Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/6222_09IT.html
Cite as: [2010] NIIT 6222_09IT, [2010] NIIT 6222_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6222/09

CLAIMANT: Stephen Hughes

RESPONDENT: CFS Management Services Limited

DECISION ON A COSTS HEARING

The sum of £411.25 in respect of costs is awarded to the respondent.

Constitution of Tribunal:

Chairman (Sitting Alone): Mrs A Wilson

Appearances: Neither party appeared nor was represented.

1. THE BACKGROUND TO THE HEARING

(i) Prior to the hearing the respondent applied to the Tribunal office to have this matter disposed of by way of written submissions without the need for an oral hearing. The Respondent is based in England and had engaged Counsel, practicing for the most part in England, as their representative. It was their application that travel to Northern Ireland would incur disproportionate additional costs and in an effort to avoid such expense this application should be dealt with on paper. Alternatively a postponement of the scheduled hearing was sought on the grounds that Counsel was unavailable on the listed date. Having considered the application I directed that, with a view to disposing of the proceedings expeditiously in accordance with regulation 3 of the Industrial Tribunal (Constitution and rules of Procedure) Regulations (Northern Ireland) 2005 [the Regulations] and bearing in mind the provisions of the Regulations and the requirement to have a public hearing, the matter should proceed at hearing during which consideration would be given to the respondent's written submissions.

(ii) As the claimant did not appear I considered the Regulations in particular Rule 27(5) providing as follows:-

“if a party fails to attend or to be represented (for the purpose of conducting the party’s case at the hearing under Rule 26) at the time and place fixed for such hearing, the Tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.”

Paragraph (6) goes on to state that:-

“If a Tribunal wishes to dismiss or dispose of proceedings in the circumstances described at paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.”

(iii) I considered this provision and decided to dispose of the proceedings and in doing so I considered written submissions received from the respondent and copied to the claimant in advance of the hearing together with a copy e mail received from the claimant dated the 20 March 2010.

2. THE ISSUES

(i) Is the respondent entitled to an award of costs against the claimant pursuant to Rule 40(2) of the Regulations on the grounds that the claimant acted unreasonably in it's conduct of proceedings against the respondent?

(ii) If such an award is made what amount if any is due by the claimant to the respondent?

3. THE RELEVANT FACTS

(i) A pre hearing review was listed to determine whether the tribunal had jurisdiction to consider the claimant's complaint that he was unfairly dismissed by the respondent in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996. The tribunal in it's decision ["the decision"] recorded on the 11th of February decided that it did not have jurisdiction and dismissed the complaint.

(i)

(ii) Having evaluated the evidence the tribunal recorded the following finding of fact at paragraph (11) of the decision:-

”(11) It is the claimant's case that following advice he received during a phone call with an unnamed source in the Tribunal office, he wrote a letter dated the 25 February purporting to be a letter of complaint setting out his claim to the Tribunal. He does not have the name of the person in the Tribunal office with whom he spoke but he has produced a document purporting to be a copy of this letter. The Tribunal have no record of receiving this letter and it is not on their file nor was it on file at a Case Management Discussion on the 29 October 2009. It is not mentioned in the chronological series of events carefully outlined by the claimant in his claim form which was ultimately lodged on the 25 June 2009. For these reasons the Tribunal find on the balance of probabilities that this letter was not written in or around February 2009 but was subsequently prepared for the purposes of these proceedings.”

(iii) On the 22 February 2010 the respondent applied to the tribunal for costs pursuant to Rule 40 (2) of the Regulations on the grounds that the claimant acted unreasonably in pursuing proceedings. In it's application the respondent relied on paragraph (11) of the decision as recited above and included in it's submission the following:-

(iii)

"There is a clear finding [ paragraph 11 of the decision] that the Claimant sought to rely on a document that he had prepared and pre-dated in order to support his claim.

The Claimant issued proceedings substantially out of time and the history as set out in the claim form demonstrates a series of decisions taken after the primary time limit had expired. The Claimant subsequently produced a letter dated the 25 February 2009 which he claimed demonstrated that he had been given incorrect advice by the Industrial Tribunal office.

The finding of Mrs Wilson is entirely unambiguous that the Claimant concocted this letter after the fact purely to support these proceedings."

The respondent referred me to the case of Daleside Nursing Limited v Mrs C Mathew (UKEAT/0519/08/RN) and a copy of that decision as enclosed by the respondent was forwarded to the claimant together with a copy of the respondent's application for information.

(iv) The respondent was represented at the original hearing by Counsel and this costs application is limited to the sum of £585.72 made up of Counsel's brief fee in the sum of £350.00 plus VAT in the sum of £61.25 and Counsel's travelling expenses in the sum of £174.47.

(v) The claimant responded by e mail to the respondent's application in the following terms:-

(v)

"…I wish to refute all allegations made by the Respondent who dismissed me rendering me unemployable for the industry I have trained in that they should incur all costs as I am currently unemployed".

4. THE LAW

(i) This is an application under Rule 40(2) of the Regulations. Rule 40(2) provides:-

”40 (2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.

(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.”

(ii) As a first step I must consider making a costs order and in order to do so for the purposes of this case must consider whether the claimant acted unreasonably as alleged by the respondent in his conduct of proceedings. The question arising is whether following the finding of the Tribunal recorded at paragraph 11 of the decision that the claimant had not written the letter dated the 25th of February in or around February 2009 as alleged but had subsequently prepared it for the purposes of the proceedings, I find the actions of the claimant in his conduct of the proceedings to be unreasonable.

(iii) In considering this question I have considered Harvey on Industrial Relations and Employment Law, Section T and recognise that I have a wide discretion to award costs if I consider the claimant behaved unreasonably in his conduct of the proceedings as is alleged here. I have considered the case of Daleside Nursing Home Ltd v Mathew as cited above and referred to in Harvey at para 1052.01 and find the following extract at paragraphs 20 and 21 helpful:-

”20. In our judgement , in a case such as this , where there is a clear- cut finding that the central allegation of racial abuse was a lie , it is perverse for the Tribunal to fail to conclude that the making of such a false allegation at the heart of the claim does not constitute a person acting unreasonably. Whatever may be their genuine feelings about the other matters of which a complaint is made , on the particular facts of this case it was the fact that the lie was explicit and so much at the heart of the case that , in our judgement, it is appropriate for us to conclude that this was an overwhelming case where the Tribunal has failed properly to address the point , and as a result has come to a perverse conclusion.

21. It therefore follows that, in our judgement, any Tribunal reasonably applying themselves to the findings of fact which they made, must have come to the conclusion that the Claimant had acted unreasonably in bringing and conducting the proceedings, and furthermore was wrong in law in rejecting the claim for costs on that basis.”

(iv) Applying the law as stated above to the decision in this case and in the absence of any contrary position being advanced by the claimant and having found on the balance of probabilities that the letter of the 25 February was not written in or around February 2009 as alleged but was subsequently prepared for the purposes of the proceedings, I now find that the claimant acted unreasonably in bringing and in conducting the proceedings. In reaching this conclusion I find that this alleged letter was at the heart of the claimant's contention that his claim was in time because as found and recorded at paragraph 4(2) at page 4 of the decision, had this letter been written as alleged, the complaint would have been in time.

(v) Having considered making a costs order under Rule 40(2), I considered the provisions of Rule 41(2) which provides that as Chairman I may have regard to the paying party's ability to pay when considering whether to make a costs order or how much that order should be.

(vi) I have no information regarding the claimant's ability to pay beyond the statement in his e mail of the 20 March 2010 referred to above at paragraph 3(v) that he is currently unemployed.

(vii) In all the circumstances of this case and for reasons given above I find it appropriate to make an award of costs. The respondent's application is limited to the specific sum of £575.80 representing the fee paid to Counsel and VAT thereon together with travelling expenses as evidenced by the invoice attached to the respondents costs application.

(viii) Taking into account the fact that the claimant is unemployed I award costs in the sum of £411.25 representing Counsel's fee together with VAT thereon.

Chairman:

Date and place of hearing: 13 April 2010, Belfast.

Date decision recorded in register and issued to parties:

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