Title: FAIR EMPLOYMENT TRIBUNAL
Author: irtusetup
Last saved by: joe.ury
Company: DED

THE INDUSTRIAL TRIBUNALS

CASE REF:	  780/13

CLAIMANT:		Christian Holscher	

RESPONDENT:	University of Ulster 

DECISION ON COSTS

The unanimous decision of the tribunal is that the claimant is ordered to pay costs to the respondent in sum of £5,000.00.

Constitution of Tribunal:

Employment Judge:	Employment Judge Crothers

Members:	Mr M Grant
	Mrs M Torrans

Appearances:

The claimant was present and represented himself.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law instructed by Arthur Cox Solicitors.

BACKGROUND

1.	The unanimous decision of the tribunal in the substantive case was that the claimant’s claim that he had been subjected to detriments on the ground of making a protected disclosure was out of time and that the tribunal had no jurisdiction in the matter.  It also decided that, in any event, the claim must be dismissed for the further reasons as set out in the conclusions at paragraph 8 of that decision.

2.	The claimant tried, unsuccessfully, to have the decision reviewed.  He did not appeal the decision.

3.	The respondent made an application for costs against the claimant arising out of his claim that he had been subjected to detriments on the ground of making a protected disclosure under Part VA of the Employment Rights (Northern Ireland) Order 1996.  

4.	The substantive case was heard from 9-13 and from 16-19 December 2013.  On 2 December 2013 Arthur Cox Solicitors wrote to the claimant’s Solicitors, Ward Hadaway, as follows:-

	“Dear Sirs

	Re: Dr Christian Holscher v University of Ulster
	Case Ref No: 780/13IT
	Without prejudice save as for costs

		We refer to the above matter.  Having considered our witness evidence and the prospects of your client’s claim we write to put you on formal notice at this time that if your client does not withdraw his claim this week ahead of next week’s tribunal hearing, our client will pursue your client with a claim for the recovery of our costs.

		We have advised our client that this is a reasonable course of action where your client’s claims have no reasonable prospects of success, and further, where it appears that your client is pursuing his tribunal claim in an unreasonable and vexatious manner.

		We reserve the right to refer the tribunal to the contents of this letter once these proceedings have been resolved.

		Yours faithfully

		ARTHUR COX”

THE LAW

5.	(i)		The tribunal’s power to award costs is contained in the Industrial Tribunal Rules of Procedure 2005 as amended.  Rules 40(2) and 40(3) 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) 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.  

		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 conducting of the proceedings by the paying party has been misconceived.”
	
	“Misconceived”, is defined in Regulation 2 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, as follows:-

			“misconceived includes having no reasonable prospect of success”. 

	(ii)	The tribunal was assisted by the summary of the law on costs as set out in the Industrial Tribunal case of Paul Keogh v Banbridge and District Citizens Advice Bureau (case references 458/12, 3010/11, 2973/11 and 1463/11).  Both parties had access to this decision and the tribunal does not intend to replicate in full the tribunal’s summary of the law in that case.  

	(iii)	An order for costs must be compensatory and not punitive, and is the exception rather than the rule in tribunals.  The tribunal is, however, mindful of Girvan LJ’s comments in the case Peifer v Castlederg High School and Western Education and Library Board and Another (2008) NICA 49 where he stated:- 

		“Tribunals should be encouraged to use their increased costs power 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”.

	(iv)	A vexatious claim involves in an employee bringing a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously.  (ET Marler Ltd v Robertson (1974) ICR 72).  The Court also made clear in that case that it was a serious finding to make against an applicant for it will generally involve bad faith on his part and one would expect that discretion to be sparingly exercised.

	(v)	In relation to acting unreasonably, there is no necessity for a causal link between the party’s unreasonable behaviour and the costs incurred by the receiving party (McPherson v BNP Paribas [2004] EWCA Civ 569).  As Harvey on Industrial Relations and Employment Law (“Harvey”) makes clear at P1 [1046], “unreasonable conduct includes conduct that is vexatious, abusive, or disruptive”.  Furthermore at paragraph [1075] (Harvey also states that:

			“Costs may also be awarded against a party arising out of his, or her representatives, conduct during the hearing.  The grounds of abusive and disruptive conduct speak for themselves.  But factors that might induce a tribunal to award costs on the basis of other unreasonable conduct are excessive prolixity and time wasting, unduly lengthy cross-examination of witnesses, calling unnecessary witnesses, and making outrageous and unsubstantiated allegations (which may also be a ground for a striking out ...)”.

	(vi)	In the case of Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 the EWCA held that a tribunal in exercising the discretion vested in it by Rule 40 should look at the whole picture.  At paragraph 41 of his judgement, Mummery LJ stated:-

		“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 the 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 ... from my judgement 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 costs being claimed.  In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant 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.”

	(vii)	For a party to succeed in arguing for costs on the basis of unreasonable conduct, it was not necessary to show that the other party had no reasonable prospect of success.  (Peat & Others v Birmingham City Council (UKEAT 0503/11).  In that case Supperston J also held that if the claimant’s Solicitors had engaged with the issues and the costs warning letters, they likely would have appreciated that the claimant’s reasonable prospect of success was so thin that it was not worth going to the hearing.

	(viii)	The tribunal must go through a two stage process in determining whether to award costs.  The tribunal must firstly determine whether the claimant, (in this case), acted unreasonably and/or vexatiously in the bringing or conducting of the tribunal proceedings and/or the bringing and/or conducting of the proceedings was misconceived.  The tribunal must then decide whether or not it is appropriate to exercise its discretion to award costs in the particular circumstances of the case (Criddle v Epcot Ltd (UKEAT/0275/05) and Khan v Kirklees BC (2007) EWCA Civ 1342).

	(ix)	The tribunal considered the relevant sections in Harvey at P[1004]ff.

SUBMISSIONS

6.	(i)	The tribunal was assisted by the written and oral submissions from both parties.  The claimant complained of the large volume of documentation he received a short time before the substantive hearing commenced and also pointed to the lateness of the respondent’s submissions in advance of the costs hearing.  The claimant had formulated his written submissions in three separate items of correspondence.  The written submissions from both parties are appended to this decision.

	(ii)	The claimant further pointed to the fact that the respondent had not made an application to strike-out his case or to apply for a deposit order hearing.  He further submitted that he had had appropriate legal advice both in relation to the time issues and (in terms), on the substantive aspects of his case.  He maintained that he had approached the case in good faith and that it was not about Professor Howard or the Alder Hay issue but how the University of Ulster had treated him after he flagged up serious issues which they had not dealt with.  He pointed out that if his legal advisers had stated to him that it was not sensible to proceed with his case he would have withdrawn his claim.  In relation to the note of cross examination produced by the respondent during the costs hearing (which records that the claimant was invited to withdraw his case on two occasions), he submitted that it was very difficult to prove conspiracy, that there is very rarely hard evidence in such a situation, and it was not reasonable to expect him to have to prove hard evidence.  The claimant also sought to open up certain aspects of the decision particularly in relation to Mr Magee’s involvement until Mr Mulqueen objected. 

	(iii)	Mr Mulqueen referred the tribunal to his written submissions and invited them to consider his additional oral submissions using the sequence already set out by him in writing.  He submitted that this was not an appropriate case for a strike-out application or a deposit hearing.  He contended that the time issues and public interest disclosure issues together with issues of credibility could only be addressed by obtaining evidence and that the respondent did not see any point in making an application at the conclusion of the proceedings.  Mr Mulqueen referred the tribunal to the paragraphs in its substantive decision highlighted in his written submissions.  He submitted that the claim was misconceived in that the claimant knew or ought to have known that his claim was out of time.  In this respect he pointed the tribunal to paragraph 5(xix) of his decision together with its conclusion at paragraph 8(1) in relation to the out-of-time/jurisdictional issue and in particular the concluding sentence in paragraph (iii) that:-

		“The tribunal was therefore satisfied that the claim was out of time and that there was no reason why the three month period should be extended”.

	(iv)	Mr Mulqueen proceeded, in accordance with paragraph 3.7 of his written submission, to refer the tribunal to the paragraphs in its decision grounding his submission that the claimant was fixated by Professor Howard and the Alder Hay issue and that his motivation for the proceedings was to bring these issues back into the public domain.  He also focussed upon the various references in the findings of fact to the credibility of the claimant in certain parts of his evidence.  He referred to the claimant’s allegation that he had been harassed, threatened and punished as a consequence of raising the alleged protected disclosure and that Professors Adair, McKenna, Bjourson, Scotney, McHugh, Moran, O’Dochartaigh and McClenaghan, together with Ronald Magee had conspired to punish him because he had made a protected disclosure.  Counsel further submitted that having made these serious allegations, the claimant did not cross-examine or put such allegations to the witnesses during the tribunal and that this demonstrated unreasonable behaviour.  He submitted that the ongoing campaign against Professor Howard included the tribunal hearing itself.  In addition, he submitted that the claimant pursued his tribunal claim in an unreasonable and/or vexatious manner as evidenced by the paragraphs in the findings of fact referred to in his submissions.  He also referred to paragraph 5(xv) of the tribunal’s findings of fact to submit that this illustrated vexatious behaviour as the claimant had brought his case in bad faith.  Referring to this two-stage process in any costs application, Mr Mulqueen urged the tribunal to exercise its discretion to award costs up to the maximum of £10,000.  He highlighted the issue of the claimant’s credibility in paragraph 5(xiv) of the tribunal’s decision, and referred to the steps he had taken to ensure media coverage involving Professor Howard both before and during the tribunal hearing.  He also referred to the presence of an individual during the tribunal hearing from Ward Hadaway Solicitors, to take notes.  In paragraph 3.6 of his written submissions he had submitted that the claimant had access to legal assistance at all times during the course of the (substantive) hearing.

FINDINGS OF FACT

7.	(i)	As recorded in paragraph 5(i) of the tribunal’s substantive decision, the claimant was clearly an extremely competent Scientist during his time with the University of Ulster, and presented himself before the tribunal as being intelligent and articulate.  He had also retained Worthingtons Solicitors in Belfast, in November/December 2012 and obtained advice in relation to time limitation requirements in bringing a claim to the tribunal.  However he had retained Ward Hadaway Solicitors to prepare and submit his claim to the tribunal pursuant to his instructions.  There was no mention in his claim of any conspiracy against him by the nine individuals employed by the University nor had he made any specific reference in his witness statement to any allegation that he was harassed or threatened or that there was a conspiracy against him.  Furthermore he did not put any direct allegations of any such alleged behaviour or conspiracy to the respondent’s witnesses during the tribunal hearing in relation to the nine senior members of the University.  

	(ii)	The tribunal did express doubt as to the claimant’s credibility in parts of his evidence as is reflected in paragraph 5(xiv) and (xix) of its decision.  The tribunal also made repeated findings in relation to the claimant’s fixation with 
Professor Howard and the Alder Hay issue.  In paragraph 5(vii) of its decision, the tribunal recorded that:-

		“The claimant focused on Professor Howard and the Alder Hay issue together with the Redfern report emanating from it, particularly after he resigned from the FP7 project.  He also made persistent attempts to do so in his evidence before the tribunal.  The tribunal however ruled that the issues before it concerned the FP7 project as reflected in the correspondence reproduced above dated 4 August 2010 from the claimant to Professor Adair.  The claimant also agreed that the issues before the tribunal did relate to the FP7 project alone”.   

	(iii)	The claimant did take steps to ensure publicity for the hearing both before and during the tribunal.  He also had retained a member of staff from Ward Hadaway Solicitors to take notes during the tribunal hearing and had access to legal assistance.  The tribunal also concluded in paragraph 8(2)(i) of its decision that, even allowing the claimant the benefit of any doubt in relation to whether he had made a qualifying disclosure or that he had a reasonable belief that the information tended to show that a criminal offence was likely to 

		be committed, any such disclosure of information was not made in good faith as its dominant or pre-dominant purpose was for the ulterior motive of undermining Professor Howard.  

	(iv)	Following inquiry by the tribunal the claimant confirmed that he had the ability to pay any award of costs.  The respondent’s Bill of Costs, dated 30 October 2014, totals £72,990.79 to include VAT.
	
CONCLUSIONS

8.		Having carefully considered the written and oral submissions from both parties and its findings of fact, and having considered the principles of law applicable to the respondent’s costs application, the tribunal concludes as follows:-

(i)	The tribunal is not satisfied, in light of the claimant’s retention of experienced employment solicitors until shortly before the hearing, and the presence of a member of staff from that Solicitor’s office during the hearing, when taken together with the nature and quality of his written submissions at the conclusion of the hearing, that there this is sufficient evidence before it to conclude that the claimant in bringing the proceedings acted vexatiously or unreasonably or that the bringing of the proceedings has been misconceived.

(ii)	However, the tribunal is satisfied that the claimant has in conducting the proceedings acted unreasonably.  This is reflected in the serious allegations brought against nine senior members of the respondent which he did not pursue in cross examination.  He made no specific reference in his witness statement to any such allegation that he was harassed or threatened or that there was a conspiracy against him and there was no mention of any conspiracy in his claim to the tribunal which was prepared and submitted by Ward Hadaway Solicitors pursuant to his instructions.  Furthermore, the findings relating to his credibility and, in particular his fixation with 
Professor Howard and the Alder Hay issue, together with his use of the tribunal proceedings at least partly as a vehicle to highlight aspects of this fixation, and his attempts to ensure media coverage involving Professor Howard both before and during the tribunal hearing, clearly, in the tribunal’s view, point to unreasonable behaviour on the claimant’s part.  This conclusion is fortified by the tribunal’s conclusion in paragraph 8(2)(i) of its decision, that if there was a qualifying disclosure based on a reasonable belief that the information tended to show that a criminal offence was likely to be committed, any such disclosure of information was not made in good faith as its dominant or predominant purpose was for the ulterior motive of undermining Professor Howard.

(iii)	The tribunal is satisfied that the overall effect of this unreasonable behaviour was to elongate the proceedings and led to the respondent incurring unnecessary additional costs.  

(iv)	The tribunal is further satisfied that it should exercise its discretion, having established the claimant’s ability to pay costs, and order him to pay costs to the respondent in the sum of £5,000.00.

Employment Judge:       

Date and place of hearing:	31 October 2014, Belfast.	

Date decision recorded in register and issued to parties: