Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 7527_09IT, [2010] NIIT 7527_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7527/09

CLAIMANT: Linda Mary Cass

RESPONDENTS: 1. AMT– Sybex Ltd

2. John Murphy

3. Paul Reynolds

4. Tom Devlin

5. Brian Mitchell

DECISION

The above claim is dismissed, the claimant having failed to comply with the Unless Order dated and issued to the claimant on 21 October 2010. The claimant is ordered to make a payment of £4,000 towards the costs incurred by the respondents in this case.

Constitution of Tribunal:

President (sitting alone): Eileen McBride

Appearances:

The claimant did not attend the Hearing.

The respondents were represented by Mr P Sefton, Barrister-at-Law, instructed by Murphys Solicitors.

1. A Pre Hearing Review took place on 24 September 2010 to consider whether:-

(i) the claimant’s claim which contained the following complaints:-

(a) less favourable treatment of the claimant on the ground that the claimant is a part-time worker – Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, as amended;

(b) unlawful detriment under Regulations 7(2) and 7(3)(a)(i) of the said Regulations on the ground that the claimant has brought proceedings against the employer under the above Regulations; and

should be struck out on the ground that the claimant had failed to actively pursue it; and

(ii) whether the claimant should be ordered to make a payment in respect of the costs incurred by the respondent in this case.

2. Following that Pre Hearing Review, the President concluded the claimant had failed to take reasonable steps to progress her case to Hearing. The President also concluded that the manner in which the claimant had behaved showed a disrespect and/or contempt for the tribunal and its procedures and that it would not be just to allow the claimant to continue to have access to the tribunal for her claim. However, having regard to the fact that strike out is the most serious of sanctions, the President decided that the claimant should be given a further opportunity to either agree or to amend the list of factual issues which the respondents’ solicitor had sent her on 21 April 2010 for consideration. On 21 October 2010 an Unless Order was therefore issued to the claimant informing her that unless she informed the Secretary to the Tribunals and the respondents’ solicitor, in writing, by 9 November 2010 that she agreed the list of factual issues which the respondents’ solicitor had sent her on 21 April 2010 for her consideration or unless she sent the Secretary to the Tribunals and the respondents’ solicitor an amended list of factual issues by 9 November 2010, her claim to the tribunal would be struck out without further consideration of the proceedings and without further notice or hearing for failing to actively pursue it. A copy of the decision following the Pre Hearing Review and a further copy of the list of factual issues which the respondents’ solicitor had sent to the claimant on 21 April 2010 were attached to the Unless Order. The decision also made it clear that this Hearing would take place to finalise the issues, progress the case to Hearing and determine the respondents’ application for costs, if the claimant did comply with the Unless Order and to determine the respondents’ application for costs, if she did not comply with the Unless Order.

3. On 26 October 2010 the claimant e-mailed a letter dated 20 October 2010 to the tribunal. The letter appeared to refer to the claimant’s previous claim, case reference number 07/08 which was dismissed following a full Hearing and this claim. By e-mail dated 27 October 2010 the claimant was informed that the President, having considered the letter, considered that it appeared to be seeking advice from the President which the President could not give either party as the President must remain neutral between the parties. The claimant did not respond to suggest that the President had misinterpreted the purpose of her letter.

4. By e-mail dated 9 November 2010 at 14.57, the claimant sent the Secretary to the Tribunals a copy of her e-mail of the same date and time to the respondents’ solicitor. The e-mail stated:-

“Just a note for Sheena Murphy to say that the only legal and factual issues i have in relation to case 7527/09IT are those i paid for and you agreed previously.

I am not a legal person and cannot agree any other documents. My submissions are these legal and factual issues.”

5. By fax dated 9 November 2010 at 17.28, the respondents’ solicitor sent the tribunal a copy of their e-mail to the claimant dated 9 November 2010 at 16.27. That e-mail stated:-

“We acknowledge safe receipt with thanks of your e-mail forwarded to us this afternoon.

We wish to advise you that our Mrs Murphy has never had the opportunity to examine or agree the legal and factual issues to which you are referring in connection with case reference 7527/09IT.

We would very much appreciate if you could clarify the observations made by you in this e-mail.”

6. As no issues had been received by the tribunal with the claimant’s e-mail of 9 November 2010 at 14.57, the parties were informed by e-mail dated 10 November 2010 at 09.49 that the President had directed that the claimant send the tribunal a copy of the legal and factual issues which she had stated Murphys Solicitors had previously agreed by 4.00 pm on 10 November 2010 otherwise her claim would be struck out.

7. By e-mail dated 10 November 2010 at 17.12, the claimant wrote to the Tribunal Secretary in the following terms:-

“I have only just read your e-mail as i have had to take my mum to the hospital today and have not been on the computer. Can you advise the President and let me know the outcome please. I will log on later this evening.”

8. By e-mail dated 11 November 2010 at 11.35 the claimant wrote to the Tribunal Secretary in the following terms:-

“I have just logged on but have also just had a telephone call to go to my mum. She is poorly and the doctor is coming out now so i will try and read these later. I can send another copy of the legal and factual issues then if needed but Sheena does already have a copy although the Chairman will have the other set in the last case. Please offer my apologies to the President but i must see to my mum first.”

9. By e-mail dated 11 November 2010 at 14.00, the claimant was informed by the Tribunal Secretary, for the avoidance of doubt, that the Hearing remained listed for 12 November at 10.00 am.

10. By e-mail dated 11 November 2010 at 16.44, the claimant wrote to the Tribunal Secretary in the following terms:-

“I am sorry i have not been able to send these quicker than now. I had hoped the Doctor would have come sooner this morning but he didn’t. I then had to leave my mum’s at 1.45pm to support my husband at an appointment in Belfast at 2.30 pm and i am not long home. I hope this is all is needed. Having put before the President my reason for not attending the tribunal hearings in my last letter it really does not matter now what time it takes place. I will contact Sheena Murphy. I would like my correspondence used at the Hearing as well as these legal and factual issues if my claim has not been struck out.”

11. By e-mail dated 11 November 2010 at 16.49 the claimant wrote to the Tribunal Secretary in the following terms:-

“Please find continuation issues as i can only send two at a time. The issue of costs i believe should not even be addressed as previously stated. It is unfair and unjust. Case 07/08 costs were dealt with. I await the answer to my question what action the tribunal have taken against Sheena Murphy regarding the pension issue?”

12. Four pages setting out five complaints, seven legal issues and 58 factual issues under the case reference number 07/08 were e-mailed to the tribunal.

13. Mr Sefton’s primary submission was that the claimant had clearly not complied with either limb of the Unless Order within the time limit and her claim must be treated as having been automatically struck out. Mr Sefton also submitted that the list of factual issues which the claimant sent outside the original and extended time limits of the Unless Order were clearly not an amendment of the list of issues which the respondents’ solicitor had sent to the claimant in April 2010. Not only were they marked with the case reference number of the claimant’s earlier case, but they clearly were the issues which had been prepared on behalf of the claimant for that earlier case and they had not been agreed by the respondents’ solicitors previously. While two of the 58 factual issues set out could conceivably refer to the current claim, if the President accepted that the claimant had been imbued with the foresight to put forward issues for a claim which had not yet been made, the overwhelming preponderance of the factual issues i.e. the remaining 56, clearly related to the claimant’s previous claim which was dismissed following a full Hearing. There was therefore no conceivable way that this list of issues complied with the Unless Order.

The legal principles

14. The Employment Appeal Tribunal in the case of The Royal Bank of Scotland –v- Abraham, Appeal No. UK EAT/0305/09/DM followed the principles laid down by the Court of Appeal in the case of Marcan Shipping (London) Limited –v- Kefalas and Another (2007) EWCA Civ 463. Those cases confirmed that where the tribunal determines that there has been complete or partial non-compliance with an Unless Order, then the sanction of strike out comes into effect, unless the party in default has applied for relief against the sanction of strike out or the tribunal itself decides, for some exceptional reason, that it should grant relief not to strike out of its own initiative. Although the tribunal can act of its own motion, it is under no duty to do so and the party in default cannot complain if he fails to take appropriate steps to protect his own interest.

15. The Northern Ireland Court of Appeal made it clear in the case of Magill –v- The Ulster Independent Clinic and Others (2010) NICA 33 that the “application of legal principles poses a duty on the court to examine cases objectively without fear or favour to any party, represented or unrepresented. While courts are conscious of the difficulties faced by a personal litigant representing herself and will strive to enable that person to present her case as well as they can, the dictates of objective fairness and justice preclude the court from in any way distorting the rules or the requirements of due process because one party is unrepresented.”

Conclusion

16. The Unless Order which was dated and issued to the claimant on 21 October 2010 contained two options. The first option was for the claimant to confirm, in writing to the Secretary to the Tribunals and the respondents’ solicitor, by 9 November 2010, that she agreed the list of factual issues which the respondents’ solicitor had sent to her on 21 April 2010 for her consideration. The President was satisfied that the claimant did not comply with that option.

17. The second option was for the claimant to send the Secretary to the Tribunals and the respondents’ solicitor an amended list of the factual issues which the respondents’ solicitor had sent her for consideration on 21 April 2010. Arising out of that second option, the issues to be determined were:-

(i) whether the list of issues which the claimant e-mailed to the tribunal on 11 November 2010, outside the original time of 9 November 2010 and the extended time limit of 10 November 2010, constituted an amendment of the list of issues provided to her by the respondents’ solicitor on 21 April 2010; and

(ii) if so, whether the claimant’s correspondence could be construed as an application for relief against the sanction of strike out; and

(iii) if not, whether exceptional reasons existed which would make it appropriate for the President to grant relief against strike out on her own initiative.

18. Had the President been satisfied that the list of issues, e-mailed by the claimant on 11 November 2010, constituted an amended list of the issues which the respondents’ solicitor had sent her for consideration on 21 April 2010, then the President may have been prepared to consider the claimant’s correspondence as an application for relief against the sanction of strike out for late compliance.

19. However, having considered:

(i) and compared the list of issues provided by the claimant on 11 November 2010 with the list of issues which the respondents’ solicitor sent the claimant for her consideration on 21 April 2010;

(ii) and compared the complaints made in the previous case, reference number 07/08 (as set out in the document provided to the tribunal by the claimant) with the complaints in the current claim;

(iii) the correspondence of the claimant; and

(iv) Mr Sefton’s submissions;

the President was not satisfied that the factual issues provided by the claimant on 11 November 2010 could be construed as an amended list of the factual issues which the respondents’ solicitor sent the claimant for her consideration on 21 April 2010. It was clear from the claimant’s e-mail of 11 November 2010 that the 58 factual issues related to the claimant’s previous claim, case reference number 07/08; not the claimant’s current claim. The fact that (on Mr Sefton’s submission) two of the 58 factual issues may relate to the current claim does not constitute full compliance with the second limb of the Unless Order.

20. The President therefore concluded that the claimant had failed to comply with the Unless Order and her claim is therefore struck out.

Costs

21. Mr Sefton made an application for a Costs Order to be made against the claimant in respect of the costs incurred by the respondent in respect of:-

(a) the Case Management Discussion which took place on 2 August 2010;

(b) the Pre Hearing Review which took place on 24 September 2010;

(d) defending the claim;

under Rules 38 and 40 of the Industrial Tribunals Rules of Procedure 2005 on the ground that the claimant has acted vexatiously, in that her claim was without foundation, and unreasonably, as evidenced by:

(i) the claimant’s attitude towards the case;

(ii) the claimant’s refusal to engage with the tribunal;

(iii) the claimant’s refusal to attend Hearings;

(iv) the claimant’s assertion that she has no confidence in the tribunal; and

(v) the claimant’s failure to comply with the Unless Order.

22. Mr Sefton also submitted that the respondents have been put to the expense of attending the above Hearings and defending the claim. Although the claimant was notified that the respondents’ application for costs would be determined at this Hearing, on 12 November 2010, she elected not to attend to provide information about her ability to pay and her letter of 22 September 2010 clearly relates to the costs application in her earlier case, case reference number 07/08.

The Statutory Provisions

23. Rule 38 provides:-

General powers to make costs orders

“38.—(1) Subject to paragraph (2) and in the circumstances listed in rules 39, 40 and 47 a tribunal or chairman may make an order (“a costs order”) that –

(a) a party (“the paying party”) make a payment in respect of the costs incurred by another party (“the receiving party”);

(b) the paying party pay to the Department, in whole or in part, any allowances paid by the Department to any person for the purposes of, or in connection with, that person’s attendance at the tribunal.

(2) A costs order may be made under rules 39, 40 and 47 only where the receiving party has been legally represented at the hearing under rule 26 or, in proceedings which are determined without such hearing, if the receiving party is legally represented when the proceedings are determined. If the receiving party has not been so legally represented a tribunal or chairman may make a preparation time order (subject to rules 42 to 45). (See rule 46 on the restriction on making a costs order and a preparation time order in the same proceedings.)

(3) For the purposes of these Rules “costs” shall mean fees, charges or disbursements incurred by or on behalf of a party in relation to the proceedings.

(4) A costs order may be made against or in favour of a respondent who has not had a response accepted in the proceedings in relation to the conduct of any part which he has taken in the proceedings.

(5) In these Rules “legally represented” means having the assistance of a person (including where that person is the receiving party’s employee) who –

(a) has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990(19);

(b) is an advocate or solicitor in Scotland; or

(c) is a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.

(6) Any costs order made under rules 39, 40 or 47 shall be payable by the paying party and not his representative.

(7) A party may apply for a costs order to be made at any time during the proceedings. An application may be made at the end of a hearing, or in writing to the Office of the Tribunals. An application for costs which is received by the Office of the Tribunals later than 28 days from the issuing of the decision determining the claim shall not be accepted or considered by a tribunal or chairman unless it or he considers that it is in the interests of justice to do so.

(8) In paragraph (7), the date of issuing of the decision determining the claim shall be either –

(a) the date of the hearing under rule 26 if the decision was issued orally; or

(b) if the decision was reserved, the date on which the written decision was sent to the parties.

(9) No costs order shall be made unless the Secretary has sent notice to the party against whom the order may be made giving him the opportunity to give reasons why the order should not be made. This paragraph shall not be taken to require the Secretary to send notice to that party if the party has been given an opportunity to give reasons orally to the chairman or tribunal as to why the order should not be made.

(10) Where a tribunal or chairman makes a costs order it or he shall provide written reasons for doing so if a request for written reasons is made within 14 days of the date of the costs order. The Secretary shall send a copy of the written reasons to all parties to the proceedings.

Rule 40 provides:-

When a costs order may be made

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.

(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.

(4) A tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction.

Rule 41 provides:-

The amount of a costs order

41.—(1) The amount of a costs order against the paying party shall be determined in any of the following ways –

(a) the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000;

(b) the parties may agree on a sum to be paid by the paying party to the receiving party and if they do so the costs order shall be for the sum so agreed;

(c) the tribunal may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be paid being determined by way of detailed assessment in a county court in accordance with such of the scales prescribed by county court rules for proceedings in the county court as shall be directed by the order.

(2) The tribunal or chairman may have regard to the paying party’s ability to pay when considering whether it or he shall make a costs order or how much that order should be.

(3) For the avoidance of doubt, the amount of a costs order made under paragraph (1)(b) or (c) may exceed £10,000.

The Secretary to the Tribunals forwarded these Rules to the claimant on 16 September 2010, following a request from her on that same date.

The Legal Principles

24. In the case of Lodwick –v- London Borough of Southwark (2004) IRLR 554, the Court of Appeal of England and Wales stated that:-

“Costs are rarely awarded in proceedings before an employment tribunal – costs remain exceptional (Gee –v- Shell United Kingdom Ltd (2003) IRLR 82) and the aim is compensation of the party which has incurred expense in winning the case, not punishment of the losing party.”

25. That decision must be read with the decision of the Court of Appeal in Northern Ireland in the case of James Robert Peifer –v- Castlederg High School and Western Education & Library Board in which the Court of Appeal in Northern Ireland stated (Girvan LJ) that:-

“Tribunals should be encouraged to use their increased powers set out in Regulations 38 et seq of the Rules of Procedure to penalise time wasting or the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents.”

Although the Court of Appeal was dealing with conduct during the full Hearing, the President considers that that statement is relevant to the overall conduct of proceedings.

26. Rule 40 gives tribunals the discretion to make costs orders in certain circumstances and involves a two stage process:-

(1) the tribunal must determine whether, in its opinion, the paying party has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing and/or in the conduct of the proceedings; and

(2) if so, whether the tribunal should exercise its discretion to award costs.

27. The Court of Appeal in the case of McPherson –v- BNP Paribas (2004) ICR1398 made it clear that where the tribunal determines that a party has acted unreasonably, the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of its discretion to award costs. That does not mean that the party seeking costs has to prove that specific unreasonable conduct by the paying party caused particular costs to be incurred.

28. With regard to Rule 41(2), the Employment Appeal Tribunal stated in the case of Jilley –v- Birmingham and Solihull Mental Health NHS Trust (UK EAT/0584/06/DA), that the tribunal has no absolute duty to take the ability of a party to pay costs into account. While “in many cases it will be desirable to take means into account before making an order; ability to pay may affect the exercise of an overall discretion, and this course will encourage finality and may avoid lengthy enforcement proceedings. But there may be cases where for good reason ability to pay should not be taken into account; for example, if a paying party has not attended or has given unsatisfactory evidence about means.”

Conclusion

29. Having considered all the documents in the case, including those e-mailed by the claimant together with Mr Sefton’s submissions, the relevant statutory provisions and legal principles, the President concluded (as set out at paragraph 42 of the decision issued to the parties on 21 October 2010 following the Pre Hearing Review held on 24 September 2010) that the claimant had failed to take reasonable steps to progress her case to Hearing and that the manner in which she had behaved, as set out in the decision, showed a disrespect and/or contempt for the tribunal and its procedures. The President is also satisfied, having considered all the documents which were forwarded to the tribunal by the parties, together with the submissions of Mr Sefton, the statutory provisions and legal principles, as set out above, that the claimant has behaved unreasonably in bringing and in the conduct of these proceedings in the following ways.

(1) When the respondents’ solicitor sent the claimant a list of issues for her consideration on 21 April 2010, following the President’s direction of 7 April 2010 that the parties were to liaise and agree a list of legal and factual issues to be determined at the Hearing, the claimant did not engage in a meaningful way with the respondents’ solicitor. On the contrary, the claimant made it clear in her correspondence of 10 May 2010 that she did not want the tribunal to hear and determine the present claim. Instead she wanted it to be heard and determined by the Court of Appeal with the appeal in the previous claim, case reference number 07/08.

(2) Had the claimant engaged with the respondent with regard to the President’s direction of 7 April 2010, referred to above, in a meaningful way in relation to the issues, the Case Management Discussion which took place on 2 August 2010 would not have been required. It was specifically arranged because of the claimant’s unreasonable failure to engage with the respondents’ solicitor. However, the issues could not be finalised and the case progressed to Hearing at that Case Management Discussion because the claimant failed to attend.

(3) Had the claimant attended the Case Management Discussion on 2 August 2010, the Pre Hearing Review which took place on 24 September 2010 may not have been required. Although the claimant e-mailed a number of documents to the tribunal on the day before the Pre Hearing Review, she failed to attend the Pre Hearing Review. This was so notwithstanding that she had been informed that the President, having considered the documents e-mailed by her, was unclear as to their purpose and had directed that it would be important for her to attend.

(4) Although it had been made clear to the claimant that legal aid is not available in industrial tribunals, the claimant nevertheless made it clear that she would not attend until legal aid had been granted and she had legal representation. She also made it clear that once legal aid was granted she hoped to have this claim heard by the Court of Appeal and not the tribunal.

(5) The claimant also made it clear that, although she considered that the President had not “treated her badly”, she would not attend the Pre Hearing Review because she had no confidence in the tribunal system.

(6) Notwithstanding that the claimant was given one further opportunity to either agree the issues which the respondents’ solicitor had sent her or to amend those issues, the claimant failed to do so. Instead she sent issues which had been prepared for her previous claim, case reference number 07/08.

30. The President is satisfied that the effect of the claimant’s unreasonable behaviour in bringing these proceedings and in the way she has conducted them has been to put the respondents to the expense of paying for legal representation to defend the proceedings which included the increased expense of attendance at the Case Management Discussion on 2 August 2010, the Pre Hearing Review on 24 September 2010 and this Hearing. The President, having regard to the legal principles, as set out above, is therefore satisfied that she should exercise her discretion to order the claimant to make a payment in respect of the costs incurred by the respondents in this case as a result of that unreasonable behaviour. In those circumstances it is not necessary for the President to determine whether the claimant has also acted vexatiously.

31. The respondents’ solicitor sent the claimant and the tribunal a schedule of loss claiming £7,209.11 in respect of the outlay of the solicitor and £587.50 in respect of Mr Sefton for the Case Management Discussion which took place on 2 August 2010 and the Pre Hearing Review which took place on 24 September 2010 totalling £7,796.61. It was pointed out at this Hearing, that the reference to 16 March 2010 in the schedule should have been a reference to August 2010. Mr Sefton stated that his costs in respect of this Hearing were also £250 plus VAT bringing the total amount incurred by the respondents in respect of costs to £8,090.36, inclusive of VAT.

32. While the President is not required to take the claimant’s ability to pay into account in light of her failure to attend to give information with regard to her ability to pay, she considers that it is appropriate to do so. In particular the President considers that it is appropriate to take account of the fact that, although still in the employment of the first respondent, the claimant is not actually working at the present time and is not, therefore, in receipt of a wage. However that is not the end of the matter. The claimant may have other income, for example, benefits. She may also have savings and other assets. Having regard to those matters and the costs incurred by

the respondents, the President orders the claimant to pay £4,000, inclusive of VAT, towards the costs incurred by the respondents in this case.

______________________________________

Eileen McBride CBE

President

Date and place of hearing: 12 November 2010, Belfast

Date decision recorded in register and issued to parties: