Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 795/14

1647/14

 

 

CLAIMANT: John Eltham

 

 

RESPONDENT: Department for the Environment

 

 

DECISION ON AN APPLICATION FOR COSTS

 

The unanimous decision of the tribunal is that the claimant is ordered to pay to the respondent the sum of £540.00 in respect of the costs of a Case Management Discussion held on 11 May 2015.

 

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr H Stevenson

Mr I Foster

 

 

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr A Sands, Barrister-at-Law instructed by the Departmental Solicitors Office.

 

1. This was an application for costs in relation to a Case Management Discussion held on 11 May 2015 in preparation for this case, which was heard by the panel giving this decision in late May 2015.

 

2. The claimant had lodged his initial claim on 7 May 2014 with a subsequent claim lodged on 22 August 2014. The initial claim had been the subject of a Case Management Discussion and the case had been timetabled for hearing in January 2015. At a further Case Management Discussion on 5 January 2015, the case had been re-timetabled for hearing in May. A number of orders and directions had been given. These directions were as follows:-

 

(1) The respondent would issue notices for additional information and discovery in relation to claim 1647/14 by 26 January 2015 with the claimant to reply to both by 16 February 2015.

 

(2) The claimant's witness statement was to be served by 2 March 2015.

 

(3) The respondent's witness statements were to be served by 13 April 2015.

 

(4) A schedule of loss was to be served by 2 March 2015.

 

(5) Agreed bundles were to be lodged by 11 May 2015 and the hearing would take place between 15 May 2015 and 1 June 2015.

 

3. However the respondent did not serve its notice for additional information until 23 February 2015. Between 23 February 2015 and 11 May 2015 (when the further Case Management Discussion was held) the respondent had not received replies to its notice for additional information, the claimant's consolidated witness statement nor a schedule of loss.

 

4. It transpired that, according to the claimant, he had sent replies to the respondent's notice for additional information on 2 April 2015 by email, together with his consolidated witness statement. On 23 April 2015 there was a reminder from the respondent's solicitor to the claimant that these replies and the witness statements were outstanding. The claimant therefore re-sent another two witness statements and the previous email with the attachments in relation to the replies to the requests for additional information and his own consolidated witness statement. He did not check by phone or letter that these documents were received by the respondent's representative. On 5 May 2015, the claimant received a further email from the respondent's solicitor indicating that neither the witness statements nor the replies had been received. At that stage the claimant checked his computer and noted that both emails had been sent according to his records, but when he attempted to open the documents they would not open, and it transpired that the original word document had been corrupted. He was then not able to access either the replies or his witness statement. He had not retained hard copies of any of these documents. The claimant then set about rewriting his witness statement and the replies. At the date of the Case Management Discussion on 11 May 2015 he advised that the witness statement was now complete although a number of documents referred to in it had yet to be numbered and that the replies would be ready by the following morning. He indicated also that schedule of loss (due on 2 March) was ready.

 

5. At the conclusion of that hearing and after Employment Judge Greene had given further directions in relation to the timetabling of the case, Mr Sands made an application for costs of the CMD hearing which was reserved to the tribunal dealing with the full hearing.

 

6. This panel heard the claimant's claims from 26-28 May 2015 and on 1 and 3 June 2015. The result of the hearing was that all of the claims were dismissed. The matter then came before us to consider the question of costs of the Case Management Discussion of 11 May 2015.

 

7. Mr Sands indicated that the respondent was seeking the sum of £450.00 plus VAT of £90.00. He indicated that the Case Management Discussion had lasted approximately an hour and 30 minutes. His Solicitor's time was billed at £97.00 per hour (without VAT) while counsel's time was billed at £110.00 per hour plus VAT. The Solicitor also had noted some preparation time for the Case Management Discussion.

 

8. It was the respondent's view that the claimant had behaved unreasonably in the way that he had failed to comply with the tribunal's orders made at the Case Management Discussion on 5 January 2015 and as a result of this failure on the claimant's part, the Case Management Discussion on 11 May 2015 had been necessary and had been caused, in the respondent's view by the claimant's failings. The claimant indicated that because he was unable to afford representation he had to represent himself. He said he had found the experience very stressful and it had contributed to his poor mental health. He did not however produce any medical evidence in relation to this. He said because of his poor mental health he had overlooked things as a result of which he had failed to comply with the tribunal's directions in January. He indicated that he had not intentionally acted unreasonably in any way.

 

9. The claimant confirmed that he is currently working and earning £2,126.00 per month net. His ongoings including his mortgage, car etc total approximately £853.83 per month. He indicated that he also had some personal debt to a friend which he was endeavouring to repay at a rate of £1,000.00 per month. He did not produce any documents to support these assertions.

 

THE RELEVANT LAW

 

10. The tribunal's power to award legal costs is set out in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ("The 2005 Rules"). The general power to make a costs order is set out in Schedule 1 at Rule 38. Rule 40 provides the conditions in which the tribunal is to consider making a costs order and the relevant parts of the rule state as follows:-

 

"(2) A tribunal or [employment judge] shall consider making a costs order against the paying party where, in the opinion of the tribunal or [employment judge] (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered the tribunal or [employment judge] may make a costs order against the paying party where it or he considers it appropriate to do so.

 

(3) The circumstances referred to in paragraph (2) above are that 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 at Regulation 2 as including "no reasonable prospect of success".

 

11. The principles in relation to the award of costs are outlined in Harvey on Industrial Relations and Employment Law Division P1 (Practice and Procedure) at paragraph 1044 and following. Harvey emphasises that despite changes which have extended the tribunal's power to make orders for costs considerably, the fundamental principle remains that costs are the exception rather than the rule and that costs do not automatically follow the event in employment tribunals ( McPherson v BNP Paribas (London Branch) [2004] EWCA Civ 569 at
paragraph 2; and Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 at paragraph 7. It is also relevant to note that tribunals must apply a two stage test to an application for costs. First of all, they must consider whether the relevant party's behaviour falls within Rule 40(3). Secondly, they must consider whether it is an appropriate case in which they should exercise their discretion to make a costs order.

 

12. It is clear from considering the case law that the tribunal must look not just at the proceedings themselves but also with the claimant's conduct in bringing or conducting the proceedings. The type of conduct which would be considered unreasonable by a tribunal obviously depends on the facts of the individual case; there is no hard and fast principle applicable to every situation (Harvey, paragraph 1083). In Cartiers Superfoods Ltd v Laws [1978] IRLR 315, Phillips J considered it was necessary "to look and see what the party knew or ought to have known if he had gone about the matter sensibly." In particular if there was nothing in the evidence to support the allegations being made, this will involve an assessment of the reasonableness of bringing the proceedings, including a consideration of the question of whether a claimant ought to have known that there was no such important material.

 

13. Unreasonable conduct

 

Harvey (see paragraph 1064) indicates that "unreasonable" conduct includes conduct that is vexatious, abusive or disruptive. The discretion of the tribunal is not fettered by any requirement to link the award causally to the particular cost which has been occurred as a result of specific conduct which is being identified as unreasonable. In McPherson, Mummery J stated:-

 

"The principle of relevance means 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 party] to prove that specific unreasonable conduct by [the paying party] cause particular costs to be incurred."

 

14. Subsequent in Yerraklava, he stressed that this passage in McPherson was not intended to be interpreted as meaning either that questions of causation are to be disregarded or that tribunals must dissect the case in detail and compartmentalise conduct. As he observed:-

 

"The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and 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."

 

15. He also observed that:-

 

"A costs decision in one case will not in most cases pre-determine the outcome of a costs application in another case: the factors of the case will be different as will be the interaction of the relevant factors of the one and other and the varying rate to be attached to them."

 

16. It is also relevant to consider the fact that the claimant is not legally qualified and not legally represented. In the case of AQ Ltd v Holding [UKEAT/0021/12] in the Employment Appeal Tribunal, his Honor 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 in knowledge of law and practice brought by a professional legal advisor. Tribunals must bear this in mind when assessing the threshold test in Rule 40(2). Further even if the threshold test for an order for costs is 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 without access to specialist help and advice. That is not to say that lay people are exempt from an order for costs; far from it as the case has been made clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowances made for their inexperience and lack of objectivity ..."

 

17. Harvey emphasises that when considering whether costs should be awarded on the grounds of unreasonable conduct, it is the conduct of a party in bringing or defending a claim, or in continuing to pursue the claim of defence, that can give rise to an award and not conduct occurring before the institution of proceedings (see paragraph 1066). In this case the respondent applied for costs on the basis that the claimant acted unreasonably in the conduct of the proceedings in failing to reply to its requests for additional information and supply witness statements in accordance with the tribunal's orders. We do not consider it necessary to set out the case law in relation to any other aspect of the costs rules.

 

18. The means of the claimant

 

The case of Jilley v Birmingham and Solihull Mental Health NHS Trust [UKEAT/0584/06] emphasises the importance of taking account of a claimant's means, although lack of means to pay is not a barrier to a costs order being made. The judgment states as follows:-

 

"The first question is whether they should take the ability to pay into account. The tribunal has absolutely no duty to do so. As we have seen if it does not do so, a County Court may do so at a later stage. In many cases, it will be desirable to take means into account before making an order; ability to pay may affect the exercise of an overall discretion, and this course will encourage finality and may have a wide lengthy enforcement proceedings. But there may be cases where for good reason ability to pay should not be taken into account; for example, if a paying party has not attended or has given unsatisfactory evidence about means."

 

19. In this case we are of the view that it would be appropriate to make an order for costs on the basis that the claimant behaved unreasonably in failing to respond to the respondent's requests for additional information and in providing his witness statement to the respondents within the time ordered by the tribunal.

 

20. We note that at the Case Management Discussion in May 2015, the claimant had indicated to the tribunal that he had had some difficulties with his computer and that on this basis although he thought the documents had been sent to the respondent by email, and his computer showed that, for some reason the emails had not been received by the respondent. At the hearing before us, his explanation was that he had overlooked things and had failed to comply with the directions given in January 2015. All that he said was that due to his poor mental health (of which we had no medical evidence) he had overlooked matters. This is a completely different explanation to the explanation which was given in May 2015 and which was accepted by Employment Judge Greene. In our view, this puts in doubt whether the explanation for the delay given by the claimant in May 2015 is in fact genuine. We also note that the claimant had not retained hard copies of his witness statement and the replies to the respondent's request for additional information, which we find surprising to say the least. We would have thought in a case such as this the claimant would as a matter of routine have retained hard copies of documents. We are also aware from our experience of hearing the claimant's claims, that his behaviour in relation to his dealings with the respondent shows a pattern of prevarication and leaving things until the last minute. We also note that when the claimant made an application during the hearing to introduce evidence from a new witness, he had no difficulty in producing a witness statement from that witness to support his case at very short notice. In all the circumstances it is our finding that the claimant acted unreasonably in failing to respond to the respondent's request for additional information and in failing to provide his witness statements to the respondent at the time specified by the tribunal at the Case Management Discussion in January 2015.

 

21. The second question which we have to address is whether it is appropriate for us to exercise our discretion to make an order for costs. We consider that it is. We note that if the claimant had complied with the tribunal's orders there would have been no necessity at all for the Case Management Discussion held on 11 May 2015: the parties would by then have been making their final preparations for the hearing and each would have already received the other's witness statements. As it was, because the claimant had not produced his witness statements, the respondent have had to hold off issuing their witness statements and there was therefore something of a last minute scramble to prepare the case for hearing. We also consider that the amount claimed by the respondent in relation to costs is not unreasonable, given the time involved.

 

22. Although we are not obliged to take into account the claimant's means, we consider that, with the income which the claimant has and the level of outgoings which he indicated to us, it is not unreasonable to order the claimant to pay the full amount of costs claimed by the respondent. Accordingly we order the claimant to pay to the respondent the sum of £540.00 in respect of costs in this matter.

 

 

 

 

Employment Judge:

 

Date and place of hearing: 5 November 2015, Belfast.

 

Date decision recorded in register and issued to parties: