Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 9240_3IT, [2010] NIIT 9240_03IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 9204/03

CLAIMANT: Daniel McAteer

RESPONDENT: Alta Systems (NI) Ltd

DECISION ON APPLICATIONS FOR COSTS

The unanimous decision of the tribunal is that £500 (inclusive of VAT) be awarded to the respondent and that no award be made to the claimant.

Constitution of Tribunal:

Chairman: Mr W Palmer

Members: Mrs V J Foster

Mr Wilkinson

Appearances:

The claimant represented himself

The Respondent was represented by Mr Colmer, Barrister-at-Law, instructed by Tughans, Solicitors.

Matters Considered

1. Both parties applied for costs. In determining these matters we have considered the written submissions made by the parties and also the respondent’s response to the claimant’s submission. The claimant did not provide a written response to the respondent’s submission. We have also considered the oral submissions made.

The Relevant Rules and their Application

2. The substantive claim was initiated in 2003. The proceedings in these applications, therefore, are ones that fall within the transitional provisions contained in Regulation 15 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) Regulations 2005 (the 2005 Regulations)

3. (1) Regulation 15 (2) of the 2005 Regulations provides:

“These Regulations and Schedules 1 and 2 (with the exception of rules 1 to 3 and 38 to 48 of Schedule 1) shall apply to proceedings-

(a) which were commenced prior to 3^rd April 2005; and

(b) to which Schedule 1 to the old Regulations applied;

provided that a copy of the originating application was not sent to the respondent prior to 3 April 2005”

(2) Regulation 2 (1) of the 2005 Regulations provides:

“old Regulations” means the Industrial Tribunals (Constitution and Rules of Procedure) (Northern Ireland) 2004” (the 2004 Regulations).

(3) Regulation 15 (4) of the 2005 Regulations, insofar as relevant, provides:

“In relation to proceedings described in paragraph (2) but where a copy of the originating application was sent to the respondent prior to 3^rd April 2005, Schedules 1 and 2 to these Regulations shall apply with the exception of rules 1 to 9, 21 to 24, 33 and 38 to 48 of Schedule 1….”

(4) Rules 38 to 48 in Schedule 1, which is the Schedule referred to immediately above, deal with costs, including preparation orders.

(5) Regulation 15 (5) (a) (v) of the 2005 Regulations provides:

“In relation to proceedings described in paragraph (4), the following provisions of the old Regulations shall continue to apply

(a) In Schedule 1-

(v) rule 14 (costs)

(6) Regulation 13 of the 2004 Regulations provides as follows;

“These Regulations shall apply in relation to all proceedings to which they relate, irrespective of when those proceedings were commenced”

(7) In our view, what the above means is that rule 14 of the Industrial Tribunals Rules of Procedure 2004 (the 2004 Rules), which are contained in Schedule 1 to the 2004 Regulations, applies in relation to the costs applications under consideration.

(8) The relevant provisions of rule 14 of the 2004 Rules are (1) (a), (3) and (6).

(9) Rule 14 (1) (a) of the 2004 Rules provides:

“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 proceeding have been misconceived, the tribunal shall consider making, and if it so decides, may make -

(a) an order containing an award against that party in respect of the costs incurred by another party;”

(10) Regulation 2 (2) of the 2004 Regulations provides that “misconceived” includes having no reasonable prospect of success.

(11) Rule 14 (3) of the 2004 Rules provides:

“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;

(b) where those parties agree on a sum to be paid by the first party to the second party in respect of those costs, an order that the first party pay to the second party a specified sum, being the sum so agreed; or

(c) in any other case, an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as assessed by way of detailed assessment (if not otherwise agreed)”.

(12) Rule 14 (6) of the 2004 Rules provides;

“Any costs required by an order under this rule to be assessed by way of detailed assessment may be so assessed in the 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 order.”

(13) Rule 14(1) (a) of the 2004 Rules sets a two stage process. We must firstly form an opinion on whether a party has, for example, acted unreasonably in conducting the proceedings, and if we form such an opinion we then have a discretion to exercise, namely, whether or not to make an order for costs: if we form the view (say) that there was no unreasonableness, then no question of discretion arises.

The Respondent’s Claim for Costs

4. Unreasonableness is the basis of the respondent’s claim. The respondent, at paragraph 6 of its submission, sets out the grounds on which it submits that the claimant acted unreasonably. The relevant part of paragraph 6 is as follows:

“The respondent alleges that the claimant acted unreasonably in the following respects:

(i) In breaching the tribunal’s Directions by failing to provide a schedule of loss, thus necessitating the convening of a Case Management Discussion on

6 September 2007;

(ii) In breaching the Tribunal’s Directions by failing to provide vouching documents, thus necessitating the convening of a Case Management Discussion on

27 September 2007

(iii) In spending an excessive amount of time in cross examining the respondent’s two witnesses, contributing to the disproportionate number of hearing days necessary to complete these proceedings (21) and thereby increasing the respondent’s legal costs

(iv) In proceeding with his case having regard to:

(a) the offer in settlement made by way of letter dated 15 October 2007, an office copy of which is attached; and

(b) the award ultimately made by the tribunal.”

5. We deal with these in sequence. The matter at (iv) is dealt with under ‘The Calderbank” offer.

The Claim re the Case Management Discussion (the CMD held on 6 September 2007)

6. The claimant was not present at the CMD, nor was he represented. He was engaged in the High Court on the day in question.

7. At paragraph numbered 2 of the Case Management Discussion Record of Proceedings it is recorded that the claimant, in a letter to the Office of the Industrial Tribunals stated that, “he was awaiting advices from the Labour Relations Agency in relation to the extent of any financial claim which he is entitled to make.” At paragraph numbered 3 the chairman stated: “I am extremely concerned that no effort has been made by the claimant to confirm the extent of the financial loss which he is claiming since the Case Management Discussion took place in June.”

8. In considering and deciding the matter we take into account the view expressed by the chairman of the CMD. It seems to us that the claimant acted unreasonably in this instance in the conduct of the proceedings and we so hold. It appears to us that the claimant had sufficient time to obtain advice on the extent of the financial claim. We have considered the discretion aspect and hold that the discretion should be exercised in the respondent’s favour. The respondent was represented by its solicitor at the hearing. We consider, in all the circumstances, that the appropriate amount to award is £250, to include VAT.

Breach of the Tribunal’s Directions and the CMD on 27 September 2007

9. This CMD actually took place on 28 September 2007 and concerns the claimant’s failure to provide details of his schedule of loss. At paragraph numbered 1 of the Record of Proceedings it is stated by the chairman, “The purpose of this hearing was to consider the respondent’s application that the claimant has failed to provide details of schedule of loss despite previous directions in this case.” This was unreasonable conduct and in the exercise of our discretion we make an award of costs. Again, the respondent was represented by its solicitor at the hearing and we award the respondent £250 to include VAT.

Excessive Time in Cross-examination

10. This refers to the substantive case. It was not a run-of–the-mill case. It was one where, between them, the respondent’s two witnesses gave evidence in respect of 12 matters pertaining to the reasons for the claimant’s dismissal. Some of the accusations made were of a serious nature, for example, the allegation with regard to UCF funding.

11. There is no doubt that the cross-examination of the respondent’s witnesses was prolonged and we think that some time was wasted. However, when we consider the fact that the claimant was a lay-person representing himself and the seriousness of some of the 12 matters with which he had to deal, we do not consider that his conduct in cross-examining the witness was such that it falls within rule 14 (1)(a) of the 2004 Rules. With regard to the claimant’s status as a lay-person, we have had regard to the statement in Gee v Shell UK Ltd [2003] IRLR 83, namely, “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be assessable to ordinary people without the need for lawyers,…..”

The “Calderbank” Offer

12. A “Calderbank offer” is a reference to the type of offer made in an ancillary proceedings case, namely, Calderbank v Calderbank [1975] 3 ALL E R 333, a Court of Appeal (England and Wales) decision, which we shall refer to as “Calderbank”. On the first day of the hearing of the substantive case, the respondent handed to the claimant a letter marked “Strictly without prejudice save as to costs” containing an offer to settle the case and seeking a discharge in respect of the substantive case and also in respect of unspecified matters. The claimant wrote back almost immediately declining the offer and putting forward settlement proposals of his own. We shall refer to the respondent’s letter as “the Calderbank letter” and, where the context permits, simply as “the letter”. We shall refer to the claimant’s reply as “the reply”.

13. In Kopel v Safeway Stores PLC [2003] IRLR 753 (an Employment Appeal Tribunal case) Mitting J set out, at paragraph 15, the principle in Calderbank as follows;

“There is no question of any rule in Calderbank v Calderbank applying to proceedings before the employment tribunal. The principle in Calderbank is that a party to matrimonial proceedings against whom a money claim is made can protect his position as to costs by making an offer of settlement marked without prejudice save as to costs. The offer may not be referred to during the main hearing but may be once judgment is given: if the order made is less favourable than the offer, the court may take the offer into account when considering what if any order for costs to make.”

And at paragraph 16, His Lordship added:

“There is no doubt, however, that an offer of the Calderbank type is a factor which the employment tribunal can take into account under rule 14.”

14. We are, therefore, permitted to take account of a Calderbank type letter in determining whether to make an award of costs under rule 14 (1) of the 2004 Rules.

15. As previously stated, the respondent’s case is that the claimant acted unreasonably, within rule 14 (1) of the 2004 Rules (see paragraph numbered 4 above). The respondent submits that the claimant’s refusal to accept the offer contained in the Calderbank letter was “unreasonable” within that rule.

16. In the Calderbank letter an offer of £13,000 was made. The claimant was awarded £1,306 by the tribunal. It is, therefore, clear that he was awarded considerably less than the offer contained in the Calderbank letter. However, the offer was made “in full and final settlement of the above-entitled proceedings [the proceedings pending before the tribunal] and of all and any claims which you may have rising out of and in connection with your relationship with the respondent and its officers and employees.” (Emphasis added)

17. The chairman requested the Office of the Industrial Tribunals to write to the parties seeking submissions on whether, in light of the emphasised part of the letter as set out above ,”the letter should be considered a “Calderbank” type one and, therefore, a factor that the panel may take into account.” The claimant did not consider himself qualified to make, “detailed legal submissions” and stated, “I therefore turn to the Tribunal for guidance in this regard”. At the costs hearing Calderbank was explained to him. The respondent made a number of written submissions. These were:

(a) that, in writing the letter, the respondent wished to bring the litigation pending to an end as quickly as possible:

(b) that the offer was a genuine attempt to settle the matter pending, particularly as the claimant had failed to provide documentation in support of his financial loss:

(d) the respondent’s understanding is that it is usual to include the emphasised words in a “Calderbank” type letter:

(e) no further claims have been received from the claimant:

(f) that the reference to “all and any claims” did not detract, either objectively or subjectively, from the clarity of the offer:

(g) that, included in the offer, were conditions including one that stated,”You shall procure the withdrawal of this Application to the Industrial Tribunals upon receipt of the payment referred to above”: and

(h) in relation to the breadth of the offer (the part emphasised above), “At the time the offer was made, the respondent had no knowledge of any facts which could result in a further claim by the claimant but was unable to ascertain whether the claimant was contemplating further claims. If any claims were being contemplated by the claimant, this was clearly within his knowledge and therefore when considering whether to accept the offer, he would have been in a position to decide whether to accept the sum offered in settlement of such claims. It is noticeable that the offer was made more than four years after the employment relationship between claimant and respondent ended, giving ample time for the claimant to decide whether there were any further matters occurring during his relationship with the respondent to which he wished to litigate.”

18. An issue in Calderbank was in relation to ancillary proceedings brought by both parties. The husband was awarded a lump sum of £10,000, which was upheld by the Court of Appeal. The matter of costs was also considered and this is the matter that we concentrate upon in this part of the decision. The wife had made a without prejudice offer, in writing, to settle the claim. The amount offered, which was greater than the amount eventually awarded, was not accepted by the husband. Part of the costs were awarded to the wife on the basis of the without prejudice offer. During the course of his judgement, Cairns LJ referred to the proceedings before the court and also to other proceedings where protection against costs might be availed of, at that time. At page 342, he stated:

“Counsel for the wife then indicated the difficulty that a party might be in in proceedings.

There are various other types of proceedings well known to the court where protection has been able to be afforded to a party who wants to make a compromise of that kind and where payment in is not an appropriate method. One is in proceedings before the Lands Tribunal where the amount of compensation is in issue and where the method that is adopted is that of a sealed offer which is not made without prejudice but which remains concealed from the tribunal until the decision on the substantive issue has been made and the offer is then opened when the discussion as to costs takes place. Another example is in the Admiralty Court where there is commonly a dispute between the owners of two vessels that have been in collision as to the apportionment of blame between them. It is common practice for an offer to be made by one party to another of a certain apportionment. If that is not accepted no reference is made to that offer in the course of the hearing until it comes to costs, and then if the court’s apportionment is as favourable to the party who made the offer as to what was offered, or more favourable to him, then costs will be awarded just on the same basis as if there had been a payment in.

I see no reason why some similar practice should not be adopted in relation to such matrimonial proceedings in relation to finances as we have been concerned with.”

19. It appears to us that, in the three types of proceedings referred to by Cairns LJ (matrimonial, Lands Tribunal and Admiralty), the offers related to the subject matters of the proceedings pending before the court or tribunal concerned and not also to extraneous matters, by which we mean matters extant elsewhere or which might or could be the subject of litigation or a claim in the future.

20. The claimant replied to the Calderbank letter, on the day that he received it. The reply, which was marked “Strictly Without Prejudice Save As To Costs”, was a rejection and set out what the claimant would accept. It took the form of a counter-offer. The claimant set out, what he referred to as the three areas upon which his claim was “grounded”. These were arrears of salary (£18,113), compensation for unfair dismissal, compensation for loss of office (this refers to the loss of office as a director of the respondent, a matter outside the jurisdiction of this tribunal), a payment of £6,000 towards legal costs incurred when he had been represented by a solicitor and reimbursement of his outlays in respect of travel and photocopying. With regard to compensation in respect of unfair dismissal he was prepared to accept 50% (£25,000) of what he considered was due under this head. The reason for this is set out in the reply where, in relation to this aspect, the claimant wrote, “Maximum Due: £1,000 per month from August 2003 until the present day [15 October 2007]. I will accept 50% of this on the basis that my ability to earn an income has been destroyed by the Respondent’s solicitors and not the Respondents, in another matter in JJ Mullen Limited”. At that point, therefore, he was saying, it seems to us, that another party, in another matter, was responsible for at least a significant amount of the sum claimed in respect of the compensatory award and, in view of that, he would accept, from the respondent, 50% of the alleged loss. This was unrealistic.

21. The total amount being sought by the claimant in the reply was in the region of £49,000, which was also unrealistic. There is no mention in the reply of any objection to the width of the contractual discharge that would be given by the claimant, had he agreed to the respondent’s proposals

22. In deciding this aspect of the application we are considering whether, in all the circumstances, the claimant, in refusing the offer contained in the letter, acted unreasonably within the meaning of rule 14

23. We are troubled by the breadth of the contractual discharge that the claimant would have been required to give had he settled the case on the basis of the letter. Had the letter referred solely to the proceedings before the tribunal, we would have had little hesitation in making an award of costs in the respondent’s favour. But considering the wide discharge required, and although this is not referred to in the reply, it is a matter that we consider that we cannot ignore.

24. It might very well be, as the respondent points out, that “it is usual to include the emphasised words in a “Calderbank” type letter”. Also, the “Calderbank” letter might very well have been a genuine attempt to settle the pending proceedings: however, we see it as more than that. The letter went much further than dealing with the proceedings before the tribunal. On the wording, it appears to us, not only to cover the pending proceedings, but also to sweep up any matters that could be outstanding or which might come to the claimant’s attention at a later date (whether it would do so successfully, had the offer been accepted, we do not know). The letter could also be read as covering (again whether successfully or not we do not know) the respondent’s “officers and employees”. We think that the contractual discharge sought was too wide.

25. Taking all matters into account, including the respondent’s submissions, the reference in the reply to the loss of office (which appears to us to have been on the claimant’s mind) and giving some weight to what we have said on extraneous matters where we refer to the three types of proceedings referred to by Cairns LJ, we do not think that a claimant receiving the Calderbank letter would, given the discharge required, be acting unreasonably in rejecting the offer that it contained. We, therefore, consider that the claimant did not act unreasonably in rejecting the offer. We refuse the respondent’s application for costs in respect of this part of the claim.

The Claimant’s Claim

26. Before embarking on a consideration of the claimant’s claim we think that we should deal specifically with the Human Rights argument put forward by the claimant. He argued, on the basis of Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms (the peaceful enjoyment of possessions), Joyce v Sengupta [1993] ALL ER 897, subparagraphs (a) and (b) of paragraph 11 of the SLS publication entitled “The Human Rights Act 1998 and the European Convention-Central Themes and Principles” and the general principle contained in the 2004 Regulations and in the 2005 Regulations, namely, that the overriding objective of the relevant rule on costs is to enable tribunals to deal with costs justly, and, therefore, we should read the relevant rule in such a way that he be awarded costs in his particular circumstances. As the claimant saw the position, he had suffered damage to his reputation as a result of the dismissal and that Article 1 of the First Protocol includes protection of intangible assets such as reputation, goodwill and professional standing (the claimant is an accountant). We understand the argument to be that, in the circumstances, we should interpret the relevant rule in such a way that would enable us to award him costs, including, for example, opportunity costs (the amount that he would have earned during the course of the substantive hearing). We have considered the matter and have concluded that the relevant rule, namely, rule 14 of the 2004 Rules, is clear and that we shall apply it as drafted.

27. We remind ourselves of the provisions of rule 14 (1) (a) of the 2004 rules and our approach to that rule (as previously set out).

28. In the Executive Summary contained in his written submission, the claimant sets out as follows:

“The applicant claims full costs for both the preliminary hearing (for which a decision was given on 12 February 2007) and the substantive hearing (for which a decision was given on 01 December 2008). The costs applied for include the following [he then sets out the matters in respect of which he claims]:”

29. In a further summary the claimant sets out the 2 aspects with regard to the preliminary hearing. In this he summarises his claim to be in respect of the preliminary hearing itself and connected interlocutory proceedings. The summary states as follows:

“The Application for a hearing on the preliminary point came from a request made by the respondent’s solicitors on the basis that their very case was that the applicant was not an employee. It was found that the applicant was an employee and therefore the applicant respectfully submits that he is entitled to the costs of this aspect of the Hearing. In Addition, the applicant claims that significant delay was caused by the Respondent by their failure to reply to a Notice of (sic) Further and Better Particulars and their failure to provide discovery which made it necessary for the Applicant to make a number of applications to the Tribunal in relation to these matters.”

30. In determining these issues, we remind ourselves that industrial tribunals costs do not follow the event. Costs are governed by rules which, in this instance, are the provisions of rule 14 of the 2004 Rules.

The Preliminary Point

31. We have considered Mr Cross’ decision on the preliminary point matter (whether the claimant was an employee of the respondent) and, it appears to us, that the respondent had an arguable case to make and present and could not be faulted in seeking to have the point determined by way of preliminary hearing. Mr Cross, at paragraph numbered 15 of his decision, thought that the situation was, “some ways complicated by the fact that the applicant had three separate relationships with the respondent.” It appears to us, and we so hold, that the proceedings were not misconceived: nor, it appears to us, were they such as to as to fall foul of any other provision of rule 14 (1) of the 2004 Rules and we also so hold.

Interlocutory Matters

32. In his submission he summarises this part of his claim as follows:

“In addition, the applicant claims that significant delay was caused by the respondent by their failure to reply to a Notice for Further and Better Particulars and by their failure to provide discovery which made it necessary for the applicant to make a number of applications to the tribunal in relation to these matters.”

33. In the body of his submission, in relation to the Notice for Further and Better Particulars and the discovery, the claimant sets out the following:

“By way of letter dated 19 April 2004, I was advised that the respondent had failed to provide Replies to the Notice for Further and Better Particulars. On 29 July 2004, an Order was given by the Office of Industrial Tribunals for further particulars. (See attached Order at Appendix 3).

King & Gowdy [a firm of solicitors acting for the claimant at the time] were continually deprived of key discoverable documents by the Respondent and a case management discussion took place on 7 December 2005 at which an Order was made that the respondent should provide the discovery that the applicant had been seeking. The applicant had now been representing himself. (See copy Order at Appendix 4). By way of letter dated 20 December 2005 to the Office of Industrial Tribunals, the applicant applied for costs in relation to the Order for Discovery. (See letter enclosed at Appendix 5).

On 2 February 2006, the applicant applied to have the respondent’s case struck out for non-compliance of an order. (See letter enclosed at Appendix 6).

On 28 April 2006 a Hearing took place and an Order was made that the respondent produce additional discovery.

On 11 July 2006, the applicant sent a letter to the Office of Industrial Tribunals setting out the delay by the respondent in providing discovery.”

34. The respondent’s written response to this aspect was as follows;

“3. As regards the delay on the part of the respondent in furnishing replies and discovery in the context of the preliminary hearing, the respondent makes the following points:

(i) Part of this delay was due to illness on the part of the solicitor who had carriage of this case on behalf of the respondent;

(ii) After the original disclosure Mr McAteer repeatedly demanded documents which he claimed “must exist”. These claims resulted in several re-examinations of the company files to no effect.

(iii) Mr McAteer has also demanded information to which he was not entitled i.e. working papers belonging to the company accountants. Determining the privileged status of such documents required communicating with the Directors (See first paragraph), our legal advisors and our accountants. This took time.

(iv) Professor McBride lives in England and travels to NI on average on a fortnightly basis, while Mr McLaughlin has interests in several other businesses which require him to travel extensively within the UK. As the company files are held in Belfast, it was difficult on occasion[s] for the directors to examine the flies and take legal advice within the stated deadline.

(v) The company supplied an Affidavit to the tribunal in August 2006 confirming that it provided all information requested.

(vi) By way of contrast, the company and its legal advisors are still waiting for
Mr McAteer to provide his tax returns for some of the years involved and a schedule of loss which was not provided with his witness statement nor by an extended deadline of 24 September 2007.”

35. The issue before us relates to the alleged conduct of the respondent in relation to replies and discovery and we consider that, in order to determine that issue,
Mr McAteer’s alleged conduct in another matter is not relevant, in this instance. In our considerations we, therefore, do not take account of (vi) above.

36. We accept that the situation was as stated in (i) to (v). We accept that the solicitor’s illness contributed to some extent to the delay, but we attach little weight to that as we consider that a solicitor from the practice would (or should) have had carriage of the case after a short period.

37. It is clear to us that quite an amount of work and effort had to go into dealing with the matters and we give some weight to the difficulties that businesspeople, like Professor McBride and Mr McLaughlin, are faced with in running businesses. We also appreciate that sometimes difficulties can arise in determining the status of documents in discovery and that consultations, with various people, are sometimes necessary. On considering all the matters except (vi) above, we conclude that the respondent’s behaviour was not such to fall within rule 14.

The Substantive Hearing

38. In his submission the claimant summarises his claim for costs as follows;

“The applicant’s case was that he was unfairly dismissed. Therefore the applicant is entitled to his costs of this action. The hearing took a number of days to complete but the applicant respectfully submits that the delay was caused by the respondent and in particular in the manner in which they sought to run the case, their delay in providing discoverable documents and their introduction of critical new material on the third day of the Hearing. In addition, the respondent and its advisors completely ignored the veil of incorporation and ran the case as though it were simply a matter between the applicant and the respondent’s two witnesses which quite clearly it was not either in law or in fact. The applicant suffered a huge loss in having to run the action and justice requires that he be adequately compensated as a result.”

39. In the body of his submission the claimant states, with regard to the documents referred to in the summary;

“One of the main causes for the delay was the fact that the respondent had introduced documents in relation to the Qubis point [This point related to the allegation that the claimant had told Qubis that certain monies that might have been made available to the respondent would not be required]. The applicant respectfully says that a lot of time was consumed at the hearing because the Respondent’s witnesses had for the first time introduced new material and tried to prove that a reason existed at the time of the Applicant’s dismissal.”

40. There are three matters to point out with regard to the summary above.

(1) Simply because the claimant succeeded in his claim does not mean that costs follow. In order to award costs, we repeat that we must be satisfied, under rule 14 of the 2004 Rules, that, for example, the respondent or its representative in conducting the proceeding acted unreasonably and also that it would be appropriate, in the circumstances, to exercise our discretion in the claimant’s favour.

(2) The documents referred to belonged to a third party and, during the course of the hearing, they were made available to the respondent. The respondent properly and promptly provided them to the claimant, who used them to cross-examine.

(3) With regard to the veil of incorporation, the respondent, being a limited liability company, could not give evidence itself. The evidence, on behalf of the respondent, was given by the two directors who were involved in the decision to dismiss the claimant.

41. The respondent’s written response to the claimant’s claim for costs with regard to the substantive hearing is set out below. We have dealt with (i) below earlier in relation to the Calderbank offer and we do not take it into account in deciding this issue.

“As regards the alleged cost to the claimant in having to run the substantive hearing over a long number of days, the respondent makes the following points:

(i) If the claimant had accepted the offer made by the respondent a hearing would not have been necessary at all;

(ii) It is notable that the claimant cross-examined the respondent’s witnesses over a period of circa 10 days, whilst the claimant was cross-examined for circa 2 days;

(iii) Circa 2 days were spent addressing the claimant’s applications on the one hand, to call forensic evidence, and, on the other hand, to strike out the respondent’s case;

(iv) The respondent did not introduce new documents to the tribunal. At an early stage in the hearing, one of the respondent’s witnesses brought to the attention of the respondent’s advisors that he had received documents which might be relevant to the case. The matter was brought to the attention of the tribunal and thereby the claimant. The respondent, through its representative, told the tribunal that it did not intend to introduce these documents into evidence. However, the claimant cross-examined the respondent’s witnesses from these documents. They were thus introduced in evidence by the claimant.

42. We have considered the matter carefully and we do not think, and we so hold, that either the respondent or its representative acted in a way that would bring their conduct of the substantive hearing within the provisions of rule 14 (1) (a) of rule 14 of the 2004 Rules. The claimant’s application in respect of this claim is, therefore, refused.

Chairman

Date and place of hearing: 21 April 2010, Belfast.

Date decision recorded in register and issued to parties: