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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Thomas v Belfast Health and Social Care... Mr R McConnell Dr R S Cooke Dr W J Gray Dr Tony Stevens Belfast Health and Social Care... Mr R McConnell Dr R S Cooke Dr W J Gray Dr Tony Stevens Belfast Health and Social Care... Mr R McConnell Dr R S Cooke Dr W J Gray Dr Tony Stevens Belfast Health and Social Care... Mr R McConnell Dr R S Cooke Dr W J Gray Dr Tony Stevens [2011] NIIT 00276_10IT (09 November 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00276_10IT.html
Cite as: [2011] NIIT 00276_10IT, [2011] NIIT 276_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 6739/09
276/10
1375/10
2322/10
CLAIMANT: Doctor Philip Thomas
RESPONDENTS: 1. Belfast Health and Social Care Trust
2. Mr R McConnell
3. Dr R S Cooke
4. Dr W J Gray
5. Dr Tony Stevens
DECISION ON COSTS
The unanimous decision of the tribunal is that the claimant is ordered to pay costs to the respondents in the sum of £5,400.00.
Constitution of Tribunal:
Chairman: Mr P Kinney
Members: Mr B McGuire
Mr R Hanna
Appearances:
The claimant was represented by Mr Doherty, Barrister-at-Law, instructed by Hunt & Company, Solicitors.
The first-named respondent was represented by Mr Hamill, Barrister-at-Law, instructed by the Directorate of Legal Services.
1. The tribunal issued a decision in this matter on 2 August 2011. The tribunal determined that the claimant’s claims of direct race discrimination and victimisation were dismissed. The first-named respondent now seeks costs under Rule 40(2) and (3) of the Industrial Tribunals Rules of Procedure 2005. The relevant provisions relating to Costs Orders are found in Rules 40 and 41 which state as follows:-
“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.
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.”
Submissions
2. Mr Hamill submitted that the first-named respondent wrote to the claimant on 22 March 2011 setting out the first-named respondent’s position regarding costs. In that letter the first-named respondent called on the claimant to withdraw his proceedings. It advised the claimant that if the claims were withdrawn the first-named respondent would not seek costs; but should the claims proceed they would seek costs in respect of the first-named respondent’s defence of the claims. The case proceeded to hearing on 9 May 2011 and concluded on 17 May 2011. A decision issued from the tribunal and on 30 August 2011 the first-named respondent made application for their costs. The application is confined to costs which were incurred after 22 March 2011 which the first-named respondent has quantified in the sum of £15,769.30. However, Mr Hamill informed the tribunal that the first-named respondent wished to limit their claim to sum of £10,000.00 under Rule 41(1)(a).
3. Mr Hamill contended that the costs were sought on two grounds, namely:-
(a) that the bringing of proceedings by the claimant is misconceived; and
(b) that the conduct of the proceedings by the claimant was unreasonable.
Mr Hamill reminded the tribunal that the claimant’s case was made on the basis of a large conspiracy against him. The tribunal found this to be ‘inherently implausible and improbable’. For the claimant to succeed he had to satisfy the tribunal that the first-named respondent would have acted in a way to create pressure on themselves and on patients. The idea that they would do this was implausible and illustrated the fanciful nature of the case. If the claimant actually never considered that there was race discrimination against him then it made sense of some of the features of his case. In particular, it made sense of the claimant’s failure to make any complaint of race discrimination before June 2009. The tribunal’s decision noted that there were a number of occasions when the claimant could properly have raised issues of race discrimination. Mr Hamill also pointed to the credibility of the claimant which was reflected in the tribunal’s decision. Not only was there no allegation of discrimination made until June 2009, but the manner of the claimant’s evidence was also commented on by the tribunal. Mr Hamill pointed to certain events such as the claimant’s appraisal in March 2009 where he claimed that he enjoyed a good relationship with his colleagues. Mr Hamill also pointed out that even if the claimant believed in his claim of race discrimination, he had the benefit of legal advice until a late stage in proceedings and after the costs letter had been sent by the first-named respondent. Mr Hamill submitted that had the claimant taken reasonable steps to investigate his case, he would have realised that it had no prospect of success; let alone little prospect of success. Mr Hamill contended the claimant’s case was misconceived. The claimant’s case was based solely on his evidence and his perception of events. Mr Hamill accepted that an application for costs is more difficult in cases of discrimination; but contended that the tribunal must analyse the matter in a case-by-case basis and look at the facts of each case. Mr Hamill submitted there were too many things wrong with this case. The tribunal considered all the evidence and looked at all the issues in reaching its conclusion on liability.
4. Mr Doherty, in his submissions, accepted that he had some difficulty in commenting on the conduct of the case as he had not been party to it. He contended, however, that the claimant’s case could not be regarded as unreasonable. He said that on his own evidence the claimant was called to a meeting in August 2008 and then received a letter in September 2008 raising concerns about his performance. Mr Doherty contended that this criticism would be difficult to accept for anyone. The claimant had not previously been aware of any difficulties in his performance and indeed had called witnesses who were not challenged as to their view of his earlier performance. Mr Doherty also referred to a meeting with Mr McConnell on 13 October . This meeting caused the claimant to contact Dr Stevens, although Mr Doherty conceded and accepted that the claimant did not raise any issue of race discrimination at that meeting with Dr Stevens. Mr Doherty also referred to the incident involving Patient A where the claimant felt that he was singled out and the only one who was restricted. The claimant when he reviewed these events felt he was treated less favourably because of his race. He was influenced by ongoing issues and also by issues involving another individual of Indian origin within the Trust. Mr Doherty concentrated on the meeting between Mr McConnell and the claimant on 13 October. The panel accepted Mr McConnell’s version of that meeting, on the balance of probabilities, but this did not mean the claimant had lied. The two versions of the events were not widely different in the language but very significantly different in terms of the finding the panel made. Mr Doherty contended that if the panel had preferred the claimant’s version of events they could have found differently on the issues. Mr Doherty contended that given the claimant’s recollection of events on 13 October and his perception also of difficulties regarding another staff member of Indian origin he had legitimate concerns. It may be plain to see now that the allegations of widespread conspiracy is implausible or improbable; but that was not clear to the claimant at the outset of the case. The claimant raised issues of subconscious discrimination in his submissions and explored issues beyond an outright conspiracy. Mr Doherty said that the claimant’s purpose was not to harass the first-named respondent. If that were the case he would not have called a witness to travel from India to give evidence and he would have recalled Mr McConnell to seek to embarrass him further in relation to the errors in his evidence. It was also to the claimant’s credit that he did not maintain any case against Peter Watson despite lengthy delays in the grievance process. Mr Doherty contended that after hearing all the evidence from the witnesses the tribunal concluded the claimant did not pass the burden of proof. It was clear, however, that the panel did not just consider the claimant’s evidence but also considered evidence given from the respondents in reaching that conclusion. Mr Doherty contended that it was not possible to say the claim was misconceived from the outset. Mr Doherty said that he was not able to comment on any advice that may have been received from previous solicitors as that advice was privileged. Mr Doherty contended this case had serious implications for the claimant’s professional life and also for his health. The claimant brought the case to get at the truth. Mr Doherty contended it was not appropriate to make an order as this would have the effect of deterring claimants from bringing claims which may be difficult to prove.
5. The claimant gave evidence in relation to his ability to pay. He has a net income of between £2,700 and £3,000 per month from which he had a number of outgoings to pay. His evidence of outgoings amounted to some £2,000 per month. In addition, the claimant pays for his parents to visit him from Canada two to three times a year with an average of £2,000 - £3,000 on each visit. He confirmed that whilst it would be a hardship he could afford to pay costs of £10,000.00 and could obtain a loan if necessary.
6. The claimant provided his witness statement to the respondents on 28 March 2011 and the respondents provided their witness statements to the claimant on 22 April 2011. The claimant’s previous solicitors came off record on 21 April 2011 and the case commenced to hearing on 9 May 2011. The respondents did not consider requesting a deposit hearing under Rule 20 of the Industrial Tribunals Rules of Procedure 2005.
Tribunal’s conclusions
7. In considering an application for costs a tribunal must, first, be satisfied as to the grounds for making such an Order and then whether it is appropriate to exercise its discretion to award costs. The purpose of an award is to compensate the respondent not to punish the claimant. When making a Costs Order on the grounds of unreasonable conduct any costs awarded need not be causally linked to the costs incurred as a result of the conduct that has been identified as unreasonable. In McPherson v BNP Paribas [2004] ICR 1398, Mummery LJ stated:-
“The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring BNP Paribas to prove that specific unreasonable conduct by the applicant caused particular costs to be incurred.”
8. The question of whether or not the claimant behaved unreasonably is dependant on the facts of the individual case. There is no hard and fast principle applicable to every situation. Reasonableness is to be given its ordinary meaning. In this case, should the claimant have known or to be taken as known that proceeding with the case was unreasonable? In Cartiers Superfoods Ltd v Laws [1978] IRLR 315 the EAT considered whether the party had acted frivolously under the Rules then in force. Philips J said that to determine whether a party acted frivolously it was necessary to:-
“Look and see what that party knew or ought to have known if he gone about the matter sensibly.”
The courts have also pointed to the danger of assessing a case with hindsight. In the case of E T Marler v Robinson [1974] ICR 72 the court said:-
“Ordinary experience of life frequently teaches us that which is plain for all to see once the dust of battle subsided was far from clear to the combatants once they took up arms.”
9. The tribunal is mindful of the caution that it should exercise in examining a case with the benefit of hindsight. The tribunal is also mindful of the difficulties which face a claimant in a discrimination claim. There is rarely overt evidence of discrimination and thus it can be difficult for the claimant to know whether or not he has real prospect of success until the explanation of an employer’s conduct is heard, seen and tested.
10. Bearing these comments in mind, it is the conclusion of the tribunal that the taking of this case was not misconceived or vexatious. The tribunal accepts that at the time of presenting proceedings there were questions which the claimant could reasonably have posed and which required some further explanation from the respondents. However, it is the conclusion of the tribunal, having heard the evidence in this case, that it should have been apparent to the claimant, on receipt of the respondents’ witness statements that an objective and sensible reflection would have indicated to him that he had little reasonable prospect of success. The tribunal is satisfied that even if the claimant were not in a position to reach this conclusion on receipt of the witness statements, he should certainly have reached that conclusion by the end of his own evidence and cross-examination, clearly setting out the case of the respondents. It is the tribunal’s view that the conduct of the proceedings from that point onwards was unreasonable.
11. Having reached this conclusion, the tribunal must now consider its discretion to award costs. In considering this discretion, the tribunal has taken into account the claimant’s ability to pay; but has also taken into account the fact that the claimant represented himself during these proceedings and also that whilst the respondents took the view that there was no reasonable prospect of success in this case, they took no steps to request a deposit hearing under Rule 20 of the Rules of Procedure which had the less onerous test of ‘little reasonable prospect of success’ and which may have concentrated the claimant’s mind at an earlier stage and avoided some of the costs which were subsequently incurred by both parties.
12. In light of these matters, and bearing in mind the detailed breakdown of costs provided, the tribunal determines that the appropriate figure for an award of costs is £4,500.00 plus VAT, making a total of £5,400.00.
Chairman:
Date and place of hearing: 10 October 2011, Belfast
Date decision recorded in register and issued to parties: