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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Robinson v Brian Knox, Clyde Markwell, Ju... [2013] NIIT 02314_12IT (06 November 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/2314_12IT.html
Cite as: [2013] NIIT 02314_12IT, [2013] NIIT 2314_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2314/12
CLAIMANT: Timothy Robinson
RESPONDENTS: Brian Knox, Clyde Markwell, Judith Hamilton
t/a Knox and Markwell Architects
DECISION ON COSTS
It is the unanimous decision of the tribunal that the claimant has acted unreasonably in conducting the proceedings which resulted in a decision in this matter recorded in the register and issued to parties on 5 August 2013. Accordingly, the tribunal is awarding the sum of £3,000.00 as a payment towards the costs of the respondents involved in defending those proceedings.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Ms M Galloway
Mr F Murtagh
Appearances:
The claimant once more appeared in person and represented himself with some assistance from his father-in-law, Mr R Miller, acting as a “MacKenzie friend”.
The respondents were represented by Mr T Warnock, Barrister-at-Law, instructed by Hewitt and Gilpin Solicitors Limited.
SOURCES OF EVIDENCE
1. The claimant gave evidence on his own behalf concerning his ability to pay any Costs Order and this was taken into account by the tribunal in considering how much that Order should be.
THE CLAIM FOR COSTS
2. This matter came before the tribunal by way of a letter dated 9 August 2013 from Hewitt and Gilpin Solicitors on behalf of the respondents. For a reason to which we will refer later in this decision when considering the claimant’s behaviour, we are setting out in full both the text of the letter of 9 August 2013 and the letter attached to it dated 15 March 2013:-
“Office of Industrial Tribunals &
Fair Employment Tribunal
DX 4235 NR
BELFAST 27
Dear Sirs
Re: Timothy Robinson v Brian Knox, Clyde Markwell and Judith Hamilton t/a Architects Knox & Markwell
Case Ref: 2314/12IT
We refer to the above matter and the decision which was issued on 5 August 2013.
All claims against the Respondent were dismissed in the decision.
It is submitted that the hearing of this case was protracted as a result of the behaviour of the Claimant in and about the presentation and running of his case. The case lasted nine days in total and it is submitted that such a time frame was excessive in the circumstances and was as a direct result of the claimant’s conduct of his case.
Further, it is the view of the Respondent that the redundancy consultation process conducted by the Respondents which was the subject of the proceedings was such that the claim itself was unreasonable, vexatious and frivolous in the circumstances.
A generous “Calderbank” offer was made prior to the hearing given the economic implications to the Respondent of running the case but the offer was rejected by the Claimant. A copy of this offer is enclosed for review.
During the hearing, when asked by the Chairman, the Respondents reserved their position on costs pending the outcome of this case but at this stage, the Respondents would, in light of the above matters, wish to proceed with an application for costs of the defence of the case.
A copy of the account of Hewitt and Gilpin Solicitors and of Mr T Warnock, Barrister-at-Law (is enclosed for your information).
We look forward to hearing from you in relation to this application as soon as practicable.
Yours faithfully
Hewitt and Gilpin”
3. Letter dated 15 March 2013 sent by e-mail from ngowan@hewittandgilpin.co.uk to the claimant.
“Mr Timothy Robinson
By email only
Without prejudice save as to costs
Dear Sir
Re: You v Brian Knox, Clyde Markwell and Judith Hamilton trading as ‘Architects Knox and Markwell’ (1) and Stuart Hamilton (2)
Case No: 2314/12
We write further to the above named matter.
We have fully reviewed the Claimant’s case and our client’s continuing Defence. We are of the opinion that your claims stand no reasonable prospect of success. We hold this view due to the following:-
(1) The Respondent acted in a fair and reasonable manner in accordance with its statutory obligations. The Respondent informed and consulted with the affected employees in a thorough, comprehensive and meaningful way. The outcome was not predetermined as alleged and the decision to make anyone redundant was very much a last resort. The selection criteria were lawful and the data and scorings assessed and applied in a legitimate and reasonable manner. Statutory dismissal procedures were complied with, and the decision to select you for redundancy at the start of the process, was in our view fair and reasonable in all the circumstances.
(2) You have been paid in excess of your contractual entitlements for accrued untaken holiday pay.
(3) You have no contractual entitlement to back payments of pension contribution.
We have notwithstanding our view of the merits of your claim, been authorised to offer you compensation of £5,000.00 (five thousand pounds) on the basis of non admission of liability by all Respondents, confidentiality about the terms and existence of those terms of settlement, full and final settlement of all claims between the parties, and your agreement not to pursue any of your claims before the Tribunal. This agreement would be processed as a conciliation agreement through the Labour Relations Agency.
Should you refuse this offer and the matter proceed to hearing, we believe that there are legitimate grounds for the Respondent to seek an order for costs against you. As you may be aware, the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 enable a Tribunal to order a party, or representative, to meet the costs incurred by another or to make a contribution to those costs up to £10,000 (or more, if the amount is not specified and left to be assessed by a Court).
If the Respondents are found successful in their defence of this case by the Tribunal making an order for the dismissal of all claims or alternatively a judgment of less than or equal to the amount offered in this letter, then we reserve the right to produce a copy of this letter in order to fix you with the costs of the hearing.
In light of the above, we would hope that this offer will receive a favourable response.
We look forward to hearing from you.
Yours faithfully
Hewitt and Gilpin”
4. By letter dated 18 March 2013 from the claimant to the Solicitors for the respondents this offer was refused.
THE RELEVANT LAW
5. The relevant law relating to when a Costs Order may be made and the amount of that Order is found in Rule 40 and Rule 41 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 hereinafter referred to as the Regulations. Regulation 40(2) states as follows:-
“(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 a 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.”
6. Regulation 41 states as follows:-
“(1) The amount of a Costs Order against the paying party shall be determined in any of the following ways -
(a) the tribunal may specify the sum which the paying party must pay to the receiving party provided the sum does not exceed £10,000.00;
(b) the parties may agree on a sum to be paid by the paying party to the receiving party and if they do so the Costs Order shall be for the sum so agreed;
(c) the tribunal may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be paid being determined by way of detailed assessment in a County Court in accordance with the scales prescribed by County Court rules for proceedings in the County Court as shall be directed by the order.
(2) The tribunal or Chairman may have regard to the paying party’s ability to pay when considering whether it or he shall make a Costs Order or how much that order should be.
(3) For the avoidance of doubt, the amount of Costs Order made under paragraph (1)(b) or (c) may exceed £10,000.00.”
7. At the outset counsel for the respondents indicated that he was applying under Rule 41(1)(a) for the tribunal to specify the sum to be paid and that the respondents were abandoning that part exceeding the sum of £10,000.00 of the costs of the respondents contained in the Bill of Costs dated 22 May 2013 which was also attached to the Hewitt and Gilpin letter of application to the tribunal dated 9 August 2013. Mr Warnock also confirmed that such amounts in the bill relating to Value Added Tax were also being abandoned for the purposes of the application against the claimant.
8. The law relating to Preparation Time Orders is contained in Rules 42 to 46 of the Regulations.
9. The tribunal also considered the following Case Law:-
Peifer v Castlederg High School and Western Education and Library and another [2008] NICA 49
In this case, Girvan LJ stated as follows:-
“Tribunals should be encouraged to use their increased costs powers set out in the Rules of Procedure to penalise time wasting or the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents.”
Although the Employment Appeal Tribunal in England in the case of AQ Ltd v Holden UKEAT/0021/12 stated that “the threshold test” does not differ depending on whether a litigant is or is not professionally represented. It was accepted by Mr Warnock that this difference is relevant and an allowance should be made for inexperience. Girvan LJ said in the case of Peifer that conduct of a case by a non legally represented party can potentially cause another party to “suffer from delay”, incur increased costs, and be exposed to unstructured and at times irrelevant cross-examination.
The cases of Kopel v Safeway Stores Plc [IRLR 753] and Raggett v John Lewis Plc [UKEAT/0082/12] are authorities for the proposition that an unreasonable refusal of a pre-hearing settlement offer can lead to costs being awarded if the tribunal considered that the refusing party has acted unreasonably.
The case of McPherson v BNP Paribas [London Branch] [2004] EWCA Civ 569, [2004] ICR 1398 is authority for the proposition that in making a Costs Order on the ground of unreasonable conduct there is no requirement to show particular costs have been incurred as a result of specific conduct identified as unreasonable. In this case Mummery LJ stated:-
“The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring [the receiving parties] to prove that specific unreasonable conduct by [the paying party] cause particular costs to be incurred.”
In deciding to have regard to the paying party’s ability to pay the tribunal has followed the judgment of the Employment Appeal Tribunal in the case of Jilley v Birmingham and Solihull Mental Health NHS Trust UKEAT/0584/06, [2008] ALLER (D)35(Z) adopting the following dictum:-
“… it should set out its findings about ability to pay, what impact this has on its decision whether to award costs or on the amount of costs, and explain why. Lengthy reasons are not required. A succinct statement of how the Tribunal has dealt with the matter and why it has done so is generally essential.
Therefore if the Tribunal has decided that it will have regard to the paying party’s ability to pay, it has to take into account what it has found to be the paying party’s ability to pay.”
THE CONTENTIONS OF THE RESPONDENTS ABOUT THE UNREASONABLE CONDUCT OF THE CLAIMANT
10. These were as follows:-
“(i) the bringing and conducting of a claim of unfair dismissal in circumstances in which there was no material basis for the claimant’s contention that the dismissal was unfair procedurally or substantively;
(ii) the bringing and conducting of a claim of a failure to pay backdated pension contributions in circumstances in which there was no credible evidence to show that there was an agreement that pension contributions should be backdated to 2007;
(iii) continuing to pursue his claims after a generous compromise offer was made in writing which additionally set out that the claimant’s claims had no reasonable prospect of success and the basis for such a contention;
(iv) in and about the nebulous and unfocused cross-examination of the respondents’ witnesses (which elicited guidance on a number of occasions by the tribunal followed by several warnings from the tribunal);
(v) by reason of the sustained prolixity in and about the presentation of the case at hearing;
(vi) despite repeated guidance from the tribunal, failing to focus on the key issues in the case, namely whether the dismissal and the key parts of the procedure were within the “band of reasonable responses”;
(vii) doggedly pursuing the contention that there was a failure to consult and/or a failure to notify early enough in the circumstances in which it was patently clear that there was extensive genuine consultation and early notification;
(viii) pursuing an unduly lengthy, forensic and unnecessary attack on the usefulness of timesheets to the practice in circumstances in which the Tribunal’s discretion was limited (as made known to the claimant on several occasions)”.
THE CONTENTIONS OF THE CLAIMANT CONCERNING HIS ALLEGED UNREASONABLE BEHAVIOUR
11. (a) The process is intended to be accessible to the layperson. Where one party can afford a legal team and the other cannot, that other will be unfairly disadvantaged in a battle of unequal arms.
(b) Financial and emotional hardship had been suffered by the claimant and his family caused by the redundancy after 17 years of service in a workplace in which there were relationships and friendships involved. This service was awarded by the statutory minimum redundancy payment with no token paid for his efforts to give good and loyal service.
(c) This costs application was causing the claimant additional stress. The case had caused the claimant to expend considerable time in preparation and he said that much of that was due to the way the respondents managed the case.
(d) These factors hindered his attempts to mitigate his loss. He had expected he would be successful.
(d) The claimant contended that he had tried to act reasonably seeking guidance through the tribunal’s procedures and from the Citizens Advice Bureau and the Labour Relations Agency. He made his best efforts to respond to the guidance offered by the panel. Eventually, when a timetable was imposed, he complied with it.
(e) One party does not have to pay simply because it loses the case.
(f) His hardship and limited means were to be considered.
(g) The time taken was caused by the respondents’ presentation of their case. They called three witnesses and that had a direct bearing on the length of the case with a recall of Mr Hamilton adding to the length of the hearing. The calling of these witnesses meant that he had a reasonable prospect of success.
(h) The admission of liability further substantiated the merits of his case.
(i) He had made numerous efforts to achieve an informal resolution of the case including conciliation through the Labour Relations Agency which went without a response from the respondents.
(j) His rejection of a settlement offer was not unreasonable as he had set out reasonable grounds for the rejection including that the terms were unworkable. If the respondents considered their offer to be generous, their approach, timing, choice of legal advisor and method of running the case was disproportionate and gave rise to unduly protracted proceedings. The respondents’ late application for a postponement gave rise to an additional amount of unnecessary preparation time. For all of these reasons the claimant indicated that the interests of justice required the tribunal to consider making an award for preparation time in his favour. (The tribunal noted that not only had Mr Robinson not given any prior notice of his intention to make such a claim to the respondents but also had not committed the claim to writing so that it could be properly considered.)
THE QUESTIONS BEFORE THE TRIBUNAL
12. These are:
a. Was the claimant, in bringing his proceedings, misconceived?
b. Did the claimant behave unreasonably in his conduct of the proceedings?
13. The claimant considered that he was fully justified in bringing the case as an employee of 17 years standing he had been unfairly treated in being selected for redundancy. He considered that his knowledge of the day-to-day workings of the respondents’ business was a strong basis upon which to mount a claim that he had been unfairly selected for redundancy.
14. While the legal representatives of the respondent made it clear that they considered that his claim had no reasonable prospect of success, the claimant did not accept that. Certainly, whilst all three claims were dismissed, the claim about holiday pay entitlement was dismissed only after the respondents had accepted legal advice on the calculation of the entitlement and paid it in full during the hearing. We do not consider that the facts were so clear-cut that it could definitely be the case that the claimant was going to have his remaining two claims (unfair selection for redundancy and backdated pension claims) dismissed. It was necessary for the tribunal to take a substantial amount of evidence in relation to both of these claims. The use of a matrix in redundancy procedures is becoming ever more frequent. This is, however, a complex method of assessment encapsulating a number of criteria. Not only do the criteria in themselves have to be such that persons looking at the assessment cannot say that no reasonable employer would have selected such criteria, but also that the application of the criteria itself has to be done reasonably. For all of those reasons we do not consider that we can characterise the claimant’s claims as misconceived.
WAS THE BEHAVIOUR OF THE CLAIMANT UNREASONABLE IN THE CONDUCT OF HIS CASE?
15. To answer this question, we are going to break down the issue into a number of sub issues as follows:-
(1) The claimant’s perception of the procedures.
(a) The claimant contended that the tribunal procedure was supposed to be accessible to the lay person and that he felt “vulnerable”. In noting that the claimant was at first a self-representing person, and at a later stage in the proceedings a non-legally represented person, the tribunal at all times took care to explain the procedure to the claimant and indeed to Mr Miller, his MacKenzie friend/representative. An explanation of the process of taking evidence was given to the claimant at the very outset of the hearing. When legal issues became apparent, the claimant was given copies of the relevant cases, in particular the case of British Aerospace v Greene [1995] IRLR 437, and time to read and to digest the principles established by the cases. Moreover, Mr Warnock kept his objections to the claimant’s cross-examination to the very minimum. It was often the case that the claimant’s questioning was of highly questionable relevance. For example, the tribunal was unable to permit the claimant to continue with his line of questioning to establish the physical characteristics of the building in which the respondents operated their practice and the whereabouts of the office of Mr Hamilton.
(b) It appeared to the tribunal that the claimant was well aware of the effect of the overriding objective, but did not acknowledge by his conduct of the case that it could apply to him as well. To assist the claimant to understand the parameters of the procedure the tribunal provided the claimant with a copy of the decision of the Court of Appeal in the case of Rogan v South Eastern Health and Social Care Trust to read and be informed about the need for cross-examination to be relevant.
(2) Did the behaviour of other parties in the case cause the claimant’s unreasonable behaviour?
(a) By this submission the claimant was implying that the respondents should not have been legally represented. It was the choice of the claimant to be self-representing/ non-legally represented. The tribunal has no power to prevent a party seeking to have legal representation.
(b) Neither do we consider that it was disproportionate for the respondents to call three witnesses and for Mr Hamilton to be recalled to give further evidence about the computer system, the need for which had arisen due to the claimant’s lines of questioning. We do not consider that in the light of the Rogan case, the claimant can really advance this submission as the witnesses called in this case were fully in line with recommendations given in the Rogan case. One of the claimant’s complaints was that late claims were made by the respondents in their response to the tribunal. We do not have any sympathy for the view that this caused any difficulty to the claimant. There was a satisfactory amount of time in the process to allow the claimant to investigate these claims with the respondents and their legal representatives.
(c) Another example of the professional behaviour of the representatives for the respondents is to be found in the correspondence concerning their offer of £5,000.00 to settle the case and the costs warning contained in that correspondence. The claimant criticised this correspondence for being late and unworkable, yet he did not direct this to any authority which specified time-limits for the making of settlement offers. It was fully appropriate for the respondents to warn the claimant of their intention to claim costs in the event of their success. Had this correspondence not been in place, the respondents and their representatives would have been subject to criticism by the tribunal. What was notable about the behaviour of the respondents is that when they found that they had wrongly computed the claimant’s holiday entitlement by taking advice from their legal representatives in the course of hearing, they at once tendered a cheque in settlement.
(d) In summary, the tribunal did not agree that the respondents’ approach, timing, choice of legal adviser and method of running the case was disproportionate and had given rise to unduly protracted proceedings.
(e) The tribunal did not see any evidence to suggest that the conduct of the proceedings by the respondents was late and excessive characterised by failures to respond to the claimant’s requirements with “full specificity”. On the contrary there was evidence of an effort to comply with the claimant’s requirements even to the point of producing additional documents in the early stages of the hearing to facilitate an acceptance by the claimant of the trial bundles.
(3) The behaviour of the claimant in the conduct of the proceedings.
(a) We consider that we have commented sufficiently on the first three examples of the unreasonable conduct of the claimant and will focus on examples 4 to 8 of the respondents’ contentions concerning the claimant’s conduct.
(b) The cross-examination
The tribunal considers that it is fair to describe the claimant’s cross-examination as nebulous and unfocused. Having made due allowance for the claimant’s lack of knowledge and experience by giving repeated guidance and often to a great extent reshaping the claimant’s questions to make them comprehensible to witnesses, the tribunal had to stop the cross-examination of the claimant on points it considered of no relevance, directing him to move on.
Co-operation
(c) The tribunal is unable to agree that the claimant was uniformly co-operative. On one occasion he tried to avoid explaining the relevance of his cross-examination and on more than one occasion when directions were given upon upholding the objections of Mr Warnock, the claimant simply ignored them and continued to ask the disputed questions. Hypothetical questions were a feature of the cross-examination, as were preambles to questions and sometimes statements at the witnesses which contained no questions at all. If “prolixity” means long-windedness and verbosity, then the tribunal considers that these were characteristics of the claimant’s cross-examination. The claimant’s allegation that he did not understand that he would not be allowed to refer to his notes in giving his own evidence when not only had the procedure been explained at the outset of the case and none of the respondent witnesses had done so, was a further example of the claimant’s lack of co-operation with the tribunal. This was compounded by an attempt to cross-examine the second respondent witness in concert with Mr Miller after this had been expressly forbidden at the commencement of the hearing when Mr Hamilton was called. In the view of the tribunal the claimant compounded his lack of co-operation by alleging that this prohibition was only expressed to be in relation to the first witness Mr Hamilton. It was necessary for the recording of the proceedings to be checked. It was only after this check was made that this allegation was withdrawn by the claimant.
(d) Despite being warned that the approach required by the case law was to consider the question of whether or not a reasonable employer would have used the completing of timesheets as a criterion, the claimant continued to try to attack the use of timesheets as a criterion in the redundancy matrix by every means possible. His attempts to discredit the system were varied and resulted in the tribunal requiring further evidence concerning exactly how the timesheets were used to give the scoring for the matrix. The central plank of the claimant’s criticism of the use of timesheets was that it took no account of varying patterns of completion. The tribunal heard much about the claimant’s use of his diary to record time and how it would only take him a morning to bring his timesheets up-to-date if he were asked to do so. For the reasons set out in the main decision, the tribunal saw no unfairness in the use of this criterion by the respondents. The tribunal considered the claimant might seek to characterise it as an unfair criterion as its use advertised his wholesale lack of compliance with the time recordings/billing element of the practice.
(e) The claimant insisted (unreasonably) that the tribunal should consider the various versions of the minutes of consultation in the redundancy process and persisted in doing so when the tribunal cautioned him that it was not helping the tribunal to decide the case. The end result of this policy on the part of the claimant was that this perusal of all the versions of the minutes showed the tribunal how much time and care the respondents had expended in the consultation process.
(f) This selection of examples of the claimant’s unreasonable behaviour did cause (when taken in the round) a delay in the hearing process.
(g) Perhaps the most salient example of the unreasonable nature of the claimant’s behaviour was to be found in his attempt to mount an application for preparation time against the respondents during the hearing arranged to hear the respondents’ application for costs. No prior notice of any sort had been given by the claimant of his intention to do so. As set out in the early part of the decision, the respondents’ intention to seek costs, and the basis upon which it did so, was well documented in correspondence. A bill of costs was attached. No particulars of any sort were available from the claimant in respect of this claim for preparation time. The claimant indicated that he would have to check his diary to extrapolate details of his claim. Once again the tribunal infers that the claimant despite everything that had transpired in the main hearing, was inexplicably unable to understand that the overriding objective applied to him as well as to the respondents. The tribunal also considered that this was a belated and clumsy attempt to wrong foot the respondents. The claimant withdrew the application once the tribunal directed that it would reconvene to consider the application for preparation time on a separate day after written particulars had been provided to the respondents and an opportunity given to them to consider them. For the avoidance of doubt, this has not been taken account of in the decision to award costs of £3,000 to the respondents. It is referred to for the purpose of contrasting the behaviour of the claimant with that of the respondent’s representative
THE ABILITY OF THE CLAIMANT TO PAY
16. As the claimant had not provided any documentary evidence of his ability to pay the tribunal asked him to give oral evidence on this point so that it could be considered by the tribunal in the context of the overall costs application. Unanimously, the tribunal found the claimant’s evidence and answers under cross-examination to be evasive. He readily gave evidence that he was seeking to establish himself as a self-employed architect and could anticipate gross earnings of approximately £15,600.00 accruing in the short to medium term.
17. The claimant was considerably less than forthcoming in answering questions about his other assets. It transpired that the claimant’s house has a nominal mortgage affecting it and that he had, over the years, accrued an amount of in and around £50,000.00. Inexplicably, he was unsure and had to be pushed on this point by Mr Warnock. He was putting this towards the cost of building a new house. These plans had been postponed. The claimant was similarly wary about giving any details of his monthly outgoings other than to say that they amounted to somewhere between £2,000.00-£3,000.00 per month.
18. The claimant contended very strongly that to take account of his savings would be punitive and unfair. In the case of Lodwick v Southwark London Borough Council [2004] EWCA Civ 306, the purpose of awarding costs is to compensate the party in whose favour the award has been made. As the claimant was contending that it would be unreasonable and unfair for the tribunal to seek to render him liable for any part of the respondents’ costs and more than that it would be punitive, the tribunal was prepared to reconvene to consider in particular whether or not having reference to the claimant’s savings in assessing the award would be punitive to the claimant rather than compensatory to the respondents. After further consultation with Mr Miller it was submitted that the claimant was seeking to attach an “emotional” rather than a “legal” definition to the word “punitive” and did not wish to avail of the opportunity to argue the point further in front of the tribunal.
19. Mr Warnock submitted that this case fell within the principles established in the case of Shields Automotive Ltd v Ronald Greig which was a decision of the Employment Appeal Tribunal of 15 July 2011. In this case, Mr Greig had been found to have acted unreasonably in bringing and conducting his proceedings before the Employment Tribunal. In assessing the claimant’s means the Employment Tribunal had erred in taking account only of his income and outgoings when assessing his liability. No regard was had to his capital. The Employment Appeal Tribunal confirmed that if regard is to be had to means then the tribunal is required to look at the claimant’s whole means including his capital resources.
20. In reaching its decision to award the sum of £3,000.00 as a contribution to compensate the respondents for the costs they incurred in defending the claim, the tribunal has had regard to the economic situation in which the respondents currently operate. There are signs of improvement in the housing market but further improvement in the economy generally is uncertain. This was a case in which a reasonably long established architectural firm was forced to make redundancies. The claimant is setting up as a self-employed architect in an economic climate that could not be described as anything other than difficult. The construction industry has suffered a downturn from which it may take longer yet to recover.
21. Setting up a professional services firm involves considerable financial resources. It may well be that the claimant’s assessment of his fee income may not be realised and he may have to exist on his savings for some time to come.
22. This does not detract from the considered opinion of the tribunal which was that the claimant behaved unreasonably in many aspects of the conduct of his claim. The nature of this behaviour has been fully set out above and taken overall it had the effect of elongating the hearing. Due allowance was made for the claimant’s status as a self-representing/non-legally represented person, but once that was made, the tribunal considers that his behaviour in extending the hearing was unreasonable and it would be unfair for the respondents to bear the whole of their costs bill. Based on the foregoing paragraphs, we consider that an award of £3,000.00 should be made in favour of the respondents to reflect the claimant’s unreasonable behaviour.
Chairman:
Date and place of hearing: 13 September 2013, Belfast.
Date decision recorded in register and issued to parties: