Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Neill v Lynn Recruitment Limited [2013] NIIT 1083_13IT (17 December 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1083_13IT.html
Cite as: [2013] NIIT 1083_13IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 1083/13

CLAIMANT: Aisling O’Neill

RESPONDENT: Lynn Recruitment Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1) The tribunal grants the application of the claimant for leave to amend her claim, and it is so amended, to include claims pursuant to the Disability Discrimination Act 1995, as amended, namely:-

(a) that the respondent has discriminated against the claimant by failing to make reasonable adjustments, pursuant to Section 4A of the Disability Discrimination Act 1995, as amended, in relation to how the respondent applied its sick leave provision criterion or practice to the claimant prior to the claimant resigning from her employment, as set out in the claimant’s representative’s letter dated 9 October 2013; and

(b) that the respondent harassed the claimant, pursuant to Section 3B of the Disability Discrimination Act 1995, as amended, relying on the same facts as set out in the claimant’s claim form in relation to her sex discrimination claim.

(2) The tribunal refuses the respondent’s application to strike-out the claimant’s claim for failure to comply with an ‘Unless Order’ made by the tribunal on 26 November 2013.

(3) The tribunal orders the claimant to pay to the respondent the sum of £200.00 in respect of the respondent’s costs of the postponement of the pre-hearing review hearing on 22 November 2013.

(4) A further Case Management Discussion will take place on:-

17 December 2013;

to enable the tribunal to give further case-management directions/orders arising out of the tribunal’s decision to grant the claimant leave to amend her claim, as set out above.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Ms M Jones, Barrister-at-Law, instructed by Begley Swift, Solicitors.

The respondent was represented by Mr S Doherty, Barrister-at-Law, represented by Worthingtons, Solicitors.

Reasons

1.1 At the outset of the hearing it was agreed the tribunal had to determine:-

“(i) the claimant’s application for leave to amend her claim form to include claims pursuant to the Disability Discrimination Act 1995, as amended, as set out in the claimant’s solicitors’ letter dated 9 October 2013;

(ii) the respondent’s application to strike-out the claimant’s claims for failure to comply with an ‘Unless Order’ made by the tribunal on 26 November 2013; and

(iii) the respondent’s application for an Order for Costs against the claimant arising out of the postponement of the pre-hearing review on 22 November 2013, which had been listed to determine the claimant’s application for leave to amend her claim form.”

1.2 At the pre-hearing review on 22 November 2013, which the tribunal postponed on the application of the claimant, the tribunal made an ‘Unless Order’, which was sent to the parties on 26 November 2013, which stated, inter alia:-

“TAKE NOTICE IT IS ORDERED THAT UNLESS by close of business on 2 December 2013 you comply with the tribunal’s Orders, and each of them, for Discovery and Inspection, provision of the witness statement of the claimant and any witness she wishes to call and that the claimant’s witness statement includes any medical reports on which she seeks to rely in support of her claim, as set out in the Record of Proceedings dated 25 September 2013 of the Case Management Discussion on 25 September 2013, the tribunal may make a decision that your claims to the tribunal will be struck-out, pursuant to Rule 13(2) of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 for failure to comply with this Order, without further consideration of the proceedings or the need to give any further notice or to hold any further hearing.

… .”

Since, there was an application by the respondent’s representative for a strike-out of the claimant’s claim for failure to comply with the ‘Unless Order’ I considered it necessary to determine the application at the outset of the proceedings before considering the application for leave to amend the claimant’s claims.

1.3 It was not disputed by the claimant’s representative that the importance of compliance with the said ‘Unless Order’ had been emphasised by me at the hearing on 22 November 2013, when the said Order was made and of the consequence, for the claimant’s claims, if there was any failure to do so. Under Rule 13(3) of the Rules of Procedure, it is provided that if there is a failure to comply with an ‘Unless Order’, the tribunal may strike-out a claim where there is such a failure. In Great Britain, under the previous 2004 Rules of Procedure, the Rule was in similar terms; but provided that, where there is a failure to comply with an ‘Unless Order’ the tribunal shall strike-out a claim. As a consequence considerable case law has arisen in Great Britain which allowed for a party to make an application for relief from sanction (see further Governing Body of St Albans Girls’ School v Neary [2009] EWCA Civ 1190).

1.4 It was not disputed that the claimant had failed to comply with the ‘Unless Order’ in that the relevant documents were not sent by the claimant’s solicitors to the respondent’s solicitors until 9.00 am approximately by fax on 2 December 2013, by fax. I do not accept that the term ‘close of business’, as suggested by the claimant’s solicitor, would be considered in this jurisdiction to mean at or about 9.00 pm – especially when I had indicated to the claimant’s counsel, when making the Order, I wished it to be complied with within the normally recognised working day on 2 December 2013, so that the respondent’s solicitors knew, before they left the office on 2 December 2013, whether or not the Order had been complied with. The failure to comply, I accept, was due to pressure on the part of the claimant’s solicitors. Given he was going to be late in complying, he should have contacted the respondent’s solicitors and explained the position; but, as in so many cases there was a failure to do so, which shows, in any event, a lack of professional courtesy between representatives. Despite the above failure, I accept that the failure was more in the nature of a ‘technical’ failure. There was also a failure to enclose certain relevant benefit documents but this was remedied shortly thereafter and does not alter my conclusions, as set out below.

As Underhill J in the case of Thind v Salvasen Logistics Ltd [2010] UKEAT/0487/07 has made clear, when interpreting the then much stricter rule in Great Britain that:-

“The tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the unless order. That involves a broad assessment of what is in the interests of justice and the factors … will generally include, but may not be limited to the reason for the default; the prejudice to the other party; and whether a fair trial remains possible. The fact that an unless order has been made, which of course puts the other party in question squarely on notice of the importance of complying with the Order and the consequences if he does not do so, will always be an important consideration. Unless orders are an important part of the tribunal’s procedural armoury (albeit not one to be used lightly) and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside. But that is no more than one consideration. No one factor is necessarily determinative of the course which tribunal should take. Each case will depend on its own facts.”

Although under Rule 13(2) of the Rules of Procedure, unlike in Great Britain, I have a discretion, I am satisfied the guidance set out above by Underhill J, albeit for relief from sanction, is applicable to the exercise of my discretion in this jurisdiction.

I am very aware that to strike-out a claim is a draconian measure. I am satisfied that a fair trial is still possible and there is no real prejudice to the respondent by the short technical delay in compliance with the Order. I therefore refused the application by the respondent to strike-out the claimant’s claims for failure to comply with the said Order; but I made it clear to the claimant’s representatives that greater care should be taken to comply with such Orders in the future as the consequences in another case could be fatal for a party’s claim.

2.1 The claimant presented a claim to the tribunal on 3 June 2013 in which she made a claim of constructive unfair dismissal and sex discrimination. The respondent presented a response on 8 July 2013 in which it denied liability.

In accordance with the tribunal’s normal procedures a Discrimination Case Management Discussion was held on 25 September 2013 in which the tribunal gave certain case-management directions/orders to enable the substantive hearing to be listed for 15 – 17 January 2014. In relation thereto, it is of some interest, having regard to the amendment application to note the factual issues identified by the parties:-

“(1) Prior to going on sick leave in 2012, what arrangements or agreement was reached in relation to cover for the claimant?

(2) What was the nature of the claimant’s illness and what was her health condition in the period March 2012 – March 2013?

(3) Who exercised management responsibility in the Portadown Office in the claimant’ absence prior to its closure?

(4) What negative comments, if any, were made about the claimant during her absence in 2012 by Ms Lynn and/or other staff including Mr Mooney?

(5) What information did the respondent have about the claimant’s health and situation by mid-February 2013?

(6) Did the respondent’s correspondence dated 27 February 2013, 6 March 2013 and 14 March 2013 impact the claimant and, if so, in what way?

(7) How did the claimant respond to those letters?

(8) Did the respondent place the claimant under unreasonable pressure in all the circumstances or were the respondent’s actions reasonable in the circumstances considering, in particular, the duration of the claimant’s absence from work?

(9) Why did the claimant resign?”

2.2 It is apparent from the claimant’s claim form and the factual issues so identified, that matters relating to the claimant’s health, her operation and subsequent absence from work and the respondent’s sick absence from work and the respondent’s sick absence records are relevant to the claimant’s claim of unfair constructive dismissal and/or sex discrimination. Indeed, the Chairman, at the Case Management Discussion on 25 September 2013, made it clear and, so ordered, the claimant’s witness statement must include any medical reports on which the claimant was seeking to rely in support of her claims.

2.3 The claimant prepared her own claim form, following advice from the Equality Commission and, as accepted by the parties, there was no claim set out therein relating to any claim of disability discrimination. At the Case Management Discussion on 25 September 2013, by which time the claimant was represented by solicitor and counsel, Mr Potter, her then counsel, indicated the claimant might wish to amend the claim form to include a claim of disability discrimination. Following directions/orders by the Chairman at the Case Management Discussion, by letter dated 9 October 2013, the claimant’s representatives set out her application to amend the claim form to include a claim of disability discrimination. In the said letter specific detail was given of the disability to be relied upon in respect of any such claim, which it is seen relates to the same health issues/operation referred to in the claim form; and further sought in the letter to amend the claim:-

“(a) by re-labelling the claim to include a disability discrimination claim for reasonable adjustment failure in relation to how the respondent applied its sick leave policy criterion or practices to the claimant prior to the claimant resigning from her employment – the claimant alleges that she was substantially disadvantaged by reason of the failure to make reasonable adjustments; or

(b) by adding a new claim subject (as set out at (a) above) to the tribunal giving the claimant leave to do so.”

2.4 The respondent’s representative objected to the said amendment by letter dated 16 October 2013. As a consequence, a pre-hearing review had to be arranged as anticipated by the Chairman at the Case Management Discussion, as set out in the said Record of Proceedings; and, as shall appear later, it finally came on for determination at this hearing. Neither party called any oral evidence and the representatives of both parties relied on oral submissions. At the commencement of this hearing, the claimant’s counsel, Ms Jones, made an application for leave to further amend the claimant’s claim to include a claim of harassment pursuant to Section 3B of the Disability Discrimination Act 1995, as amended. She confirmed that, in making the said further application, the claimant was seeking to rely, in relation to such an amended claim of harassment, on the same facts set out in the claim form in relation to her claim of harassment, pursuant of the Sex Discrimination (Northern Ireland) Order 1976. The respondent’s counsel, Mr Doherty, objected to this late application but accepted that he could deal with it at this hearing and no further postponement was required. In the circumstances, I allowed this further application to proceed. In determining these applications for leave to amend, I made it clear it was not my role to determine any factual issues or indeed the strength or weaknesses of the proposed amended claims. Ultimately, if leave is granted, these will be issues to be determined at any substantive hearing by a tribunal after hearing all the relevant evidence. It was not disputed that, under the Rules of Procedure (Rule 10(2)(n)), a tribunal has a general discretion to grant leave to amend a claim.

2.5 Harvey on Industrial Relations and Employment Law, Volume 3, Division P, has set out the following distinctions in relation to applications for leave to amend:-

“311.03 A distinction may be drawn between (i) amendments which are merely designed to later the basis of an existing claim but without purporting to raise a new distinct head of complaint; (ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and (iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.”

There was no dispute between the representatives the first category was not applicable. However, there was a dispute between the parties whether the proposed amended claims fell within the second or third category. It is often difficult in many cases to distinguish between these two categories.

In Harvey at Paragraph 312.D1 it is stated:-

“So far as Category (ii) is concerned tribunals have always shown a willingness to permit a claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim. It is usually described as putting a new ‘label’ on facts already pleaded.”

Crucially, if a new claim arises out of facts that have already been pleaded in relation to the proposed amendment, it is required to be subjected to scrutiny in respect of time-limits but will be considered under the general principles applicable to amendments, as set out in Selkent Bus Co v Moore [1996] IRLR 661 (see later).

By way of contrast, in relation to the third category – entirely new claims unconnected with the original claim as pleaded – time-limits require to be considered. If a claim is not in time, a tribunal therefore has to consider whether time should be extended on the usual just and equitable principles. In Harvey at Paragraph 312.04 it is stated that, in order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary to examine the case as set out in the original application to see if it provides a ‘causative link’ with the proposed amendment (see Housing Corporation v Bryant [1999] ICR 123.

2.6 I could accept that, in relation to the proposed harassment claim, there was some basis for the contention by Ms Jones that it was more in the nature of a re-labelling, as set out in the Harvey classification, since it arose out of the same facts. In light of the factual matters, as identified, even with the proposed reasonable adjustment claim, one could also recognise many links to the said facts. However, in relation to both proposed amended claims, I accept there would also will require to be further factual matters and issues addressed, not least in relation to the issue of disability itself. On balance, not without some hesitation, I have concluded that both the proposed amendments fall within the third category – namely they are both ‘new’ claims. I accept they are not totally unconnected with the original claims, as set out above, and the necessary causative link has been shown. Indeed, as set out in Evershed v New Star Asset Management [2009] UKEAT/0249/09, the Employment Appeal Tribunal (in a judgment subsequently approved on appeal in relation to such matters) confirmed the principles set out in Selkent that, when exercising its discretion to grant an amendment, the tribunal is required to take into account all the circumstances and the relevant factors and, in particular, these include the nature of the amendment (substantial/minor), the applicability of time-limits, where relevant, and the timing and manner of the application but the paramount consideration remains, as referred to by Mummery J in the Selkent case, namely:-

“The paramount considerations are the relevant injustice and hardship in refusing and granting an amendment.”

(See further New Star Asset Management v Evershed [2010] EWCA Civ 870 and Enterprise Liverpool Ltd v Jonas and Others [2009] UKEAT/0112/09.)

However, as seen in Ali v Office of National Statistics [2004] EWCA Civ 1363 ‘the balance of injustice and hardship ground’ was held to be little different if at all to ‘the just and equitable ground’ which applies in relation to extension of time in discrimination claims.

2.7 I am satisfied both these proposed amendments are major amendments. However, I am not satisfied, if leave is granted, that there is any real prejudice to the respondent save that it will require to defend two further additional claims (see also later). I accept both claims are out of time and time has to be extended on just and equitable grounds; but as seen in Ali this involves similar issues, to the requirement to balance, as set out in Selkent, the respective interests of the parties, in relation to hardship and injustice, if the amendment is granted or refused. I do not discount that to extend time for a claim on just and equitable grounds is not automatic and is the exception rather than the rule (see further Robertson v Bexley Community Centre [2003] IRLR 434). In determining whether to exercise my discretion, on the balance of hardship/injustice and/or just and equitable grounds, there were two matters which required to be considered closely.

Firstly, although the claimant did not give any evidence at this hearing it is apparent from her claim form she prepared her claim following advice from the Equality Commission. Not surprisingly, given potential issues of privilege, the nature of that advice is not known. If a claim, pursuant to the 1995 Act had been advised, I think it would have been included by the claimant, given her said reference to advice from the Commission in her claim form. After she instructed solicitors in or about July 2013 and counsel had consulted with her in advance of the discrimination Case Management Discussion in September 2013, the issue of a claim, pursuant to the 1995 Act for failure to make reasonable adjustments was referred to at the Case Management Discussion on 23 September 2013, as set out in the Record of Proceedings; and subsequently was formalised in the letter of 9 October 2013. Somewhat surprisingly, it was not until this hearing that the further proposed claim of harassment, pursuant to the 1995 Act was raised. There clearly has been some delay in bringing these issues to a head; but it would appear it was not until September/October 2013 (and this hearing, in relation to the proposed harassment amendment), that the claimant has had the necessary advice from her legal representatives to enable her to consider bringing any such claims pursuant to the 1995 Act.

As Underhill P said in Evershed v New Star Asset Management [2009] UKEAT/0249/09 at Paragraph 33:-

“It is not the business of the tribunals to punish parties (or their advisers) for their errors. In very many, perhaps most, cases where permission is given to amend the pleading, the party in question could, if he had been sufficiently careful, have got it right first time round.”

In a decision relating to the issue of extension of time to bring tribunal proceedings on just and equitable grounds, albeit in a different context, the failure of a legal adviser to enter proceedings in time was held not to be visited upon the claimant, otherwise the respondent would be in receipt of a windfall (see Chohan v Derby Law Centre [2004] IRLR 685). This claimant brought her original claim in time after consulting the Equality Commission and not long after doing so she instructed solicitors; and therefore I think it is hard to criticise her for any failures to bring her proposed amendments at an earlier date.

Significantly, in my view, in deciding whether to exercise my discretion and to give leave to amend the claims to include the claimant’s claims of failure to make reasonable adjustments and/or harassment, pursuant to the 1995 Act, I have considered in some detail the subsequent decision of the Court of Appeal in Evershed ([2010] EWCA Civ 870). This was a claim of ordinary unfair dismissal and the application to amend was to include a claim of automatic unfair dismissal on the grounds the claimant had made a qualifying protected disclosure (ie a whistleblowing claim). It was not disputed this was a ‘new claim’. Central to the decision by the Court of Appeal (and indeed the EAT), given there was overlap in the facts, was the issue whether the amended claim required ‘wholly different evidence’ and the extent this could length the hearing and/or require additional investigation/enquiries/ interlocutory notices, etc. Each case is on its own particular facts. I have reached the conclusion that, since this was a claim of unfair constructive dismissal which focused, as seen in the identified factual issues, on the application of the respondent’s sick absence procedures in the context of her health issues and necessary sick leave and how those matters related, if at all, to her resignation, I am not satisfied that the proposed amendment, in relation to the reasonable adjustment claim, requires, therefore, wholly different evidence and/or will unduly, if at all, extend the hearing or require much further, if any, investigation/interlocutory notices etc. In relation to the proposed harassment claim, these concerns are of even less importance, as the claimant relies on the same facts she is relying on in relation to her sexual harassment claim. I do accept that the issue of disability, which is not admitted by the respondent, will potentially add some further time to the hearing and/or may give rise to the necessity for further investigation/interlocutory notices. However, since the medical issues, albeit in the context of the constructive unfair dismissal claim, were already in issue and the respondent would have had knowledge of the claimant’s health issues, operation etc and her sick lines for any such absence, this does not seem to me to be a major difficulty, which would have been the case if such matters were not already in issue.

2.8 In the circumstances, taking all the above matters into account I am satisfied the balance of hardship and injustice ground, as seen in Selkent, and/or the just and equitable ground requires me to grant both amendments in favour of the claimant. I therefore make the orders, as set out above. In view of the decision to grant leave to make the said amendments, a further Case Management Discussion will require to be held on:-

17 December 2013 at 9.30 am;

for me to make such further case-management directions/orders as may be necessary, including amendment of the claimant’s witness statements, service of further interlocutory notices and replies thereto, revised timetable for witness statements, revised Notices of Hearing, etc.

3.1 Following the Case Management Discussion on 23 September 2013 and the claimant’s representative’s letter of 9 October 2013 and the respondent’s representative’s reply dated 16 October 2013, the tribunal, in accordance with the directions made at the Case Management Discussion issued to the parties and their representatives, a relevant Notice of Hearing of the pre-hearing review to determine, on 22 November 2013, the claimant’s application to amend her claim to the tribunal. The Notice, dated 6 November 2013, was sent by the tribunal by first class post to both the claimant and the claimant’s solicitor. At the pre-hearing review on 22 November 2013 there was no appearance at the hearing by the claimant or the respondent’s representative. As set out in the Record of Proceedings of the said hearing, dated 26 November 2013, the pre-hearing review was unable to proceed in the absence of the claimant or the claimant’s representative and, following application by counsel, on behalf of the claimant, who had been instructed at short notice I granted his application to postpone the pre-hearing review to 6 December 2013. The respondent’s representative made an application for costs, following the granting of the postponement; but I decided that, although I was minded to make such an Order on the basis of the information then before me, I should give the claimant’s representative, as set out in the said record, a further opportunity to make any objections/representations in relation to the making of such an Order. In addition, I made an Order that the respondent’s representative should inform the claimant’s representative, in writing, the precise sums sought by the respondent’s representative for costs, on foot of any Order for Costs.

By letter dated 27 November 2013, the respondent’s representative provided to the claimant’s representative a schedule of costs in the sum of £1,089.17 plus VAT. The respondent’s representative confirmed, at this hearing, that if any Order was to be made by the tribunal, Value Added Tax was not required to be ordered, following the decision in Raggett v John Lewis Plc [2012] UKEAT/0082/12. I am satisfied in the absence of any challenge by the claimant’s representative, the sums claimed by the respondent’s solicitor in the sum of £339.17 (£174.17 and £165.00) properly reflected the times of her attendance and the hourly rate claimed of £110.00 per hour were in accordance with the Taxing Master’s letter of 4 April 2011 and the well-known authority of Donaldson v EHSSB [1997] NI 232 and the issue of uplift.

In relation to the respondent’s counsel’s claim for £750.00, I am not satisfied it reflected the fact that much of the sum claimed did not reflect that the preparation work carried out by him for the earlier hearing would be relevant and material to the resumed hearing and any fee claimed by him would have to properly reflect that. I consider a proper fee, in the circumstances, for counsel would be in the region of £250.00. Thus, subject to what is set out below, any claim for costs would be in the region of £590.00.

3.2 The application for costs was made by the respondent pursuant to Rules 38 – 41 of the Rules of Procedure and, in particular, under Rule 40(1) which provides:-

“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.”

It was not disputed that, in relation to such an application for costs arising from a postponement, the tribunal’s discretion to award costs does not require the tribunal to first ascertain whether the claimant or his representative had conducted the proceedings otherwise unreasonably (see Rule 40(3)) (see Ladbroke Racing Ltd v Hickey [1979] IRLR 273). Although this first stage is not required to be established for such an Order, the principles, subject to that, in relation to the exercise of the discretion remain the same. In a recent decision, I have reviewed all the relevant principles/authorities, in relation to Orders for Costs by the tribunals, in the case of Bailie v Newry & Mourne District Council [Case Reference No: 14/13 FET] recorded in the Register on 22 November 2013, and I have had regard to them when determining this matter. In doing so, I also took into account the well-known principle that to order costs in the tribunal is the exception rather than the rule but also the judgment of Girvan LJ, in the case of Peifer v Castlederg High School and Another [2008] NICA 99, when he emphasised a tribunal is required to give effect to the terms of the overriding objective when it exercised any power given to it under the Rules of Procedure which includes the power to order costs (see also further the judgment of Mummery LJ in the case of Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255).

3.3 As stated previously, the claimant and his solicitor were not present at the commencement of the pre-hearing review on 22 November 2013, as set out in the Notice of Hearing dated 6 November 2013, which had been sent to both by the tribunal in a letter by first class post on 6 November 2013. As set out in the Record of Proceedings of 22 November 2013 the claimant’s representative, and again at this hearing, maintained he had never received this Notice of Hearing from the tribunal. The claimant did not appear at this hearing; but the claimant’s representative maintained, without any other evidence, the claimant also had not received the Notice of Hearing.

Subsequently by letter dated 11 December 2013, and before this decision had been issued, the claimant’s solicitor wrote to the Office of the Tribunals enclosing an affidavit from the claimant in which she confirmed she had not received, by post, the Notice of Hearing dated 6 November 2013 and had not been able for unspecified health reasons to attend the pre-hearing review on 6 December 2013. The respondent’s representative was given the opportunity to make further submissions in relation to the said affidavit before this decision was issued but indicated he had no further relevant submissions to make in the circumstances.

Whilst I accept it is not unknown for letters to fail to be delivered by Royal Mail, I am increasingly finding this reason being relied upon by parties and their representatives, but about which there is no other proof. Tribunals for good and practical reasons (see also White Book) normally use first class post and not other methods of postage, eg Recorded Delivery. It never fails to surprise me what correspondence is said not to have been delivered in contrast to what was delivered. Whilst I could expect one of the said letters to have gone astray, for the two letters to have gone astray I find very difficult to accept. However, in view of what was said by the claimant’s solicitor at the hearing on 6 December 2013 and now the claimant’s affidavit, I have to accept that this is one of those unfortunate cases where both Notices of Hearing were not delivered by Royal Mail. I have not therefore taken into account that the Notices of Hearing were sent by the tribunal to the claimant and her representative. However, significantly, I find it most surprising that, although the potential for the listing of a pre-hearing review had been foreshadowed in the Record of Proceedings of the Case Management Discussion on 23 September 2013 and subsequently the claimant’s representative had made in his letter of 9 October 2013 an application for an amendment to which the respondent had objected, by letter dated 16 October 2013, he made no enquiries to ascertain from the tribunal when the pre-hearing review was to be arranged and/or the status of his client’s application. In the circumstances, the claimant’s representative should have been expecting to receive from the tribunal a Notice of Hearing to determine the application for leave to amend the claimant’s claim and, in the absence of same, relevant enquiries should have been made. This was all the more important given the substantive hearing of the unamended claim had already been listed for hearing on 15 – 17 January 2014, with a timetable for witness statements by the claimant to be exchanged by 15 November 2013 and orders for replies to discovery notice by 16 October 2013. Indeed, as seen previously, none of these matters had been attended to by 22 November 2013 and required to be the subject of the said ‘Unless Order’. Further, there was no evidence that, in the period between the Case Management Discussion on 23 September 2013, the application for leave to amend on 9 October 2013 and the respondent’s objection thereto on 16 October 2013 and the date of the hearing on 22 November 2013 of contacts between the claimant and her solicitor and/or vice versa about what was happening in relation to her application for amendment. There was a particular urgency to resolve the application, given the date for the substantive hearing of the unamended claim, as set out above. I think the above clearly illustrates a regrettable lack of enquiry and of proper attention and focus on the claimant’s application to amend her claim. If there had been, the claimant and/or his representative would certainly have ascertained the date of the pre-hearing review in good time and the postponement application would not have been necessary. The respondent’ representative sent a letter enclosing a trial bundle and e-mail dated 18 November 2013, which also referred to the date of hearing of the pre-hearing review on 22 November 2013. The claimant’s representative could not give any satisfactory explanation why it was not received by him, in circumstances where his e-mail system has been found to be working satisfactorily. If he had been aware of e-mails from Worthingtons, on other occasions, going into spam mail, as he suggested, I would have thought he should have taken extra care to frequently check same. The e-mail was sent correctly addressed to his own e-mail address and not a general office address. Certainly, and not without some significance, the respondent’s representative was not notified of a misdelivery, which might have been expected. No relevant records of e-mail traffic at the relevant time to this address to illustrate the failure to receive this e-mail and/or what other e-mail traffic to this address was taking place at the relevant time were produced in evidence. As set out above, a hard copy of the bundle was sent by post on 18 November 2013 and received on 21 November 2013 by the claimant’s representative, but had not been dealt with until 22 November 2013, after the time when the hearing was due to have commenced. It enclosed the relevant respondent’s bundle for the hearing and, although it was a somewhat bulky document, it appears it was not able to be dealt with on the day of receipt by anyone in the office. If it had been, once again, the difficulty that arose should have been avoided and any costs incurred by the respondent’s representative would, hopefully, have been able to be avoided. I do understand the pressures on any solicitor; but I am surprised such post is not opened, in such a litigation practice, on receipt, for example, by a Secretary to ensure there is nothing contained therein which requires urgent and immediate attention. The above further illustrates the said lack of focus and attention to the claimant’s application to amend her claim. In the exercise of my discretion, I have concluded an Order for Costs is appropriate in the circumstances arising from the said postponement.

3.4 I was provided with limited evidence of the claimant’s ability to pay any Order for Costs. I was informed the claimant remains on benefits in the sum of £180.50 per week; but I was given no information on any savings, mortgage, etc and/or any other contribution to the ‘household bills’.

It was recognised by both representatives that any Order for Costs I might make has to be made against the claimant and not her representative.

Doing the best that I can on the limited information before me I have decided that the appropriate Order for Costs to be paid by the claimant to the respondent is £200.00; and I so order.

Chairman:

Date and place of hearing: 6 December 2013, Belfast

Date decision recorded in register and issued to parties: