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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Simonaityte v Michelle Wan, t/a Poppy Smith ... [2013] NIIT 01622_12IT (09 April 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1622_12IT.html
Cite as: [2013] NIIT 1622_12IT, [2013] NIIT 01622_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1622/12
CLAIMANT: Karolina Simonaityte
RESPONDENT: Michelle Wan, t/a Poppy Smith Coffee Shop
DECISION ON COSTS
The unanimous decision of the tribunal is that the claimant’s claim is dismissed.
The tribunal, under Rule 38 of the Tribunal’s Rules of Procedure contained in Schedule One to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, Orders the claimant to pay costs to the respondent as follows:-
(a) Solicitor's costs at a total figure of £1,356.84 (plus any Value-added Tax applicable);
(b) Counsel’s fee at £250.00 (no Value-added Tax applicable).
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Mrs V Walker
Mr E Miller
Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Ms M Mulholland, Barrister-at-Law, instructed by K J Morgan, Solicitors.
REASONS
1. The Issues for Determination
In this matter, the claimant had claimed sex discrimination and unfair dismissal. The respondent defended these claims. The matter was listed for hearing at 10.00 am on 17 January 2013, notices of the hearing having been duly sent to the respective parties dated 20 December 2012. There was no evidence before the tribunal that the claimant had changed address nor that any communications since the initiation of the complaint had been sent to the claimant but had been returned undelivered, thereby suggesting any addressing or delivery error or that any of such communications had not been effectively received by the claimant. The tribunal heard an application by Counsel appearing on behalf of the respondent that the claimant’s claims ought properly to be dismissed as having no merit whatsoever and also an application for costs was made on behalf of the respondent. Accordingly the tribunal had to determine these matters.
2. The Tribunal’s Findings of Fact
In consequence of the documentation before it, and in the light of the respondent’s representative’s submissions, the tribunal determined the following material findings of fact, relevant to the issues requiring to be determined:-
The claimant had made her claim to the tribunal by means of a claim form dated 24 August 2012, this being received by the Office of Tribunals on that date. By response dated 19 September 2012, received on that date, the respondent denied that the claimant’s claims had any validity.
A Case Management Discussion was held by the tribunal in the matter on 18 October 2012, on which occasion the claimant was represented by Mr J Mackin, Solicitor; an interpreter was also present. The respondent was represented by Ms Hughes, Solicitor. There is no need to recite in this decision the details of the Record of Proceedings pertaining to that Case Management Discussion, save to say that the tribunal, on that occasion, made clear directions to the parties in respect of management of the case thereafter and also recorded somewhat caustic observations concerning the unnecessary expenditure which had been incurred in arranging for an interpreter to be present whose services were indeed not required.
A further Case Management Discussion was then held on 22 November 2012 on which occasion the claimant was neither represented nor was she in attendance. Again, the respondent was represented by a Solicitor, but this time by teleconferencing. It was confirmed at that latter Case Management Discussion that the claimant’s Solicitor had come off record on 13 November 2012. The claimant had been duly notified of the listing of the Case Management Discussion by letter dated 16 November 2012 sent to her by the Office of Tribunals. No communication whatsoever had been received from the claimant; there was no apparent reason preventing her personal attendance or some manner of representation at the Case Management Discussion. In the absence of the claimant at that Case Management Discussion, the tribunal had proceeded to make case management directions. These directions were subsequently communicated to the respective parties, including the claimant, by the tribunal in writing.
It appears thereafter that the respondent’s representatives made what were, by any reasonable assessment, proper endeavours to communicate with the claimant at the notified address. The respondent's representatives engaged with the process; they played their part in endeavouring to progress the case in accordance with the case management directions that had been made by the tribunal (insofar as that endeavour was indeed possible in the absence of any co-operation or engagement being forthcoming from the claimant). The respondent’s representative provided details to the tribunal of the forgoing work and of any endeavours made; these do not need to be specifically recited. The tribunal was certainly assured that reasonable and proper endeavours had been made by the respondent’s representatives to play a part in assisting the tribunal with management of the case, and in furtherance of the overriding objective. Notwithstanding that, the respondent’s side met with no co-operation or assistance whatsoever from the claimant. In short, the claimant did nothing whatsoever to engage with the respondent’s representatives nor with the Office of Tribunals in order to address any of the issues that had been directed by the tribunal.
It was submitted on behalf of the respondent (and this submission was accepted as being factually correct by the tribunal) that, having issued these proceedings and having furnished some initial instructions to her Solicitors, the claimant then effectively declined to have any dealings with the tribunal or with the opposing party in consequence of the specific directions that had been made by the tribunal with a view to progressing the case and in order to assist in clarification of issues and the general efficient and proper management of the case.
Further to this, the tribunal noted a submission that the claimant herself was truly of the view that there was no real merit whatsoever in the case. There was however no specific proof in regard to that contention as to the claimant's subjective state of mind, nor any source of corroboration of the submission contained in any of the evidence. Rather, there was a dearth of information concerning the reason for the claimant's non-engagement with the process. In the absence of any conclusive proof of the factual basis for this submission, it is difficult for the tribunal to make any proper determination regarding the claimant’s true motivation or purpose. Nonetheless, whatever motivation might have existed (or lack of it), the claimant's absence from any engagement in the proceedings beyond the early stages (where it has to be reasonably assumed that the claimant was kept fully informed regarding the status of the proceedings and the stage reached) has properly to be taken into account by this tribunal. The tribunal did not need to determine any further material findings of fact for the purposes of reaching its decision in the case.
3. The Applicable Law
The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 at Schedule One provide for the Tribunal’s Rules of Procedure (“the Rules”). material to the matter. Rule 38 of the Rules provides to the tribunal the general power to make costs orders; Rule 40 makes provision regarding relevant considerations. Rule 38 and Rule 40, insofar as relevant, provide specifically as follows:-
General powers to make costs orders
38.— (1) Subject to paragraph (2) and in the circumstances listed in rules 39, 40 and 47 a tribunal or chairman may make an order (“a costs order”) that –
(a ) a party (“the paying party”) make a payment in respect of the costs incurred by another party (“the receiving party”);
(b) - .
(2) A costs order may be made under rules 39, 40 and 47 only where the receiving party has been legally represented at the hearing under rule 26…..
(3) For the purposes of these Rules “costs” shall mean fees, charges or disbursements incurred by or on behalf of a party in relation to the proceedings.
(4) -
(5) -
(6) -
(7) A party may apply for a costs order to be made at any time during the proceedings. An application may be made at the end of a hearing, or in writing to the Office of the Tribunals….. .
(8) -
(9) No costs order shall be made unless the Secretary has sent notice to the party against whom the order may be made giving him the opportunity to give reasons why the order should not be made. This paragraph shall not be taken to require the Secretary to send notice to that party if the party has been given an opportunity to give reasons orally to the chairman or tribunal as to why the order should not be made.
(10) -
When a costs order may be made
40.— (1) -
(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) -
4. Costs Orders made under the foregoing statutory provisions are discretionary. The Court of Appeal in England gave helpful general guidance to tribunals in the case of McPherson -v- BNP Paribas [2004] IRLR 558. The tribunal should have regard to the nature, gravity and effect of the unreasonable conduct as being factors relevant to the exercise of this discretion. In respect of the concept of “vexatious” mentioned in Rule 40 (3) above, the definition of that word was clarified in the case of Marler (ET) Ltd -v- Robertson [1974] ICR 72. The word applies to a situation where any claimant knew that there was no substance to any claim and that the claim was, in effect, bound to fail, or if the claim on the face of it was so manifestly misconceived that the claim could have no prospect of success and it might be deemed frivolous and an abuse of the procedure of the tribunal to pursue it. If the claimant thus brought a hopeless claim, not with any expectation of recovering compensation but out of spite, to harass the employer or with some other improper motive, the action might properly be deemed vexatious and an abuse of procedure. In respect of the concept of claims brought “unreasonably”, as mentioned in Rule 40 (3) above, even if a party’s case might be otherwise deemed meritorious, if the way in which the complaint was handled by the party (or by the advisor) falls into the category of “unreasonable”, that might be sufficient to “ trigger” the costs sanction. The concept of “reasonableness”, or otherwise, is properly to be determined by looking at the overall conduct of any party whose conduct is being scrutinised by the tribunal. However, the receiving party does not have to demonstrate that any particular item of expense was actually caused by the deemed unreasonable conduct (see again McPherson).
THE TRIBUNAL’S DETERMINATION
5. Examining all of the foregoing, it is very clear that there has been a course of conduct on the part of the claimant which was initiated by the bringing of this claim. That was then followed by what must be fairly categorised as an abject failure on the part of the claimant to engage in any manner with the legal process following initial representation at the first Case Management Discussion held on 18 October 2012. This conduct or default has resulted, indeed, in the respondent having to go to considerable lengths to manage the claim in a proper fashion. This was achieved by properly and reasonably engaging solicitors and Counsel, and by endeavouring to follow the tribunal's directions and case management procedures. This is so notwithstanding that the claim is without merit, which lack of any inherent merit is reinforced by the claimant’s failure to pursue the case beyond the initial stages. In reaching that conclusion, the tribunal accepts the respondent’s representative’s submissions that, upon the determined facts, the claim was without merit and stood no reasonable prospect of success.
6. Accordingly, the tribunal is of the opinion that the claimant has acted in a manner which can properly be characterised as “unreasonable” and even, perhaps and to an extent, “vexatious”. It is certainly the case that the epithet “unreasonable” is entirely appropriate. To the extent to which the term “vexatious” has been defined by the Court of Appeal in Marler (ET) Ltd -v- Robertson, the claimant's conduct in this case must also be properly described as falling within that categorisation. The tribunal is of the view, on balance, that the claimant more probably than not knew that there was no substance to the claim and that the claim was in all probability bound to fail, or that the claim had no reasonable prospects of success. It therefore seems that the claimant brought what is in effect a hopeless claim. It is difficult to discern precisely the claimant’s full motivation, in the absence of specific information, but there certainly exists the possibility of some improper motive underlying the bringing of the case. Looking at all of this and the proper and fair exercise of the discretion available, the case is an appropriate one for the making of a Costs Order.
7. Upon conclusion of the oral hearing, the tribunal required the representatives for the respondent to assist the tribunal by setting out in writing the specific details of the costs sought. This was requested to be done by reference to such matters as time expended, hourly rate, and work conducted in reference to the matter. Written details were duly provided by email sent 28 January 2013 to the tribunal by the respondent's representatives. Upon receipt, the tribunal made arrangements for the details of the respondent's costs, as claimed and communicated in the e-mail of 28 January 2013, to be transmitted to the claimant. It is perhaps worth setting forth in this decision the text of the tribunal's communication to the claimant in the letter dated and sent to the claimant on 31 January 2013, which reads as follows:-
“The Chairman of the tribunal has directed that this letter be sent to you to draw to your attention some important matters which require your immediate attention.
The hearing of the above case took place on Thursday 17 January 2013. You were not present nor were you represented at that hearing, having been properly notified by the Office of Tribunals concerning the hearing date. Your case was struck out and dismissed, subject to a costs application, and a written decision, with reasons, shall be issued shortly in regard to that.
One specific issue which emerged during the course of the hearing relates to the question of the respondent's costs. The tribunal has power to award costs against a party to proceedings and in favour of the other party in certain circumstances where the tribunal is satisfied that the conduct of a party to proceedings includes conduct that is unreasonable, frivolous or vexatious.
At the tribunal hearing an application was made to the tribunal by the respondent's representative for an Order for costs to be made against you. The tribunal directed that the respondent's representative should provide to the tribunal full details of any costs claimed in the matter. This information has now been provided to the tribunal by the respondent's representatives.
The respondent's solicitor's costs are indicated at a total figure of £1,356.84, based upon time stated to have been expended and correspondence entered into, this being charged on an itemised basis. A copy of the correspondence from the respondent’s solicitor, giving an itemised breakdown of the costs, is attached for your information. It is understood that value-added tax at a rate of 20% shall be chargeable upon that figure, in addition. Counsel’s fee is indicated at a figure of £250.00 (no value-added tax).
The purpose of this letter is twofold. Firstly, the tribunal wishes to afford to you an opportunity to write to the tribunal to give your views concerning whether costs ought properly to be awarded against you and concerning the amount of costs that have been claimed in this matter by the respondent's representatives. It may also be possible to have an oral hearing in this matter concerning the issue of costs, but you would need to specifically request that and to give reasons why an oral hearing is required in place of written submissions. Secondly, the tribunal has discretion to take into account your means (in other words your personal financial circumstances) in determining the matter of any costs which might be awarded in this case.
You are entitled to contact the Office of Tribunals in writing, at the above address, giving the case name and reference number, within 14 days of the date of this letter. You may wish to put forward written argument or submissions concerning the matter of any award of costs in favour of the claimant and against you, concerning the amount of any such costs, and concerning any personal financial circumstances which you might wish the tribunal to take into account in determining the matter.
Please note that if you fail to contact the tribunal within the period of 14 days as above stated, the tribunal shall proceed to make any determination and any consequent Order without further reference to you. Please note that any costs Order made by the tribunal may be enforced against you in the same manner as a court judgement.”
8. The period of 14 days provided for a response has expired, without any response from the claimant to this letter. Accordingly it is appropriate that the tribunal may now proceed to determine the issues in the case, including the issue of costs, in the absence of anything further from the claimant.
9. Firstly, in short, the case is entirely without merit and must accordingly be dismissed for that reason.
10. Secondly, in regard to the application for costs, the tribunal has determined that the claimant has in conducting the proceedings, acted not just unreasonably but also vexatiously. Having been afforded an opportunity by the tribunal to make a submission to the tribunal concerning whether costs ought properly to be awarded against the claimant; concerning the amount of costs that have been claimed in this matter by the respondent's representatives; and regarding any factors properly to be taken into account in respect of the claimant's means, the claimant has failed in any manner to respond to the invitation afforded to her. Thus, the tribunal has nothing to set against the respondent's submission.
11. Examining the details of the work conducted, as provided by the respondent's solicitors, including the time stated to have been expended, the correspondence entered into, and the charging information identified upon an itemised basis, the tribunal observes nothing in any of this information provided indicating anything inappropriate or unreasonable in the professional fees indicated. Further to that, Counsel’s fee as indicated appears to the tribunal to be fair and reasonable. There is nothing to suggest that the claimant either does or does not have specific means which properly and fairly require to be taken into account in the assessment. As the respondent's representative’s costs indicated appear to be both fair and reasonable in regard to both Solicitor and Counsel, and as there is nothing upon which the tribunal could properly determine that there is no basis for the award of costs, nor indeed that the costs claimed ought to be abated in some manner and for some proper reason, this leads the tribunal to the conclusion that the full costs claimed are appropriate. Accordingly, the tribunal's determination is that the entirety of the costs in question ought properly be paid by the claimant as paying party to the respondent as receiving party.
12. This being the case, the tribunal, under Rule 38 of the Rules, Orders the claimant to pay costs to the respondent as follows:-
(a) Solicitor's costs at a total figure of £1,356.84 plus any Value-added Tax applicable;
(b) Counsel’s fee at £250.00 (no Value-added Tax applicable).
Chairman:
Date and place of hearing: 17 January 2013, Belfast.
Date decision recorded in register and issued to parties: