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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hamill v South Eastern Regional College [2012] NIIT 00030_11IT (13 March 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/00030_11IT.html
Cite as: [2012] NIIT 30_11IT, [2012] NIIT 00030_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 30/11 IT
CLAIMANT: Nicola Hamill
RESPONDENT: South Eastern Regional College
DECISION - COSTS
The unanimous decision of the tribunal is that:-
(i) the application for a Costs Order under Rule 40 of the Industrial Tribunals Constitution and Rules of Procedure Regulations (Northern Ireland) 2005 against the claimant is dismissed; and
(ii) the application for a Wasted Costs Order under Rule 48 of the Regulations against Mr Samuel Martins is granted in favour of the respondent in the sum of £1,000.00 + VAT (£1,200.00). He is ordered to pay the sum of £1,200.00 to the respondent.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Ms M Mulligan
Mr J E Martin
Appearances:
The claimant was represented by Mr Eamon McArdle, Barrister-at-Law, instructed by Rosemary Connolly Solicitors.
The respondent was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons Solicitors.
Mr Samuel Martins did not appear but he submitted a witness statement which was considered by the tribunal in reaching its decision.
1. The main decision in this case on the substantive issue of whether the claimant was unfairly dismissed was promulgated by the tribunal on 5 September 2011.
2. By a letter dated 14 September 2011 the respondent, through its Solicitors, made an application to the tribunal under Rule 40(3) of the Industrial Tribunals (Constitution and Rules of Procedures) Regulations (Northern Ireland) 2005 (the Regulations) for a hearing to apply for costs against the claimant and/or her representative on the grounds that in bringing the proceedings, continuing with the proceedings, and the conduct throughout the proceedings, the claimant and/or her representative has acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings has been misconceived. That application had appended to it two copy letters issued by Worthingtons to Mr Samuel Martins, the claimant’s former representative in the substantive hearing, dated 5 May 2011 and 21 June 2011.
3. The grounds upon which the respondent contended that the claimant and/or her representative had behaved unreasonably/abusively during the hearing were as follows:-
“(a) The case the claimant has put forward changing throughout the hearing.
(b) It was agreed that no issue was taken with the appeal process and then subsequently the tribunal was advised that indeed there were issues to be raised in relation to the appeal process. This resulted in hearing time being lost as the tribunal had to rise while this matter was resolved.
(c) Considerable portions of the claimant’s evidence were not put to the respondents’ witness(es). This resulted in hearing time being lost as the tribunal was required to rise so as the respondent could be informed of any other matters that would be raised which were not put. The respondent also required to take instructions on these issues as this resulted in further hearing time being lost. This also resulted in the witness being recalled.
(d) The claimant’s breach of oath to the tribunal which clearly is an interference with her evidence has led to hearing time being lost. In this regard, we refer you to the case of Linda Penton v Northern Ireland Courts Service (2005) 2166/02 and enclose a copy of same for your attention.”
4. In this letter, the respondent claimed an amount of £2,952.00 in respect of wasted costs for unreasonable behaviour during the hearing but reserved the right of the respondent to expand upon the above reasons.
5. The claimant instructed Rosemary Connolly Solicitors in respect of the costs application.
6. By a letter dated 3 October 2011, the respondent’s representative sent an itemised bill to the tribunal and confirmed that this bill and the covering letter of 3 October 2011 had also been forwarded to the claimant and her representative. This bill totalled the sum of £13,937.18.
7. Rule 41(1)(a) of the Regulations provides:-
“The tribunal may specify the sum which the paying party must pay for the receiving party, provided that sum does not exceed £10,000.00.”
8. By an e-mail dated 11 October 2011 Mr Martins confirmed that he no longer represented the claimant.
9. A Case Management Discussion was held on 24 October 2011 with Ms Jenine McCourt of Rosemary Connolly Solicitors and Mr Samuel Martins being present by telephone and Mr Phillips, Barrister-at-Law, present in person with his instructing solicitor. At that hearing a time table of actions was agreed to enable the hearing of the costs issue to take place.
10. Attempts were made to fix the costs hearing for 9 December 2011, but by an e-mail from Mr Martins dated 11 November 2011 he indicated that that was not suitable:-
“... because my wife is having her hip replaced by the end of November and she is required to have six weeks bed rest thereafter.
I am her sole carer in addition to caring for a five month old baby, therefore if it would assist the tribunal, I am willing to address any issues in writing, or alternatively, I will be available to attend the tribunal in the New Year.”
11. By a letter dated 17 November 2011, Rosemary Connolly Solicitors indicated that it would not be satisfactory to list the matter in the New Year as the claimant was expecting her first baby in mid-January, and if the hearing could not be accommodated, she would not be available until after 1 March 2012.
12. By a letter dated 1 December 2011 to the parties, the tribunal indicated “subject to medical or other suitable evidence being provided about the difficulties faced by the claimant and Mr Samuel Martins, the tribunal is adjourning the hearing of the costs application until Tuesday, 6 March 2012...”
13. By a letter dated 5 December 2011, Rosemary Connolly Solicitors notified the tribunal that Mr Martins had not provided the witness statement he agreed to provide as part of a timetable of events to let that costs hearing proceed but that he had sought a postponement of the hearing. The claimant’s representative emphasised the need to have this hearing dealt with as soon as possible.
14. A Case Management Discussion was arranged for Thursday, 8 December 2011 and this was notified to Mr Martins both by e-mail and in person by a member of the tribunal staff on 7 December 2011. In that meeting Mr Martins said that he would be able to take part in the Case Management Discussion by telephone; he provided his telephone number and in turn he was given a copy of correspondence from the claimant’s representatives.
15. By an e-mail dated 7 December 2011, Mr Martins said that he would not be able to attend the Case Management Discussion on 8 December 2011 as he was in a tribunal hearing in Glasgow.
16. The Case Management Discussion took place on 8 December 2011 in the absence of Mr Martins but a Record of Proceedings was sent to him under cover of a letter dated 13 December 2011. It was pointed out in the covering letter that as no medical or other suitable evidence of his inability to attend during December 2011 had been provided by Mr Martins, the foot of an application made at the Case Management Discussion hearing was listed for hearing on 21 December 2011. Mr Martins was also advised that if he made a properly constituted prior application for a postponement supported by appropriate evidence, it would be copied to Rosemary Connolly Solicitors and Worthingtons Solicitors for comment and it would then be considered along with any comments those firms chose to make by the Chairman.
17. He was also reminded of his entitlement to furnish written representations in accordance with Rule 48 of the Regulations.
18. Mr Martins provided a witness statement to the tribunal under cover of an e-mail of 15 December 2011 and it was considered by the tribunal in reaching its decision.
19. No criticism was made of the terms of the costs warning letters sent by Worthingtons, either by Mr Martins or Mr McArdle.
20. Was the claimant misconceived in bringing her case for unfair dismissal against the respondent? Upon reviewing the evidence before it (both what the claimant had raised in the substantive hearing and in connection with the hearing for costs), the tribunal did not consider that the claimant had been misconceived in bringing her case. There were a number of issues of fact which arose in connection with the substantive decision which rendered it necessary for the tribunal to give close consideration of the issues raised and to consider particularly whether or not the facts of the particular case could be brought within the ambit of the case law. In particular, but without prejudice to the generality of the foregoing, the tribunal had to give close consideration to the letter issued by the respondent to the claimant as part of the disciplinary process with particular reference to whether or not it complied with the statutory procedure set out in Schedule One of the Employment (Northern Ireland) Order 2003. Having done so, the tribunal then considered whether or not the claimant would have been dismissed anyway. Due to these issues, the tribunal is unable to find that in bringing her claim the claimant was misconceived.
21. Furthermore, the tribunal is supported in reaching that decision by the claimant’s oral evidence at the costs hearing which made it plain that she relied heavily on the advice of Mr Martins and was very alert about the danger of her being faced with an application for costs. The claimant’s evidence was that Mr Martins was confident and upbeat about her chances of success.
22. Essentially the nub of Mr Martin’s advice to the claimant was that if costs arose as an issue, he would have them quashed.
The behaviour at hearing
23. The three complaints made by the respondent were as follows:-
(a) A significant number of matters were raised by the claimant in her answers to cross-examination which had not been put by Mr Martins in connection with his examination in chief of the claimant and his cross-examination of the respondent witnesses.
(b) There was an issue about whether or not the claimant had any complaint about the appeal process.
(c) The issue of the claimant’s “breach of oath”.
(d) The failure to put matters.
(e) It was undoubtedly the case that matters of some substance were not put by Mr Martins to the respondent witnesses and this resulted in the recall of Ms Muriel Tafts so that she could respond to the issues raised. The point about the appeal hearing was explained by the claimant in her evidence at the costs hearing. It appeared that Mr Martins had confused the names of the person who was involved in the appeal hearing and essentially had agreed that the wrong person was not required. It appeared to the tribunal from the claimant’s evidence, that this was the matter that Mr Martins had brought up of his own volition and not on the basis of instructions from the claimant. It also appeared that when the respondent objected to the manner in which this had been handled, Mr Martins, after time was given to him to consider the position by the tribunal simply withdrew the allegations made in respect of the appeal.
(f) Finally, we come to the matter of what Mr Phillips characterised as “a breach of the claimant’s oath”, but which we consider is more correctly to be described as a breach of the caution to the claimant, which was that during periods in which the tribunal had risen (for whatever reason), she was not to discuss her evidence with anybody. When Mr Martins admitted to the tribunal that he had raised certain matters with the claimant while she was under cross-examination by Mr Phillips, the tribunal indicated that this could potentially raise an issue of contempt of court and rose to allow the respondent to consider whether or not it wished to adjourn the substantive proceedings to bring proceedings for contempt of court in the appropriate jurisdiction.
Although Mr Phillips indicated that his client did not wish to bring proceedings for contempt of court, nonetheless this caused a significant delay in the hearing of the substantive issue as, in fairness to the respondent, time had to be given for a proper consideration of the issue and for Mr Phillips to take his client’s instructions in relation thereto.
Whilst the tribunal can perhaps understand that even though it has cautioned a person giving evidence against discussing their evidence with anyone, and the person giving evidence is approached by their own representative, that there is some allowance to be made for a person in an unfamiliar setting to breach the caution, the tribunal does not consider that any allowance at all can be made for Mr Martins.
This was not the first case in which Mr Martins has represented anyone in a tribunal. Whilst the tribunal noted that it was necessary for it to provide copies of exerts from the Regulations of the tribunal to Mr Martins at various stages of the hearing, nonetheless it did appear to the tribunal from diary issues raised by Mr Martins when the tribunal was reconvening the hearing that he did represent other people in tribunal hearings. The tribunal is supported in reaching this conclusion by the fact that Mr Martins, when challenged by the tribunal, explained that the original approach to the claimant had been made by him. It also appeared to the tribunal from what Mr Martins admitted that he was making a deliberate attempt to direct the evidence given by the claimant. We consider that in so doing Mr Martins acted improperly and even if he had no prior knowledge of how a person giving evidence is to be treated, was aware from the cautions to the witnesses given by the tribunal that speaking to a witness while giving evidence was not allowed. We also consider that in respect of Mr Martins’ failure to put matters to the respondent witnesses, and his “confusion” over the appeal which led him to agreeing to the wrong witness being dismissed from the tribunal hearing he behaved unreasonably.
(g) It was very clear from the claimant’s evidence that she relied upon Mr Martins to present her case properly to the tribunal and indeed seemed to have very little control over the manner in which he did it, so we do not consider that it would be appropriate to punish her in costs for the actions of her representative which in the opinion of the tribunal came within Rule 48(3)(a) as being as fulfilling the definition of “wasted costs” which were any costs incurred by a party - “as a result of any improper, unreasonable or negligent act or omission on the part of any representative;...”
24. It is settled law that awarding costs is a compensatory and not a punitive matter. Undoubtedly, the respondent has incurred considerable costs in defending this case but we do not find that the claimant was misconceived in bringing the case, and we consider it would be inappropriate to hold her responsible for the unreasonable omissions in the presentation of her case and the improper behaviour in approaching her when she was under caution. However, we do agree that these items of behaviour lengthened the hearing and we consider that it would be appropriate to compensate the respondent by awarding it the sum of £1,000.00 in respect of its wasted costs together with VAT thereon (which is apportioned between counsel and instructing Solicitor as follows):-
|
For Mr Phillips: |
£750.00 |
+ VAT |
|
For the attendance upon him by Worthingtons Solicitors: |
£250.00 |
+ VAT |
Chairman:
Date and place of hearing: 21 December 2011, Belfast.
Date decision recorded in register and issued to parties: