing the claimant’s claim.

This Hearing

  1. The purpose of this hearing was to hear the respondents’ application for costs against the claimant and to hear the claimant’s comments in relation to those submissions.

  2. The Tribunal heard submissions from the respondents’ representative and from the claimant.

The Respondents’ Submissions

  1. The respondent’s Counsel, Mr Robinson, indicated that he was making the application for costs on foot of Schedule 1 Rule 14 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004. Mr Robinson also referred the Tribunal to Harvey, Division T, Practice and Procedure at paragraph 1043 et seq.

  2. Mr Robinson submitted that where rule 14 of the Order obliged a Tribunal to consider an application for costs that the Tribunal had discretion whether or not to award costs. Mr Robinson urged the Tribunal to exercise its discretion in this case and to make an award for costs up to the maximum permitted limit.

  3. Mr Robinson indicated that the respondents were basing its application for costs on the grounds of the unreasonable conduct of the claimant. Mr Robinson submitted that when making a costs order on this ground the discretion of a Tribunal is not fettered by any requirement to link the award of costs causally to the costs actually incurred as a result of the conduct deemed unreasonable.

  4. Mr Robinson urged this Tribunal to award the maximum amount of costs permitted under the rules. Mr Robinson went on to suggest that under Rule 14 a Tribunal was empowered to make three separate awards of costs thereby permitting the maximum award to be £30,000, as opposed to £10,000. Mr Robinson suggested that this was on the basis that the Order provided three separate grounds on which costs could be awarded, being the vexatious, abusive, disruptive or unreasonable behaviour of the claimant in (1) bringing or (2) conducting these proceedings or (3) that her actions in bringing these proceedings have been misconceived. However Mr Robinson offered no authority in case law or other commentary to support this submission.

  5. Mr Robinson submitted that the Tribunal should award costs against the claimant for her bringing the case on the basis that in doing so the claimant manufactured a case against the respondents. The respondents’ need to respond to this case cost the respondents dearly, not only in legal expenses but also in the time spent by the witnesses attending the Tribunal and not being at their posts.

  6. Mr Robinson indicated that the case as manufactured by the claimant necessitated a full fraud investigation and audit carried out by the Department of Health and Social Services and Public Safety and the Counter Fraud Unit in the Northern Ireland Health Service. Mr Robinson also indicated that in answering the claimant’s manufactured claim the respondent had to call on six witnesses external to the respondent organisation.

  7. Mr Robinson submitted that the claimant manufactured the entire claim on the basis of her hatred for the Chief Executive of Speechmatters, Mrs Jacquie White. Mr Robinson stressed that the claimant had attacked Mrs White’s professional reputation and ability and sought at all times to undermine her honesty and integrity. Mr Robinson submitted that the claimant had not confined herself to doing this within the claimant’s employment environment but had gone further and had sought to discredit Mrs White as publicly as possible.

  8. In this regard Mr Robinson referred the Tribunal to the e-mails sent by the claimant to MLAs, journalists, numerous Government Departments and finally to the Inland Revenue. In this latter regard Mr Robinson submitted that the claimant had deliberately distorted the legal advice she had been given in relation to the Inland Revenue by suggesting that she had been directed by her lawyers to report Mrs White when in fact this had not been the case.

  9. Mr Robinson also submitted to the Tribunal that paragraph 237 of the Tribunal’s decision supported the respondents’ submission that the claimant had not made an attempt, in the bringing of her claim and the conduct of the hearing, to assess the viability of the evidence in the case or on the strength of her claim. Mr Robinson stated that his submission in this regard was further borne out by the claimant’s refusal during the hearing to accept the independent evidence from Mr Anderson, Mr Barkley and the financial accounts as prepared by the independent accountants.

  10. Mr Robinson drew the Tribunal’s attention to instances of the claimant’s behaviour during the hearing that he submitted were unreasonable. He submitted that these included the following; the claimant’s attempt to “bully” the respondent by requesting the Press to attend the first day of the hearing, her claimant’s allegation that the respondent’s witnesses were discussing evidence while under oath; her constant sighing throughout the hearing in response to the evidence of the respondent’s witnesses.

  11. Mr Robinson also submitted that the claimant’s behaviour was unreasonable, at the outset of the hearing and throughout its entirety, in that the claimant’s claim was based on the allegation that all staff members in the respondent organisation had been part of a conspiracy against the claimant and that during the hearing the claimant expanded this allegation of conspiracy to include all parties and the respondent’s witnesses, including those who were independent of the organisation.

  12. Mr Robinson accepted there had been some delay on behalf of the respondents in the production of documents during the hearing. However, Mr Robinson indicated that these were documents requested by the claimant at hearing in spite of the fact that the claimant had had legal representation up to one month before the hearing and had therefore the benefit of advices in relation to the issues in her case and to the use of discovery. Mr Robinson indicated that the late timing of the claimant’s requests and the consequent search for paper work relating to events that had occurred four years previously made the immediate production of some documents difficult.

  13. However, Mr Robinson indicated that during the search for such documents the Tribunal continued and any delay by the respondent in this regard was dwarfed by the delay caused by the claimant’s conduct. Mr Robinson went on to stress that if all documentation had been produced by the first day of the hearing to the claimant the claimant would still not have been satisfied with the answers provided.

  14. Mr Robinson urged the Tribunal to find that the claimant has also acted in an abusive manner. Mr Robinson submitted that the claimant’s behaviour in manufacturing a case against the respondent and the way in which she conducted the hearing amounted to an abuse of the Tribunal system itself.

  15. Mr Robinson also submitted that the claimant had behaved vexatiously on the basis that the claimant had acted out of spite toward Mrs White which was an improper motive for bringing a claim. Mr Robinson referred the Tribunal to Harvey at Paragraph 1044 and the cases cited thereat and in particular the case of E T Marler Limited –v- Robinson 1974 ICR72 where vexatious conduct was described thus “if an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive he acts vexatiously and likewise abuses the procedure. In such cases the Tribunal may and will usually award costs against the employee…”.

  16. In another case, Keskar –v- Governors of All Saints Church of England School 1991 ICR 493 costs were awarded against the claimant on the basis that he was “motivated by resentment and spite in bringing proceedings” and that there had been “virtually nothing to support his allegations.”

  17. Mr Robinson submitted that in the instant case the claimant had not only acted out of spite and resentment against Mrs White and the respondent, but that there was actually nothing in the claimant’s case to support her outrageous allegations.

  18. Mr Robinson submitted the Solicitor’s bill to the Tribunal. The professional costs in the case totalled £149,225.

  19. Mr Robinson submitted that his application for costs gave the Tribunal an opportunity to demonstrate that if a claimant comes before a Tribunal and lies, deceives and otherwise abuses the Tribunal process there will be a sanction against such a claimant. Mr Robinson went on to stress this sanction must be effective or it would leave open the door for other claimants so to abuse the Tribunal by raising wholly malicious and unsubstantiated allegations against a respondent without any risk of costs.

  20. Mr Robinson stressed that the claimant in this case had been put on notice by the respondents of their intention to seek costs against her throughout the process.

The Claimant’s Response

  1. The claimant submitted that much of her confusion and misunderstanding about her claim and during the case was due to the fact that she was unrepresented. The claimant suggests that this had been endorsed by the Tribunal and particularly in relation to the episode where the claimant accused the witnesses of improperly discussing the case.

  2. The claimant submitted that the threat of costs had been made by the respondent before and during the hearing purely to intimidate her and to deter her from bringing her case. In this regard the claimant submitted a paper issued by the Citizens’ Advice Bureau entitled “Employment Tribunals – Intimadatory Use of Costs, Threats by Employers’ Legal Representatives”.

  3. The claimant indicated that although she disagreed with the Tribunal’s decision against her she accepted that this was the Tribunal’s decision.

  4. The claimant submitted a number of documents including her business accounts, her personal accounts and a set of accounts prepared by an accountant. The claimant also submitted a document which appeared to have been downloaded from the internet. This document referred to “Unusual Asthma Symptoms”. The claimant referred the Tribunal to the fact that “the sighing” was included in the list of unusual asthma symptoms and reiterated her explanation that her sighing during the evidence of the respondent’s witnesses had been due to her asthmatic condition.

The Law

29. The Tribunal considered the relevant legislation and case law.



The Legislation

30. Schedule 1 Rule 14 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004. This rules states

(14—(1) Where, in the opinion of the Tribunal, a party has in bringing the proceedings, or a party or a party’s representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or a party’s actions in bringing the proceedings have been misconceived, the Tribunal shall consider making, and if it so decides, may make-

    1. an order containing an award against that party in respect of the costs incurred by another party;

(3) An order containing an award against a party (“the first party”) in respect of the costs incurred by another party (“the second party”) shall be—

(a) where the Tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000;

31. The Tribunal read the relevant case law and in particular the cases referred to it by the respondents’ counsel.



The Tribunal’s Conclusions

  1. The Tribunal noted that in spite of the substantial changes to the rules and regulations in relation to the awarding of costs that the fundamental principles remain that costs are of the exception rather than the rule and that unlike other court hearings costs do not follow the event.

  2. However, the Tribunal also noted that under Rule 14 if the Tribunal concluded that the claimant had acted vexatiously, abusively, disruptively or other wise unreasonably in the bringing or conducting of these proceedings or that her actions in bringing the proceedings has been misconceived the Tribunal was obliged to consider making an order for costs. The Tribunal also noted that the exercise of its power under Rule 14 to award costs was discretionary. In reaching its conclusion in this case the Tribunal took account of its obligations in relation to the exercise of its discretion, namely to act reasonably and fairly and to address the balance of issues between the parties.

  3. In addition to noting that a Tribunal has a wide discretion to awards costs on statutory grounds the Tribunal also noted the wide range of the statutory provisions themselves and that those grounds cover every aspect of the proceedings including the inception of the claim itself through to the conduct of the claimant at the substantive hearing.

The Bringing and Conducting of Proceedings

  1. The Tribunal concluded that the claimant had instigated a vicious claim against the respondents motivated almost exclusively by her hatred and loathing of the Chief Executive of the respondent organisation. In reaching this conclusion the Tribunal took account of the fact that the allegations against Mrs White went beyond Mrs White’s alleged behaviour as Chief Executive and sought to denigrate Mrs White not only in a professional capacity but also in her personal and private life. In this regard the Tribunal relied on the case of ET Marler Limited –v- Robertson 1974 ICR72 where vexatious conduct (or conducting) proceedings was described “If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers of for some other improper motive he acts vexatious, and likewise abuses the procedure. In such cases the Tribunal may and doubtless usually will award costs against the employee …”.

  2. The Tribunal also concluded that the claimant had invented an unmeritorious claim for dismissal on the grounds of a protective disclosure on the basis that this was the only possible claim where she could attempt to challenge the respondent’s position to dismiss her. The claimant had not sufficient qualifying service for a claim of unfair dismissal.

Conducting Proceedings

  1. The Tribunal concluded that the claimant had behaved vexatiously, abusively and disruptively in the conduct of the hearing of her claim. In reaching this decision the Tribunal took account of the unfounded allegations of serious financial misconduct put to the respondent witnesses by the claimant while all the time she knew that these were so unfounded.

  2. The Tribunal also took into account the manner in which the claimant behaved toward the respondents’ witnesses during the hearing and in particular the way in which the claimant sighed during the evidence of the respondent witnesses. Although the Tribunal read the literature provided to it by the claimant on this subject the Tribunal did not decide whether sighing was or was not an unusual aspect of an asthmatic condition. However the Tribunal did discount the claimant’s assertion that her sighing in these circumstances was on account of her having any such unusual symptom of her asthmatic condition. The Tribunal did not accept that on those occasions when the claimant sighed during the hearing that this was an example of that unusual asthmatic condition. The Tribunal noted that the claimant sighed when she was at odds with the respondents’ evidences.

  3. The Tribunal also concluded that the claimant behaved disruptively throughout the conduct of the hearing of her claim. The claimant made unmeritorious allegations of a conspiracy against all of the respondent’s witnesses which had the effect of requiring the respondent’s to answer these allegations. The Tribunal took into account that the allegations of a conspiracy involving the respondents’ witnesses was made during the hearing, the only basis for which was the fact that the evidence of the respondents’ witnesses and their demeanour in giving it was making it clear that the claimant’s claim was so unmeritorious and not likely to succeed. The conspiracy allegation was born out of the claimant’s determination that in spite of all evidence to the contrary her claim should succeed.

  4. The Tribunal also took into account the claimant’s disruptive behaviour towards the respondents’ witnesses including the many occasions when she accused them of lying to the Tribunal and in particular the occasion when the claimant accused the respondents’ witnesses of discussing the case during a recess. Immediately after the recess period the claimant raised no objections to the respondent witnesses’ behaviour. Instead the claimant raised the matter the following morning and did so, the Tribunal concludes, in order simply to blacken the character of the respondents’ witnesses and seek to castigate them in the Tribunal’s eyes.

Bringing Conducting Proceedings Misconceived

  1. The Tribunal noted that the form of words in the statute, “misconceived”, replaced the previous formulation whereby costs could be awarded against the party if, in bringing or conducting the proceedings, the party “acted frivolously”. The Tribunal noted the case law in this regard and concluded that the new term “misconceived” included the claimant’s having acted in circumstances where her claim had no reasonable prospect of success. The Tribunal decided that this test of having no reasonable prospect of success included an objective analysis of the substance of the case as pleaded and presented and an analysis of the motivation and behaviour of the claimant in the bringing or conducting of such a claim.

  2. In this case the Tribunal concluded, on the basis of its finding that the claimant had invented the claim against the respondents that the claimant’s actions brought her well within the understanding of “the bringing and conducting of proceedings by a party has been misconceived”. The Tribunal also took into account that the claimant’s perseverance in continuing with her claim to the point that its only success was founded on the secondary invention of a conspiracy involving all the respondents’ witnesses which indicated to the Tribunal that the claimant had continued with a claim that had no reasonable prospect of success.

  3. Accordingly the Tribunal concluded that the claimant had in bringing the proceedings and in conducting the proceedings acted vexatiously, abusively, disruptively and otherwise unreasonably and that her actions in bringing the proceedings had been misconceived. The Tribunal decided that in these circumstances to consider making an award of costs against the claimant.

  4. In deciding to make an award of costs against the claimant the Tribunal took into account the claimant’s decision as an unrepresented claimant. The Tribunal did not accept that the claimant was either confused or unaware of the effect of her actions in bringing her claim or conducting the proceedings. The Tribunal noted that the claimant had the benefit of union support at the outset of her claim and the benefit of legal advices up to a month before the hearing.

  5. The Tribunal also noted that the claimant was an intelligent and articulate woman who appeared only to have difficulty with legal or procedural issues when these operated against her. In fact the Tribunal decided that the claimant frequently sought to hide behind and take advantage of her unrepresented position and has brought some notoriety to unrepresented claimants. The Tribunal noted Mr Robinson’s submission that an order for costs should act as a sanction against an unrepresented claimant making an unmeritorious and solicitous claim and pursuing it through the Tribunal. The Tribunal agreed with that submission as far as it went but would add that this sanction, in the Tribunal’s view, applies to any party who comes to a Tribunal with a vexatious and/or unmeritorious claim, represented or not.

  6. The Tribunal noted that under Rule 14 of the Regulations the Tribunal was not obliged to take into account the claimant’s ability to pay costs. However in the exercise of its discretion and mindful of the need to find a balance between the parties the Tribunal considered the documentation from the claimant to assist it reach its decision. The Tribunal had sight of some documentation purporting to be accounts in relation to the claimant’s earnings and her outgoings. The Tribunal also had sight of the claimant’s personal banking accounts. The claimant offered no further evidence of her financial position.

  7. The claimant did not accept Mr Robinson’s submission that in the wording of the rule the Tribunal could award on three separate bases. The Tribunal decided that although a Tribunal could find that a party has in bringing the proceedings or conducting proceedings acted vexatiously abusively, disruptively or otherwise unreasonably or that the party’s actions in bringing proceedings have been misconceived. The Tribunal decided that these were instances when costs could be awarded but were not free-standing heads of possible costs awards.

  8. The Tribunal also noted that Rule 14(3) (a) did provide a maximum figure in respect of any order made by the Tribunal against the second party and that that rule specifically referred back to the first enabling rule, thereby acting as an upper limit on the total awarded.

  9. Given its conclusions of fact in relation to the claimant’s bringing and conducting these proceedings the Tribunal decided to award the maximum amount of costs against the claimant, in the sum of £10,000.

  10. Accordingly the Tribunal orders the claimant to pay the respondent the sum of £10,000 in respect of costs.






Chairman:



Date and place of hearing: 13 February 2009, Belfast.



Date decision recorded in register and issued to parties:

11

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