Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS 

 

CASE REF:    400/09

 

CLAIMANT:                      Paul O’Hagan

 

RESPONDENT:                Norbrook Laboratories Ltd

 

 

DECISION  (COSTS)

 

This decision is supplementary to the main decision of the tribunal promulgated on 4 February 2011.  Unanimously the tribunal finds that the respondent’s application for costs is well-founded and it orders that the claimant shall pay to the respondent the sum of £9,000.00 in respect of its legal costs.

 

 

Constitution of Tribunal:

 

Chairman:                        Ms W A Crooke

 

Members:                        Ms T Madden

                                        Mr E Hesketh

 

 

Appearances:

 

The claimant appeared in person and represented himself.

 

The respondent was represented by Mr Jacques Algazy, Barrister-at-Law, instructed by Mr Gervase McGenity of the respondent’s In-house Legal Department.

 

1.       This decision is supplemental to the decision of the tribunal dated 4 February 2011.  Certain submissions were made on behalf of the respondent and the claimant replied to them in the substantive hearing, but the tribunal considered that it required further submissions from the parties before reaching a decision on the issue of costs.

 

 

THE LAW ON LIABILITY FOR COSTS AND OUR CONCLUSIONS

 

2.       Rule 38 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Rules”) empowers the tribunal to make a Costs Order.  According to Rule 38(1) a Costs Order may be made in any of the circumstances listed in Rule 40.  The circumstances listed in Rule 40 include the following:-

 

                    “… 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.”

3.       The term “misconceived” includes having no reasonable prospect of success.

 

4.       The power to make a costs order is compensatory and not punitive.  That is to say that the purpose of such an order is to compensate the person who is being awarded the costs and not to punish the paying party.

 

5.       Mr Algazy made the application for costs under both headings in Rule 40, ie, that the claimant had been misconceived in bringing his proceedings in the first place and had in the conducting of the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably.

 

6.       Firstly, the tribunal intends to deal with the question of the behaviour of the claimant in bringing the proceedings.  In the case of Ratcliffe Deus and Gammer  v  Binns (EAT/100/08) 23 April 2008.  Elias J said that the pursuit of a hopeless case does not of itself denote improper, unreasonable or negligent conduct on the part of a legal representative.  If this is the case then the pursuit of a hopeless case by a self-representing claimant should equally (not of itself) denote improper, unreasonable or negligent conduct.  Mr Algazy placed emphasis on the fact that the claimant had been given a number of opportunities to withdraw his case without costs being claimed against him and the principal ones were as follows:-

 

6.1     By a letter dated 5 March 2010 sent by Berkeley White Solicitors (the respondent’s former legal representatives) to the claimant.  Secondly, by a letter dated 12 May 2010 from Gervase McGenity to the claimant and by an alleged meeting of 19 October 2010 of the claimant with the Labour Relations Agency officer at which the claimant was allegedly once again offered the chance to withdraw his case without any penalty on the issue of costs.

 

6.2     The claimant put forward the argument that he had not received the letter of 5 March 2010 and while he might have received the letter of 12 May 2010, it was some weeks before he took it up due to his Father’s illness, and the alleged offer via the Labour Relations Agency did not happen.  Despite cogent evidence provided on behalf of the respondent in connection with the sending of the letter of 5 March 2010 to the claimant, the claimant persisted in his view that he had not received it and that the respondent and its former Solicitors, Berkeley White, were simply lying and “fabricating evidence”.

 

          The claimant contended that he had not been misconceived in bringing his case as he had sought legal advice from the respected firm of solicitors, The Elliott Trainor Partnership, and understood that he had an arguable case.  Whilst this is of course heresay evidence of what the former solicitors for the claimant allegedly said to him, the tribunal does consider that on the face of his claim the claimant was not behaving unreasonably in bringing the proceedings as it appeared he had an arguable case.  As such, the tribunal does not believe that it can characterise the behaviour of the claimant in bringing his proceedings as misconceived.  As this is the case, the tribunal does not consider it necessary to make a finding in relation to the various offers made prior to the hearing that the respondent would forego costs if the claimant withdrew his claim, although it accepts that especially in relation to the letter of 5 March 2010, which was a very detailed “Calderbank” style of letter, the respondent provided cogent evidence that it had been sent, and all the claimant argued in response essentially was that everybody was lying.

 

7.       We now turn to considering the behaviour of the claimant in conducting the proceedings.  Unanimously, the tribunal did consider that by his behaviour in a number of respects the claimant elongated the hearing.  In reaching our decision we have had further regard to the dictum of Mr Justice Elias in Ratcliffe Deus and Gammer  v  Binns (EAT/100/08) 23 April 2008 (at paragraph 24 of that decision in which he stated “unlike the position where an ordinary Costs Order is made, where there is no need to fix the amount by reference to the additional costs actually resulting from unreasonable conduct…”).  We would have found it hard to do so.

 

          The respondent submitted strongly that the tribunal should not regard the exercise before it as being capable of resolution by applying a daily rate and assessing the number of days the case overran.

 

          The tribunal found that the claimant displayed a singular reluctance to accept its rulings in respect of the inclusion of the prior grievance and in respect of calling witnesses from the respondent company who gave evidence to that company in the course of its investigation of the claimant’s misconduct to come to the tribunal to give evidence to the tribunal.  The claimant was sent a copy of the decision of Rogan  v  South Eastern Health and Social Care Trust [2009] NICA 47 at the direction of Mr S A Crothers, the Chairman who conducted the relevant Case Management Discussion.  This decision was sent to the claimant by the respondent on 12 May 2010.  This decision was also provided to the claimant, at an early stage in the substantive hearing.

 

          The tribunal also summarised the nature and effect of the decision to the claimant a number of times throughout the hearing.  It gave the claimant time to consider the Rogan decision and how it affected him a number of times even to the extent of involving the Labour Relations Agency to support the claimant by it independently giving him advice.

 

          The tribunal also explained to the claimant that if he considered that the tribunal was wrong in restricting itself to the investigation of his misconduct, the disciplinary and appeal processes and wrong in refusing to countenance that the witnesses who had given evidence to the investigation should be called to give their evidence again before the tribunal, then it was open to him to take legal advice about taking the matter to the High Court.  The claimant was given time to consider this.  He indicated that he did not wish to go to the expense of seeking this advice.  Undoubtedly, we consider that the claimant’s repeated failures to accept these rulings and if he did not accept them, to challenge them in the appropriate court, elongated the hearing by a number of days.  The tribunal is supported in reaching this decision by the fact that the claimant in his application for review at point 3 continued to complain that none of the respondent witnesses had come forward.  He eventually withdrew this point only at the review hearing.

 

8.       We also consider that the claimant’s behaviour in making an allegation of a conspiracy being orchestrated against him in the workplace by the Chairman of the respondent right down through the various levels of management who were involved with investigating his misconduct, and carrying out the disciplinary and appeal processes, to the persons who had given evidence to the investigation simply elongated the case.  This was a fresh allegation made in the course of the hearing.  No credible evidence of this was produced to the tribunal and the tribunal considers that should also be regarded as an example of the claimant’s behaviour in considering whether the claimant has in conducting his proceedings acted vexatiously, abusively, disruptively or unreasonably.  At the very least, this behaviour was unreasonable.

 

          However, we also consider that the tribunal can draw the inference from the claimant’s admission that he said “… Norbrook’s costs are not my concern” that the claimant’s attitude to the conducting of his case and thus forcing the respondent to incur costs could be regarded as verging on the flippant.

 

9.       In response to the submissions made by Mr Algazy, the claimant contended that in conducting the proceedings he had spent much time and had not acted maliciously, wanting to clear his name for professional purposes.  He apologised for his inability to understand Employment Law issues.  He said he would not be able to afford to pay any costs.  Whilst noting the claimant’s “apology”, the tribunal does not consider that this point had any merit.  The claimant was given a summary of the Rogan decision on various occasions throughout the hearing and time to consider its implications.  However, in the words of Mr Algazy he seemed “unwilling to divorce his grievance from his misconduct”.  He repeatedly sought to introduce his grievance and complained about the failure of the respondent to put forward the witnesses that he regarded as relevant.  At times the claimant appeared to expect the respondent to make his case for him.  The tribunal considers that this behaviour is on a par with the claimant’s admission that he said that “… Norbrook’s costs were no concern of his”.

 

10.     The costs of the respondent were certainly substantial in that they reached in or around £97,000.00.  Obviously, the tribunal would not have jurisdiction under Rule 41 to award such a sum as its upper limit in respect of costs is £10,000.00.  The respondent has effectively abandoned the amount of that bill in excess of £10,000.00.  This is a substantial proportion.  However, we have taken some note of the claimant’s financial circumstances.  Whilst the information given by the claimant was not complete, the tribunal was able to gain a picture of a claimant who has not insignificant debts and not much income.  However, bearing in mind that costs are not to be punitive but compensatory, the tribunal feels that it has to strike a balance between the position of compensating the respondent and not unduly punishing the claimant.  As such, bearing in mind that the respondent has already abandoned a large proportion of its claim, the tribunal considers that it is reasonable and fair to award the sum of £9,000.00 to be paid by the claimant to the respondent in respect of the costs it has incurred.  In reaching the decision, the tribunal has also had regard to the fact that there was evidence before the tribunal that the claimant had had to take out a personal loan to pay his former Solicitors, The Elliott Trainor Partnership but the tribunal has refused to consider a tax return sent to the Office of the Industrial Tribunals by the claimant after the hearing on 20 May 2011.  By the time it was received the deliberations had been completed, the decision reached and it did not have any comments from the respondent thereon.

 

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

Chairman:

 

Date and place of hearing:              20 May 2011.

 

Date decision recorded in register and issued to parties: