Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:     263/14

 

 

CLAIMANT:            Monika Krzewska  

 

 

RESPONDENT:      Foyle Food Group 

 

 

DECISION ON COSTS

 

The unanimous decision of the tribunal is that it would not be appropriate to make a costs order against the claimant in the circumstances of this case pursuant to Rules 40 (2) and (3) of the Industrial Tribunal Rules of Procedure, contained in Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and the respondent’s application for a costs order is dismissed.

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge Bell 

 

Members:                        Mr J Hughes

                                        Mr J Kinnear         

 

 

Appearances:

 

The claimant was represented by Ms Anna McLarnon, Barrister-at-Law, instructed by MacDermott McGurk and Partners, Solicitors.

 

The respondent was represented by Mr Barry Mulqueen, Barrister-at-Law, instructed by O’Hare Solicitors.

 

1.               The tribunal, following hearing of a preliminary time point raised on the dates fixed for the substantive hearing on 1 and 2 May 2014, in a decision recorded in the Register and issued to the parties on 5 June 2014 decided that it did not have jurisdiction to hear the claimant’s claims of unfair dismissal, for notice pay, arrears of pay and holiday pay in view of the relevant provisions regarding the time limits for presenting her claims.

 

2.               By email letter dated 26 June 2014, the solicitors for the respondent requested a hearing on the issue of costs incurred by the respondent in defence of the proceedings based on the findings of the tribunal and that the claimant was misconceived.

3.               By letter dated 2 July 2014 the solicitors for the claimant in response to the respondent’s application raised three points in summary as follows:-

 

(i)              No costs warning letter was sent at any stage prior to or during the matter proceeding at hearing.

 

(ii)             The time point was not raised by the respondent at any stage prior to hearing, including at a prior case management discussion.

 

(iii)            No application was made for a pre-hearing review on the time point.

 

4.               The respondent’s representative at hearing confirmed that his costs application was pursuant to Rule 40 (2) and (3) of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 based on the claimant in bringing the proceedings or she or her representative in conducting the proceedings had acted otherwise unreasonably and or in the alternative that the bringing or the conducting of the proceedings by the claimant had been misconceived.

 

THE ISSUES

 

5.                The issues before the tribunal for consideration were:

 

(i)          Pursuant to Rule 40 (3) of the Industrial Tribunal Rules of Procedure contained in Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005,  is the tribunal of the opinion that:

 

-             The claimant in bringing the proceedings, or she or her representative has in conducting the proceedings, acted unreasonably?

 

        Or,

 

-             The bringing or conducting of the proceedings by the claimant has been misconceived.

 

                         If so,

 

(ii)        Does the tribunal consider it appropriate to exercise its discretion to make a costs order against the claimant in the circumstances pursuant to Rule 40 (2) of the 2005 Rules?

 

SUBMISSIONS

 

6.               Mr Mulqueen referred to the case of Philip Boomer V 1. Northern Ireland Public Service Alliance 2.  Brian Campfield 3. Alison Millar 4. Kevin McCabe [2013] NIFET (CASE REF:57/11) as helpfully setting out relevant case law and the two stage test to be applied by the tribunal, and relied in particular on the findings of fact by this  tribunal in its decision at paragraphs 16, 19, 20, 21 and 25, the encouragement of LJ Girvan in Peifer V Castlederg High School and Western Education & Library and Another [2008] NICA 49 that tribunals in order to give effect to the terms of the overriding objective when exercising any power given to it under the Rules of Procedure should use their increased costs powers to penalise time wasting or the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents and also Harvey on Industrial Relations and Employment Law at Paragraph [1047], Section P1 which sets out:- ‘‘Considering whether to award costs in respect of a party’s conduct in bringing or pursuing a case which is subsequently held to lack merit, the type of conduct that will be considered unreasonable by a tribunal will obviously depend on the facts of the individual case and there can be no hard and fast principle applicable to every situation.  In general, however, it would seem that the party must at least know or to be taken to have known that his case is unmeritorious (see Cartier’s Superfoods Ltd V Laws [1978] IRLR 315)…’’ Mr Mulqueen contended that it was clear that the claimant knew she would have to show an explanation why her claim was not presented in time, that her failure to do so meant that she was always going to fail and continuing was clearly unreasonable behaviour and misconceived.

 

7.               Ms McLarnon expanded upon the three points raised in the respondent’s correspondence of 2 July 2014 and whilst acknowledged that the time point would have had to ultimately be determined by the tribunal in any event  put that it was not raised by the respondent despite being aware of the costs of a two day hearing and having every opportunity to do so, most notably at a case management discussion almost three weeks prior to hearing, and the claimant’s representative were not aware of the time point until raised by the respondent in discussion a couple of days before the hearing.  Referring to Paragraph [1087] of Harvey Ms McLarnon submitted that where a respondent is minded to seek an order for costs on ground that the claim is misconceived it is usually advisable for him to send a costs warning letter to the claimant pointing out the deficiencies in the claim and giving him the opportunity to take stock of his position and withdraw the claim before any other costs are incurred.  Also, referring to the cases of Vaughan V London Borough of Lewisham & Others [2013] UK EAT/0534/12 and Paul Mc Burney V Bemac Engineering Ltd [2014] NIIT (CASE REF:512/13), Ms McLarnon put that every case is fact sensitive and that a very high threshold applies to applications on an unreasonable or misconceived basis, also that in the Boomer case where a cost order was made not only was a costs warning letter sent but an application made for a pre hearing review.  In particular Ms McLarnon contended that as set out by Harvey at Paragraph [1103] the purpose of an award for costs is to compensate the party in whose favour an award is made and not to punish the party ordered to pay the costs, in this case the respondent’s application is that they be compensated but that they failed to raise the issues at any point, had they done so they may have succeeded at a pre hearing review or at very least raised the issues between the parties and allowed the claimant time to consider her position and take stock of the situation.

 

THE LAW

 

8.               Rules 40 (2)  and  (3) of the Industrial Tribunal Rules of Procedure, contained in Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, provide:-

 

        ‘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) 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.’

 

9.               Reasonableness is a matter of fact for the tribunal.

 

10.           The tribunal has a duty to consider making a costs order where a party’s conduct falls within the description set out under Rule 40 (3) but its decision whether then to make an award is discretionary and cannot be fettered by case law.

 

11.           Under Regulation 2 of the 2005 Regulations the interpretation of ‘misconceived’ includes having no reasonable prospect of success.

 

12.           How the amount of a costs order shall be determined is set out in Rule 41 of the Industrial Tribunal Rules of Procedure.

 

APPLYING THE LAW

 

13.           The tribunal accept that the claimant knew of the three month time limit for presenting her claim however it is not clear that she was aware prior to the hearing date that it was not presented on her behalf within that time scale and the consequent significance of an explanation for the delay.  The tribunal is not persuaded that the claimant knew that she would have to show an explanation why her claim was not presented in time and her failure to do so always meant her case was going to fail and so continuing with her case was clearly unreasonable and misconceived so as to give rise to the discretion to award costs. The tribunal do however consider that the claimant’s representatives should have known after they became aware of and took stock of the time point that if no explanation were given at hearing for the delay between signature and presentation of the claimant’s claim that there was no reasonable prospect of success and that to proceed with the conduct of the case thereafter in those circumstances was unreasonable and would give rise to the discretion to award costs.  However, in particular in the absence of the issue of a costs warning letter and given the timing of when the respondent first raised informally between the parties the time point as a deficiency in the claimants case, in discussions only some two days before the substantive hearing, and formally before the tribunal on the morning of the substantive hearing, allowing time for the matter be taken stock of and the claimant’s position to be considered the tribunal are not of the opinion that the effect of the claimant’s continuing of the proceedings following the deficiency being raised by the respondent unduly and unfairly increased the costs falling on the respondent ,or,  was such that  the claimant or her representatives should in the circumstances be penalised for time wasting and do not on consideration of the all circumstances of what happened in this case consider it appropriate to exercise its discretion to make an award of costs against the claimant to compensate the respondent in respect thereof.

 

CONCLUSION

 

14.     The tribunal does not consider that it would be appropriate to award costs against the claimant in the circumstances of this case and dismisses the application for a costs order in favour of the respondent pursuant to Rules 40 (2) and (3) of the Industrial Tribunal Rules of Procedure, contained in Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

 

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing: 29 August 2014, Belfast.

                   

 

Date decision recorded in register and issued to parties: