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THE INDUSTRIAL TRIBUNALS

CASE REF: 1897/09

CLAIMANT: Jack McQuiston

RESPONDENT: G4S CIT (UK) Ltd

DECISION ON COSTS

The unanimous decision of the tribunal is that:-

(i) the application for a Costs Order under Rule 40 against the claimant is dismissed; and

(ii) the application for a Wasted Costs Order under Rule 48 against Mr G F Wilson is granted in the sum of £750.00 plus VAT.

Constitution of Tribunal:

Vice President: Mr Noel Kelly

Members: Mr Samuel Adair

Mrs Eileen Kennedy

Appearances:

The claimant appeared in person and was unrepresented.

Mr G F Wilson appeared on his own behalf in relation to the application for a Wasted Costs Order.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Jones Cassidy Jones, Solicitors.

The issues

1. In a decision recorded in the Register and issued to the parties on 8 October 2010, the tribunal dismissed a claim of unlawful disability discrimination brought by the claimant against the respondent in relation to his employment.

2. The claimant’s representative, Mr G F Wilson, applied for a review of that decision on 21 October 2010 and that application was refused on 27 October 2010.

3. The respondents’ solicitors applied for costs against the claimant, by letter dated 26 October 2010.

4. A costs hearing was fixed by the tribunal for 5 January 2011 and notification of the hearing was sent to the named representatives of the parties, including Mr Wilson, by letter dated 15 December 2010.

5. Neither the claimant or Mr Wilson attended that hearing on 5 January 2011. The clerk of the tribunal was directed to telephone the claimant at his place of work. The claimant remains in the employment of the respondent and the respondent supplied the telephone number. The claimant stated that he had not been informed by Mr Wilson that the costs hearing was to take place on 5 January 2011.

6. The costs hearing was therefore postponed to 7 February 2011.

7. The respondent applied for a Wasted Costs Order against Mr Wilson in respect of the hearing on 5 January 2011.

8. Therefore there are two issues to determine:-

(i) whether a Costs Order should be made against the claimant; and

(ii) whether a Wasted Costs Order should be made against Mr Wilson.

Costs hearing

9. Mr Hamill was invited by the tribunal to set out the grounds for his client’s two applications, ie the application for a Costs Order and the application for a Wasted Costs Order. He stated that the first costs warning issued by the respondent to the claimant was by letter dated 24 August 2009. That letter stated that:-

“We are of the view that your claim before the industrial tribunal is misconceived and lacks reasonable prospect of success.”

It continued:-

“You are now invited to withdraw the industrial tribunal proceedings. If you do so within 28 days from the date of this letter, no application for costs shall be made by the respondent against you. However, in the event that you fail to withdraw the tribunal proceedings and your claims are not upheld, it would be our client’s intention to apply for an award of costs against you in relation to all costs incurred after the 28 day period.”

10. Mr Hamill stated that a further costs warning was issued by letter dated 19 March 2010 to Mr Wilson. It stated:-

“As you will note, we have put the claimant on notice of the respondent’s intention to make an application for costs in the event that the claimant is unsuccessful in his claims before the industrial tribunal. We are firmly of the view that the claimant’s claims before the industrial tribunal have no reasonable prospect of success. In the event that the claimant withdraws his claims before the industrial tribunal within 14 days of the date of this letter, no application for costs against the claimant shall be made. If the claimant fails to withdraw his claims before the industrial tribunal within 14 days of the date of this letter, if he is unsuccessful in his claims, it would be the respondent’s intention to seek an Order for Costs against the claimant in relation to all costs incurred from 29 September 2009.”

11. Mr Hamill stated that that was followed by a further letter of 8 June 2010 to Mr Wilson which, like the two earlier letters, was headed ‘without prejudice save as to costs’ and was essentially a Calderbank-type letter. That letter offered £500.00 in full and final settlement of the claim and stated that:-

“In the event that the claimant fails to accept the offer and either he is unsuccessful in his claims or he is awarded a sum of £500.00 or less, then it would be the respondent’s intention to seek an Order for Costs against the claimant.”

12. It was not in dispute that these costs warnings had been discussed by the claimant and Mr Wilson and, equally, it was not in dispute that no response had been received by the respondent to any of those letters.

13. Mr Hamill accepted that there had been no specific finding in the tribunal’s decision that the claimant had lied at any stage after the issue of proceedings and Mr Hamill also accepted that only acts or omissions which occurred after the issue of proceedings could be relevant to the consideration of a Costs Award. He further accepted that his application for costs stood or fell on the argument that the case was misconceived from the outset and that the claimant could and should have known that that was the case.

14. In the course of the costs hearing, the tribunal expressed concern that in the correspondence to which it had been referred, the respondent had not set out, in specific terms, the grounds for its assertion that the claims made by the claimant had been misconceived or unreasonable from the outset. In circumstances where the respondent had professional legal representation and where the claimant was not professionally represented, it would have been better if a clear explanation of the grounds for that assertion had been set out in that correspondence before the claimant had been invited to either withdraw his claim or to accept a ‘nuisance value’ settlement and to withdraw his claim. Mr Hamill argued that the grounds for the claimant’s allegations were not entirely clear and it therefore would have been difficult for the respondent to have clearly articulated the reasons why the case was, in the view of the respondent, misconceived. The tribunal pointed to Paragraph 7.1 of the claim. It was clear from that paragraph that a significant part of the claim was that the claimant had been moved to a lower paying job as a reasonable adjustment and it was apparent that the claimant had been under the belief that the lower pay, in itself, constituted a failure to make a reasonable adjustment. When invited to consider whether or not it would have been better if the respondent had, at an early stage, pointed out and explained how this approach was erroneous, the respondent acknowledged that it would have been better if they had done so and that, if that had been done, their application for costs would have been much stronger.

15. At that point the tribunal asked Mr Hamill to turn to the second part of his application, ie to his application for a Wasted Costs Order. Mr Wilson, who had at that stage had been sitting at the back of the room, shouted something to the effect that the Vice President should recuse himself from this case. This was not a matter which had been raised before the hearing in writing or at any stage prior to this point. The Vice President invited Mr Wilson to sit at the table in the tribunal room and to explain the basis for his statement. When he had seated himself, he stated that he had made a complaint to the Lord Chief Justice about the tribunal’s ‘terrible decision’ and that he intended to pursue the matter by way of a formal complaint. The Vice President advised Mr Wilson that he had not known that a formal complaint had been contemplated or that he had complained to the Lord Chief Justice’s Office about a ‘terrible decision’ until he had disclosed that matter to the tribunal. The Vice President also pointed out to Mr Wilson that the fact that he had made such a complaint, or intended to make such a complaint, would not in any way weigh upon the Vice President’s consideration or upon the panel’s consideration of the two issues before the tribunal. Mr Wilson was also told that no one else could properly hear a costs application other than the panel and the chair who had heard the original case. On that basis, the tribunal refused his application that the Vice President should recuse himself and the hearing proceeded.

16. The tribunal asked Mr Hamill to continue with his application in relation to the Wasted Costs Order. He stated that at the hearing on 5 January 2011, the claimant and Mr Wilson had not attended. At the start of that hearing the tribunal had risen and the claimant had been contacted by telephone by the tribunal clerk at his place of work and he had stated that he had not been informed by his representative, Mr Wilson, that the costs hearing was due to take place on that date. On that basis, the costs hearing had been adjourned and Mr Hamill stated that the respondent had incurred legal costs in respect of that hearing of £750.00 including VAT. That comprised his fee of £500.00 plus VAT and the solicitors’ fee of £250.00 plus VAT to include travel time, consultation time and attendance at the tribunal on 5 January 2011.

17. After summarising Mr Hamill’s arguments in relation to the Costs Order application against him, the tribunal asked the claimant to respond to that application. The claimant stated that he had been denied a proper grievance procedure by his employer. If a proper grievance procedure had been properly provided he might not have taken the case to the tribunal. The grievance procedure had not been completed until after he had lodged his tribunal case and that furthermore Mr Wood, who eventually heard his grievance, had attended from England under the impression that he was hearing some sort of an appeal and not a grievance. He indicated that if his grievance had been properly addressed the situation could well have been different. He had discussed the costs warnings with Mr Wilson and had been advised that it was 99% certain that no Costs Order would be made. He stated that he had not heard anything about the costs hearing on 5 January 2011. He had received a telephone call from the tribunal clerk, as indicated by Mr Hamill, on 5 January 2011 and that was the first he had heard of the costs hearing. The claimant stated that he had received one letter from Mr Wilson after he had received the tribunal decision. He did not read the letter because as far as he was concerned, he had lost the case and he did not want to have anything more to do with it. He did not recall receiving a second letter and had received no notification letter about the costs hearing on 5 January 2011.

18. The tribunal then invited Mr Wilson to respond to the application for Wasted Costs Order against him. He was invited to put any questions that he wished to the claimant who was on oath. The claimant confirmed that he had received one handwritten letter from Mr Wilson. The claimant stated that he was not able to confirm that that letter, ie the one letter that he remembered receiving from Mr Wilson, had been to arrange an appointment to discuss the case. He stated that he did get the letter but that he had not read it.

19. Mr Wilson was asked if he was going to give sworn (or affirmed) evidence or whether he wanted to simply make a submission. He stated that he was not obliged to give evidence on oath or affirmation and proceeded by way of a submission. Mr Wilson stated that when he received the tribunal’s decision he was ‘shocked at the quality of it’. He had telephoned the claimant and told him that they would have to discuss it. He stated that on 14 October 2010, he had lost his mobile phone and thereafter could not verbally contact the claimant. On Friday 22 October 2010, he applied for a review without directly obtaining instructions from the claimant although he had previously had a general discussion with the claimant about the possibility of a review application.

20. Mr Wilson stated that on 25 October 2010 he wrote to the Lord Chief Justice making a complaint about the quality of the decision and also wrote to the claimant proposing to meet on that Friday which would have been Friday 29 October 2011 at 5.30 pm. Mr Wilson stated that this meeting would have been at their ‘usual meeting place’ although he refused to identify that meeting place to the tribunal.

21. Mr Wilson stated that he had attended the meeting and had waited 45 minutes but the claimant had not turned up. Since he had lost the claimant’s telephone number with his mobile phone he did not telephone him.

22. Mr Wilson stated that he had taken the initial view that the claimant was no longer interested in having him as his representative and that this initial view had since been confirmed by the claimant’s failure to contact him at any point thereafter and then by the tribunal’s failure to contact him at any point in the following eight to ten weeks.

23. Mr Wilson stated that all his post was directed to a Post Office Box and that was in fact the address that he had provided to the tribunal as an address for service. He stated that his practice was to collect his mail once in a week in Tomb Street. He had checked his mail on 14 December 2010 but had not thereafter checked it until 6 January 2011. He stated that this was due to inclement weather conditions, a holiday period and ‘ongoing illnesses’. Mr Wilson did not produce any medical evidence in relation to this period and did not specify the nature of the illness.

24. Mr Wilson stated that on 10 January 2011, some five days after the first costs hearing, he had spoken to the tribunal clerk on the telephone and had explained the position.

25. He maintained that he did write to the claimant for a second time requesting a further meeting with regard to the costs hearing. The claimant did not reply and that confirmed Mr Wilson’s view that he did not want to be represented by Mr Wilson.

26. In response to a question from the tribunal, Mr Wilson confirmed that he did not contact the tribunal at any time to say that he was no longer acting for the claimant and to come off record as the claimant’s named representative.

Decision

27. The tribunal rose for approximately 20 – 25 minutes to consider its decision. It returned and stated that a written decision would issue but the Vice President outlined, in brief, the decisions of the tribunal in respect of the two applications and the reasons for those decisions. The following paragraphs confirm what was said at that point in the tribunal proceedings.

28. The tribunal did not make an award for costs under Rules 38 – 41 of the Industrial Tribunals Rules of Procedure set out in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules’). Under Rule 40(3) a Costs Order may be made where a claimant or respondent, 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.”

29. In assessing whether a party has acted unreasonably, a tribunal has to be careful to acknowledge that the merit or lack of merit, of some cases may not become apparent until after the conclusion of the hearing. In E T Marler Ltd v Roberts [1974] ICR 72, the court held:-

“Ordinary experience in life frequently teaches us that which is plain for all to see once the dust of battle has subsided was far from clear to the contestants when they first took up arms.”

30. The EAT considered Calderbank letters in Kopel v Safeway Stores PLc [2003] IRLR 753. It stated:-

“Nevertheless an offer of the Calderbank type is a factor which an employment tribunal can take into account deciding whether to make a Costs Order in accordance with [equivalent GB Rules]. However, failure by an applicant to achieve an award in excess of the rejected offer should not by itself lead to an order for costs. Before the rejection becomes a relevant factor in the exercise of its discretion under [equivalent GB Rules], the Employment Appeal Tribunal must first conclude that the conduct of the applicant in rejecting the offer was unreasonable.”

31. It was clear from the original claim form that the thrust of the claimant’s claim in respect of reasonable adjustments was that his move to a lower paid job was, because of the lower pay, not a reasonable adjustment for the purposes of the Act. It is equally clear from Mr Wilson’s correspondence that he had shared that view. That view was clearly mistaken. However, there is nothing to suggest that the claimant’s view in this respect was anything other than genuine.

32. The grievance procedure offered by the respondent was slow, delayed and in some respects confused. In particular, Mr Wood arrived from England to hear the grievance without a full understanding of the nature of the matter before him. More importantly, during the correspondence which contained the costs warnings, the inadequacies of the claimant’s claims or his mistakes in relation to his legal position were never clarified for the purposes of those costs warnings. As indicated earlier in the decision, the tribunal is concerned that in circumstances where one party is professionally legally represented and the other party is not professionally legally represented, costs warnings in the employment tribunal jurisdiction should be accompanied by something more detailed than a simple assertion that the claim (or response) is misconceived. If, for example, the respondent in the present case had set out in detail the reasonable adjustments that had in fact been put in place, had summarised the medical evidence which necessitated the claimant’s move to a different job and had pointed out in plain terms, that the fact that the new job had a lower pay rate was not in itself a reason for concluding that this had not been a reasonable adjustment, the situation might well had been different. If the claimant had been given that level of information, he may well have concluded that it was not worth proceeding further. If a respondent seeks to take advantage of a Calderbank letter, there must be some onus on that respondent to make sure that the claimant actually is in a position, following receipt of that letter, to properly consider his position.

33. The tribunal therefore concludes that it would not be appropriate to make a costs award against the claimant in these circumstances. It cannot be said that the claimant acted unreasonably, vexatiously, abusively or disruptively in making or pursuing his claim in all these circumstances, bearing in mind that employment tribunals are still a jurisdiction where costs, although they have become more common in recent years, are the exception, rather than the rule.

34. In relation to the application for a Wasted Costs Order against Mr Wilson, the tribunal reminded itself of the provisions of Rule 48 and reminded itself that a Wasted Costs Order requires, on the part of the representative, improper, unreasonable or negligent acts or omissions which themselves cause the respondent or claimant to incur the costs which are claimed.

35. It seemed to the tribunal to be clear that Mr Wilson had written to the claimant on one occasion and there is no reason for the tribunal to conclude, in the circumstances, that that letter would not have sought to arrange a meeting between the claimant and Mr Wilson to discuss an appropriate way forward. The claimant accepts that he received one letter and that he did not read it. He accepts he did not attend any meeting with Mr Wilson. It is also clear that Mr Wilson wrote to the tribunal on 5 November 2010 in relation to the costs application objecting to that application and representing himself, at that stage, as the claimant’s representative. It is therefore clear that Mr Wilson was still actively pursuing the claimant’s interest at that point in time.

36. Thereafter, Mr Wilson did not pursue his application for leave to make detailed written submissions in respect of costs and he did not correspond with the tribunal. He states that he did send a second letter to the claimant but the claimant does not recall receiving such a letter.

37. In any event, Mr Wilson accepts that he did not check his post-box from 14 December 2010 to 6 January 2011. He puts forward various reasons for that, ie inclement weather, the Christmas and New Year holidays and unspecified illnesses for which no medical evidence has been produced. Acting, for profit, as a representative for a party in tribunal litigation is an important function and is not to be treated lightly. The tribunal concludes that Mr Wilson’s failure to check the post for three weeks, particularly where he knew that a costs hearing was likely, was both negligent and unreasonable. If Mr Wilson had checked his post before 6 January 2011, he could have notified the tribunal or the respondent of the position and the costs hearing on 5 January 2011 could have been postponed.

38. Furthermore, when Mr Wilson had reached the conclusion that he was no longer acting for the claimant or had reached the conclusion that he was probably no longer acting for the claimant, it was for Mr Wilson, again particularly where there had been a costs application and a costs hearing was pending, to notify the tribunal promptly of that position and to come off record. He accepted that he had not come off record and that he should have come off record. His failure to come off record meant notification of the first costs hearing on 5 January 2011 went only to him as the named representative and did not go to the claimant. As a result, the respondent attended the hearing as scheduled on 5 January 2011 and the respondent’s time was wasted in that respect.

39. For those two reasons, the tribunal concludes that a Wasted Costs Order is appropriate against Mr Wilson and also concludes that the costs claimed by the respondent are reasonable. A Wasted Costs Order under Rule 48 is therefore made against Mr Wilson in the sum of £750.00 + VAT being £500.00 + plus VAT in respect of counsel’s fee and £250.00 + VAT in respect of the respondent’s solicitors’ fees.

Vice President:

Date and place of hearing: 7 February 2011, Belfast

Date decision recorded in register and issued to parties: