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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McAtamney v Oasis Dental Care Ltd Vivek Tohani BDS [2013] NIIT 00958_12IT (03 October 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/958_12IT.html
Cite as: [2013] NIIT 00958_12IT, [2013] NIIT 958_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 958/12
CLAIMANT: Julie Elaine McAtamney
RESPONDENTS: 1. Oasis Dental Care Ltd
2. Vivek Tohani BDS
DECISION ON COSTS
The unanimous decision of the tribunal is that the claimant is ordered to pay costs to the first respondent in the sum of £4,000.00 inclusive of VAT.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Members: Mr J Kinnear
Mrs T Madden
Appearances:
The claimant did not appear and was not represented.
The first respondent was represented by Mr Allan, Barrister-at-Law, instructed by DAC Beachcroft LLP.
1. The claimant failed to appear at the costs hearing having advised by e-mail on 18 September 2013 that she believed that the hearing was listed for 26 September 2013. The claimant had received a letter from the tribunal and two e-mails prior to the hearing advising of the listed date of 19 September 2013. In addition, the first respondent on 13 September sent a bundle of documents for the costs hearing and referred to the date of hearing being 19 September 2013. In view of this, the Chairman directed that contact be made by telephone and e-mail with the claimant on the morning of the hearing to advise that the hearing would proceed but that the time of hearing would be put back to 11.00 o’clock to give her a chance to attend if she so wished. Alternatively, the claimant was given the option of attending by way of telephone conferencing facilities or of providing written submissions. There was no response from the claimant to the e-mail on the morning of the hearing and the hearing proceeded at 11.00 am in her absence.
2. The first respondent’s application was that the pursuit of the claimant’s claim after receipt of the response form was misconceived and/or unreasonable. In the alternative, Mr Allan argued that the claimant’s continued pursuit of the claim after the first respondent’s letter of 11 March 2013 was misconceived and/or unreasonable. In that letter Mr Allan’s instructing solicitor set out the weaknesses in the claimant’s claim, set out the costs to that date, and warned of the risk of further costs if she pursued it to hearing.
3. The basis of the respondent’s application was set out by letter of 10 June 2013 to the claimant and the claimant responded, essentially by reiterating the points which were aired in the substantive case.
THE LAW
4. The tribunal’s power to award costs is contained in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The general power is outlined at rule 38. The two specific rules invoked by the respondent were rule 40(2) and rule 40(3) which state as follows:-
“40(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) applies. 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.
40(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 the conducting of the proceedings by the paying party has been misconceived.”
5. “Misconceived” is defined at Regulation 2 as follows:-
“misconceived includes having no reasonable prospect of success”.
6. The tribunal’s jurisdiction in relation to costs is outlined in Harvey on Industrial Relations in Employment Law Division T Practice and Procedure at paragraphs 1026-1080. Harvey suggests that the test is more than a simple objective assessment of whether the claimant knew or ought to have known that his case lacked substance or merit. The tribunal must look at not just the proceedings themselves but the claimant’s conduct in bringing or conducting the proceedings.
7. The tribunal must go through a two-stage process in determining whether to award costs. Firstly a tribunal must determine whether the claimant in bringing the proceedings or in conducting the proceedings acted unreasonably or whether the bringing or conducting of the proceedings by the claimant has been misconceived. The second stage of the process is for the tribunal to decide whether or not it is appropriate to exercise its discretion to award costs in the case.
8. One of the leading cases in relation to the exercise of the discretion is the McPherson case where the Court of Appeal held that there was no necessity for a causal link between the party’s unreasonable behaviour and the costs incurred by the receiving party. The Court stated:
“In exercising its discretion to award costs, the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct. However, the discretion is not limited to those costs that are caused by or attributable to the unreasonable conduct. The unreasonable conduct is a pre-condition of the existence of the power to order costs and it is also a relevant factor to be taken into account in deciding whether it makes an order for costs and the form of the order, but that is not the same as requiring a party to provide that specific unreasonable conduct caused the particular costs to be incurred.”
9. Costs Orders are exceptional in nature and this was emphasised by Sedley LJ in the case of Gee v Shell UK Ltd 2003 IRLR 83:-
“It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers, and that – in sharp distinction from ordinary litigation in the UK – losing does not ordinarily mean paying the other side’s costs”.
10. The case of Jilley UK EAT/0584/06/DA emphasises the importance of taking account of the claimant’s means although a lack of means to pay is not a bar to a costs order being made.
11. Mr Allan referred us to the EAT decision of Dunedin and in particular paragraph 25 in which Lady Smith states as follows:-
“There is a flavour, in the Tribunal's second judgment, of sympathy for the claimant as a lay person and for the difficulty she might have in paying any award. With all due respect to the Tribunal, these matters are beside the point. The issue was not whether a lay person could reasonably have been expected to understand the law. It was whether she had or had not, in simple human terms, approached the essential factual matters that lay at the heart of her case honestly and reasonably. She had not done so and these are exactly the sort of circumstances where a Tribunal has a responsibility to make clear that it is quite unacceptable to cause expense to another party by bringing proceedings on that basis. Then, as to the financial burden of the award, the Tribunal is entitled, in the interests of justice, to take account of ability to pay when fixing the amount; ability to pay is not relevant when determining whether or not an award should, in principle, be made.” (Emphasis added.)
12. When considering whether a claim was misconceived or whether it was unreasonable to pursue a claim the tribunal has to be careful to acknowledge that the deficiencies in a claim may not become apparent until after the hearing has ended. In ET Marler Ltd v Roberts [1974] ICR 72 it was stated:-
“Ordinary experience in life frequently teaches us that what is plain for all to see once the dust of battle has subsided was far from clear to the contestants when they first took up arms.”
13. There is provided at Rule 41(2) that:-
“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.”
14. In the case of Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, the Court of Appeal reviewed the authorities in relation to the issue of costs under the equivalent Rules of Procedure applying in the Employment Tribunals in Great Britain. He stated:-
“39. I begin with some words of caution, first about the citation and value of authority on costs questions and, secondly, about the dangers of adopting an over-analytical approach to the exercise of a broad discretion.
40. The official words of [Rule 40] are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations. Unfortunately, the leading judgment in McPherson delivered by me has created some confusion in the ET, EAT and in this Court. I say ‘unfortunately’ because it was never my intention to re-write the Rule, or to add a gloss to it, either by disregarding questions of causation or by requiring the ET to dissect the case in detail and compartmentalise the relevant conduct under separate headings, such as ‘nature’, ‘gravity’ and ‘effect’. Perhaps I should have said less and simply kept to the actual words of the Rule.
41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by a claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submission to the Court that, in deciding whether to make a Costs Order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific cost being claimed. In rejecting that submission, I had no intention of giving birth to erroneous notions, such as that causation was a relevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.
42. In the matters of discretion an earlier case only stands as authority for what are, or what are not, the principles governing the discretion and serving only as a broad steer on the factors covered by the paramount principle of relevance … .”
15. In addition, Mummery LJ, repeated that costs are in the discretion of the Employment Tribunal and the power to order costs is more sparingly exercised and is more circumscribed by the Rules of Procedure than those of the ordinary Courts and that a costs Order is the exception rather than rule. (See paragraphs 7-9.)
16. In the case of AQ Limited v Holden [UKEAT/0021/12], the Employment Appeal Tribunal confirmed that the threshold test in Rule [35(3)] are the same whether a litigant is or is not professionally represented. His Honour Judge Richardson stated:-
“Justice requires that Tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. … Lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold test in Rule [40(3)]. Further, even if the threshold test for an Order for Costs are met, the Tribunal has discretion whether to make an Order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. This is not to say that lay people are immune from Order for Costs: far from it as the case has made clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity …”
REASONS
17. There were four CMD hearings in this case where the claimant represented herself and where the first respondent’s solicitor attended by way of telephone conferencing facilities. The dates of the CMDs were 16 October 2012, 19 November 2012, 10 December 2012 and 12 February 2013. The thrust of the CMDs was to make directions for witness statements and exchange of documents and in particular to deal with the claimant’s concerns about the whereabouts of a notebook in which she had written contemporaneous accounts of alleged comments by the second respondent.
18. The substantive hearing was listed for 15 to 19 April 2013 and, in the event, ran from 15 to 18 April 2013. The tribunal’s decision was issued to the parties on 14 May 2013 and this decision on costs should be read in conjunction with the tribunal’s decision on the substantive issues.
19. The claimant’s claim was for unfair dismissal and for disability discrimination in the form of verbal harassment by the second respondent, and she alleged direct discrimination.
20. The claimant was sacked for misconduct in relation to three prescriptions for excessive amounts of diazepam. The prescriptions involved the claimant, one of them was particularly serious and it was agreed by the parties that it, of itself, could amount to gross misconduct granting summary of dismissal.
21. We find the claimant’s claim to have been misconceived and unreasonable from the date of receipt of the response forms for the following principal reasons:-
(1) The most serious allegation involved the fabrication of details of treatment to a fictitious patient which the claimant sent to a regulatory body in response to its query about an excessive dosage of diazepam to that patient. The claimant accepted during the disciplinary hearing that the issue of the prescription for the fictitious patient was of itself serious enough to warrant dismissal. The only explanation the claimant ever gave throughout the whole process and throughout the tribunal process and at hearing was that she had made a “clerical error”. It was misconceived and unreasonable in our view for the claimant to maintain that there were grounds for her to contest her dismissal for that charge.
(2) The issues involving the second respondent and the alleged comments by him were reported by the claimant to her manager at the time and Dr Tohani apologised to her. That was the end of the matter until it was raised by the claimant during the disciplinary process against her 6 months later. She did this as a means of deflecting attention from the serious allegations against her in relation to the prescriptions. The issue of the alleged comments was clearly unconnected to the dismissal issue and it was unreasonable and misconceived of the claimant to seek to link them during her case.
(3) It was unreasonable and misconceived of the claimant to persist with the assertion that the amounts of diazepam on the three prescriptions in issue was not excessive, given that an independent regulatory body had raised serious issues about excessive dosage. It was misconceived and unreasonable for the claimant to say that her “clinical knowledge” somehow trumped the information before the employer.
22. If we are wrong that her claim was misconceived or that it was unreasonable to pursue it after the receipt of the response forms, we find that it was clearly misconceived and unreasonable for her to pursue the claim after receipt of the warning letter from the first respondent for the following principal reasons:-
(1) The letter fairly set out the deficiencies in the claimant’s case and warned her about the costs to date and the likely costs if she persisted.
(2) We found the claimant to be less than candid in her evidence on the fictitious patient prescription. We found that there were doubts over her reliability because she changed her evidence in relation to the alleged comments made by Dr Tohani. The tribunal therefore took an adverse view of the claimant’s credibility and reliability.
(3) The harassment and discrimination claims were clearly out of time as they were not linked to the dismissal. The claimant had said at one point during a CMD that she believed her dismissal was an act of discrimination. She was told that she would have to amend her claim to include that as part of her claim and she failed to do so.
(4) The claimant failed to bring her GP notes and records to support her claim that she was disabled despite the respondent requesting the notes and records and her promising to produce them after one of the CMDs. It was unreasonable for her to persist in refusing to produce her GP records to allow the respondents to inspect them, while persisting with her claim that she was disabled at the relevant time.
23. We therefore find that the claimant’s behaviour and conduct of the proceedings meets the threshold test in the relevant rules and we now turn to whether it is appropriate to award costs in this case.
24. We acknowledge that costs do not normally follow the event in tribunal proceedings and costs are not the norm in these proceedings. In this case, however, it should have been clear to the claimant from the outset that she did not “have a leg to stand on” to use a colloquial phrase. We acknowledge that the claimant was unrepresented at hearing but it was clear that she had sought advice from several sources during the course of the preparation for the tribunal hearing as she alluded to this in her application relating to time. We have made allowances for the claimant’s lack of representation at hearing and for her lack of experience in matters of this nature.
25. Given our doubts over her truthfulness we cannot say that the claimant approached the essential factual matters that lay at the heart of the case honestly and reasonably. This is the test alluded to in the Dunedin case by Lady Smith. It was not reasonable for her to persist with a case where the very serious allegation about a prescription for a fictitious patient was the key reason for dismissal and for which she had no reasonable explanation.
26. We note the medical evidence produced at the hearing (which was a GP report of the 31 October 2012) and it outlined that the claimant had depression and anxiety which appears at that stage to have been chronic. The claimant was however well able to pursue her case and argue her point at four CMDs and during a four-day hearing. The claimant was articulate and able to marshal her arguments and question witnesses during the hearing before us. We therefore have no evidence to show that her understanding or ability to act reasonably were impaired.
27. In view of the above we find that in this case it is appropriate to award costs against the claimant.
28. We now turn to the amount of costs payable. Mr Allan sought £10,000.00 costs as this is the maximum amount awardable by the tribunal. He confirmed that it was not part of his application that a higher assessed amount of costs was payable given the further expense involved in pursuing that to assessment.
29. We have a very broad discretion in relation to the amount of costs payable and we have the power in the interests of justice to take account of the claimant’s ability to pay when deciding to fix the amount. Despite being requested to do so by e-mail before the costs hearing, the claimant failed to produce any current details of her earnings and outgoings and assets.
30. The only information before us therefore is contained in the trial bundle for the substantive hearing, namely a payslip from the first respondent of 25 February 2012 showing net monthly earnings of £1,410.04; two letters from DLA of 8 March 2013 and 31 October 2012 indicating that the claimant received middle-rate care component and lower-rate mobility component and extra money because she was severely disabled; the GP letter of 31 October 2012 indicating a problem with depression and anxiety which appears to have been chronic at that time. If the claimant is working again as a dental assistant is unlikely that she is earning more than she earned with the respondent. It is also unlikely that her chronic depression and anxiety have completely resolved. The most recent DLA letter was 8 March 2013 so the claimant may still be on DLA.
31. In summary, on the information before us the claimant clearly has had mental health issues, she was on modest earnings with the respondent and may, indeed, not be earning at all at this stage and may still be in receipt of benefits.
32. Nevertheless, the costs incurred by the first respondent are substantial and they are entitled to have a sum awarded which bears some relationship to the expense incurred by them due to the claimant’s misconceived claim and her unreasonable conduct.
33. Taking account of all the factors outlined above we award the sum of £4,000.00 inclusive of VAT in respect of the first respondent’s costs.
Chairman:
Date and place of hearing: 19 September 2013, Belfast.
Date decision recorded in register and issued to parties: