Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/1233_08IT.html
Cite as: [2010] NIIT 1233_08IT, [2010] NIIT 1233_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1233/08

CLAIMANT: Susanne McGillin

RESPONDENT: Chief Constable of the PSNI

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the agreement entered into between the parties on 2 February 2010 is a valid agreement for the purposes of Article 9 of the Disability Discrimination Act 1995. The claimant is to pay to the respondent £881.00 in respect of costs incurred.

Constitution of Tribunal:

Chairman (sitting alone): Mrs M Watson

Appearances:

The claimant attended and represented herself.

The respondent was represented by Mr Dunlop, Barrister-at-Law instructed by the Crown Solicitor Office.

1. The claimant had lodged a claim alleging that she had been discriminated against by the respondent on grounds of her disability. The claim was listed for almost two weeks’ hearing beginning on 1 February 2010.

2. On the second day, the tribunal was asked to adjourn the hearing for 6 weeks so that terms of settlement agreed and signed between the parties could be implemented. This included a clause that after implementation, the claimant would withdraw the claim which would then be dismissed.

3. The claimant wrote to the tribunal on 4 February 2010 to ask that the case be relisted for hearing because she had decided to rescind her agreement to the terms of settlement. She advised that the agreement had included a confidentiality clause which prevented her from discussing the terms with her family who had supported her throughout her illnesses. The claimant also enclosed copies of letters she had written to her legal representatives dispensing with their services.

Issue

4. The tribunal wrote to the respondent enclosing copies of the claimant’s letters and requesting its response. The respondent replied that it considered the agreement to be binding. The tribunal arranged this Pre-Hearing Review and notified the parties that the issue for consideration was;

“Whether the agreement entered into between the claimant and the respondent complies with Section 9 of the Disability Discrimination Act 1995 and, if so, whether the tribunal has jurisdiction to hear and determine the claim.”

The Law

5. Section 9 of the 1995 Act is headed ‘Validity of certain agreements’ and states;

(1) Any term in a contract of employment or other agreement is void in so far as it purports to –

(b) exclude or limit the operation of any provision of this Part;

(2) Paragraph (b)…(does) not apply to an agreement … not to continue such proceedings, if –

(a) …

(b) the conditions set out in subsection (3) are satisfied.

(3) The conditions are that –

(a) the complainant must have received advice from a relevant independent

adviser as to the terms and effect of the proposed agreement (and in particular its effect on his ability to pursue his complaint before an industrial tribunal);

(b) when the adviser gave the advice there must have been in force a contract of insurance or an indemnity provided for members of a profession or professional body covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice ; and

(c) the agreement must be in writing, relate to the particular complaint, identify the adviser and state that the conditions are satisfied.

6. A person is a relevant independent adviser for the purposes of subsection (3)(a) –

(a) If he is a qualified lawyer…..

Finding of Fact and Conclusions

7. The tribunal was provided with a copy of the handwritten agreement dated 2 February 2010 and noted that it was signed by the claimant herself. The agreement is fully compliant with the requirements of Section 9 of the Disability Discrimination Act 1995 (as amended).

8. The claimant was provided with a copy of the relevant section of the 1995 Act and taken through it in detail to explain why I considered that each requirement had been met.

9. The claimant explained that she did not believe that she had received ‘independent legal advice.’ She had formed this view because her former Counsel, Ms Askin, had spoken to Mr Dunlop about the case before she met the claimant. In addition, the claimant had made personal enquires about Ms Askin that had caused the claimant concern.

10. Having listened to the claimant’s concerns, it was clear that the claimant had little, if any, idea of what constituted proper conduct for lawyers during the course of preparation for hearings of discrimination cases or other litigation. Not least, the tribunal, at an earlier Case Management Discussion before Ms Askin was instructed, had ordered that the parties were to agree the matters in dispute between them and this could not be done without consultation between both Counsel.

11. The claimant was also concerned by the fact that Ms Askin had provided her Opinion on the merits of the case to the claimant before the hearing. The claimant was advised that it would not only be unusual but quite improper for Ms Askin to have done anything other than what she had done.

12. It was quite clear to the tribunal that the claimant’s difficulties with her legal team arose from the fact that they provided the claimant with a view of her case and the prospects of success that was not in accord with her own.

13. The claimant also insisted that ‘as a matter of law’, she had the right to rescind the agreement. In her view, it was ‘normal everyday practice in law as regards standard contracts that I have the right to rescind within 14 days.’ Indeed, some contracts, according to the claimant could be rescinded within 30 days. The claimant did not provide any statutory basis for this claim.

14. Prior to this hearing, I had researched this topic. I have considered the decisions in several cases including; Hinton v The University of East London [2005] TRLR 552, (EWCA decision), John Crilly v Silent Night (Ireland) Ltd (Case Ref.490/06), Gloystarne & CO LTD v Martin [2001] IRLR 15.; Gutulan v Rainbow Telecom (Case Ref 811/07), and Penton v N. I. Court Service (Case Ref. 2166/02) (dated January 2008). None of these cases were on point as none concerned agreements that were held to have been made in accordance with the relevant statutory requirements.

15. I informed the claimant that I was satisfied that at the time she had signed the agreement, which met the statutory format, that she had the benefit of independent legal advice as defined by Section 9 (4) (a) of the 1995 Act in that she had been advised by two qualified lawyers. The tribunal therefore had no jurisdiction to set aside the terms of the agreement and hear this claim. The respondent has now complied with its obligations under the agreement. The claimant is now bound to withdraw her claim and the claim will then be dismissed as per the terms agreed on
2 February 2010.

Costs Application

16. Mr Dunlop then made an application to the tribunal for the costs incurred by the respondent since the purported rescission by the claimant. These were £1500 plus VAT making a total of £1762.50. He based his claim on his submission that the claimant had been informed at an early stage, on 9 February 2010, that she was bound by the terms of the agreement. She was also advised to get legal advice and warned that there were costs implications from her refusal to adhere to the terms agreed which she had signed. The claimant’s response was not positive and costs were incurred in the preparation for and appearance at this hearing.

17. Mr Dunlop referred the tribunal to Rules 38 and 40 (3) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The relevant part of Rule 40 (3) refers to a party who has acted ‘vexatiously, abusively, disruptively or otherwise unreasonably’. Mr Dunlop submitted that the claimant had acted unreasonably in seeking to set aside the agreement she had signed after having received professional legal advice. She had, in his view, been given every opportunity to reconsider her position through the correspondence sent to her. There was no question, in Mr Dunlop’s view, that the claimant had thereby acted unreasonably.

18. The claimant’s response was that she was now unemployed and had no funds due to having had to meet her earlier legal expenses. She had not sought legal advice on this point as she has lost all faith in the legal system.

19. In considering an application for costs, a tribunal must firstly form an opinion regarding the statutory grounds for the application, then give consideration to making a costs order and finally, determine whether, in all the circumstances, it is appropriate to do so, including the terms of any such order. (See Harvey on Industrial Relations Law at T[1045] et seq. and Crindle v Epcot Leisure Ltd an unreported decision of the EAT dated 24 June 2005.)

20. The statutory ground for an application to a tribunal to make Costs Orders is set out at Rule 38 (1) of the 2005 Regulations. In my opinion, this ground is satisfied. In considering whether to make the order, I now go on to form an opinion on whether or not the claimant has, as contended by Mr Dunlop, acted unreasonably in continuing to seek to rescind the agreement when she has been advised (by the respondent) that she cannot do so and will face a penalty if she persists.

21. The claimant is not legally qualified. Indeed, as noted above, she has little if any appreciation of the legal process and she has demonstrated to me at this hearing that her beliefs regarding her legal rights have no basis in law. She has also stated that she had lost faith in the legal process. She has clearly formed the view that she is a victim of a great injustice and not likely to accept at face value the assertions of the respondent - or indeed anyone who does not agree with her view.

22. The claimant has chosen to disregard advice from her formal legal representatives in seeking to set aside the terms of this compromise agreement. In doing so, she has made allegations of personal and professional misconduct against her former advisers. She has also chosen to disregard advice from the respondent’s legal advisers without any apparent attempt to ascertain whether her own views had any merit. Warnings of the consequences were interpreted as threats. This constitutes unreasonableness on the part of the claimant.

23. The English Court of Appeal, in the case of McPherson-v-BNP Paribas [2004] IRLR 559, advised tribunals that in exercising its discretion whether or not to award costs, regard must be had to the ‘nature, gravity and effect of the unreasonable conduct’.

24. In this case, time and effort in responding to the claimant’s correspondence and preparation for and appearance at this hearing have incurred the costs claimed. However, I am also aware that an award of costs should be compensatory rather than punitive. (Davidson-v-John Calder (Publisher) Ltd [1985] IRLR 97. On that basis, an award of half costs, £881.00, is appropriate.

Chairman:

Date and place of hearing: 12 April 2010, Belfast.

Date decision recorded in register and issued to parties:

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