Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   460/14

 

 

 

CLAIMANT:                      Mark Graham

 

 

RESPONDENT:                Montgomery Refrigerated Ltd

 

 

 

DECISION ON COSTS

The unanimous decision of the tribunal is that costs amounting to £5,450.00 are awarded to the respondent in this matter.

 

Constitution of Tribunal:

Vice President:                Mr N Kelly

Members:                        Mr A Burnside

                                        Mr J Pollock

 

Appearances:

The claimant was represented by Mr G O’Neill.

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by McCartan Turkington Breen, Solicitors.

 

1.       The tribunal heard submissions from Mr O’Neill and Mr Doherty.  The tribunal asked Mr O’Neill whether he wished to call any evidence and, in particular, whether he wished to call Mr Graham to give evidence.  He declined.

 

2.       The claimant put forward a written argument in relation to costs.  The respondent put forward an oral argument.

 

3.       The claim had originally come on for hearing on 28 July 2014 and had been dismissed at being out of time.  That decision was the subject of a review application and the review application was dismissed on 3 October 2014.

 

4.       Under Rule 40(2)(3) a tribunal shall consider making a Costs Order where, in the opinion of the tribunal, a party bringing a claim has acted unreasonably and where the tribunal considers it appropriate to make such an Order. 

 

Decision

 

5.       Turning to the first part of any costs application the tribunal is satisfied that the claim of unfair dismissal brought by the claimant was unreasonable from beginning to end.  This was a claim where a cross-channel lorry driver had been dismissed from his employment after being banned from two of the major ports after a dispute with Harbour Police.  Nevertheless, the tribunal will focus solely, for the purposes of this decision, on the time-limitation point.

 

6.       This claim was obviously and substantially out of time.  No grounds had been presented, either at the original hearing on 28 July 2014 or at the review hearing on 3 October 2014, which could possibly have grounded any extension of the statutory time-limit to allow the claim to proceed.

 

7.       The tribunal is therefore satisfied that the first part of the test for a Costs Order has been met.  The claimant knew that his claim had been made outside the statutory time-limit and that there were no grounds for any extension of that time-limit.  He pursued the claim regardless.

 

8.       Turning to the second part of the test, ie whether the tribunal considers that it is appropriate to make a Costs Order, the tribunal has been referred, at some length, to the proceedings of the Case Management Discussion on 8 May 2014.  At that Case Management Discussion, no direction had been made for a pre-hearing review to separately determine the time-limitation issue or for a Deposit Order             pre-hearing review.  It is clear that any such pre-hearing review had to be balanced against the overriding objective and the need to save the time and costs of parties.  Particularly where the substantive hearing was likely to be a relatively short hearing, the need or the advisability for a separate pre-hearing review, either in relation to time-limitation or a Deposit Order, is a matter for determination by the individual Employment Judge hearing these matters.  It is clear that at that Case Management Discussion neither the respondent nor the Employment Judge would have been aware of the precise nature of the medical or perhaps other type of evidence which would have been brought forward by the claimant to attempt to persuade the tribunal to extend time within the limits of the statutory provisions.  Equally clearly, the Case Management Discussion record wrongly used particular terminology in referring to a ‘discretion’ and to a ‘reasonable prospect of success’ in this context of extending time.  There was no unfettered ‘discretion’ to extend time and the ‘reasonable prospect of success’ test related to a Deposit Order pre-hearing review on the merits of the case.  However, it is equally clear that the Employment Judge at the Case Management Discussion felt that on the evidence before him at that stage there may well have been an arguable case for an extension of time.  That is not a view that could have legitimately have been held by the claimant.  It was clear to everyone that the time-limitation issue, had not been waived by the respondent, even if it could have been waived by the respondent.  Any such waiver would have been ineffective since it was a matter going to jurisdiction of the tribunal and had to be determined by the tribunal itself.  Time-limitation was not an issue determined at the Case Management Discussion.  That would have been entirely outwith the jurisdiction of the Employment Judge hearing that Case Management Discussion.

 

9.       It simply cannot be the case, as now argued by the claimant, that once the Secretary of the Tribunals (an administrator) allocated a number to this particular claim the claimant had been entitled to assume that the claim had been accepted and that time-limitation was no longer an issue.  It had been raised in the response form by the respondent and it had been specifically raised by the respondent at the Case Management Discussion.  It had obviously been a live issue for the substantive hearing and a question going to the jurisdiction of the tribunal.

 

10.     Despite that position and being advised by a tribunal representative, the claimant failed to produce any evidence at the hearing of 28 July 2014 which could have grounded any application to extend time.  He also failed to produce any convincing evidence at the review hearing on 3 October 2014.

 

11.     He referred to a journal article on sleep deprivation, to a GP letter referring to a visit on 30 October 2013 (outside the relevant period) and to an undated GP's note.  He also referred to a fitness for work certificate which was again related to a specific and very limited period.  No other evidence has been produced and none of the evidence which he has produced could in any way support an argument that it had not been practicable or feasible for the claimant to have lodged a claim within the statutory time-limit or any stage before he eventually did so. 

 

12.     The claimant accepts that during the relevant period, ie the period between the dismissal and the lodgement of the claim, he corresponded with the respondent and that he spoke to a solicitor in Belfast on an unspecified date.  The claimant could and should have been aware of his obvious failure to adhere to the statutory                 time-limits and he could and should have been aware that this was an obvious live issue for determination at the substantive hearing.

 

13.     The claimant points to limited financial means and to the fact that he was not professionally legally represented.

 

14.     While recognising the tribunal does not automatically, or indeed frequently, issue Costs Orders, this is a case involving an entirely unreasonable position having been adopted and pursued throughout by the claimant in bringing a claim which was obviously outside the statutory time-limit and where he knew that he was not producing any evidence which could possibly ground any extension of that                   time-limit.  The tribunal is also conscious of the statement of Lord Justice Girvan in the case of Peifer  v  Castlederg High School in which he advised tribunals to be more prepared to use Costs Orders where wholly unreasonable claims had been brought in their jurisdiction.  This seems to be an entirely appropriate case for a Costs Order.  While Costs Orders are not to be punitive and are meant to be simply compensatory, it is absolutely clear that on the time-issue alone, this claim was groundless and had always been completely groundless.  Despite that, the claimant continued to pursue this matter and to cause increased legal costs to the respondent.

 

15.     The claimant’s representative was invited to challenge the bill put forward by the respondents’ firm of solicitors.  The claimant’s representative declined to do so and stated that his only arguments were arguments in relation to the advisability of a Costs Orders.

 

16.     There was no dispute between the parties that VAT was not recoverable in these circumstances.  The tribunal determines that the fee put forward by the solicitor and counsel for the respondent was entirely reasonable.  It comprised (leaving out VAT) 23 hours @ £150.00 per hour from a solicitor which amounted to £3,450.00 and £2,000.00 from the respondent’s counsel.  That in total amounts to £5,450.00 and that is the amount of the Order.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing:         3 October 2014, Belfast

 

 

Date decision recorded in register and issued to parties: