Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1725/13

 

 

 

CLAIMANT: Philip McKinstry

 

 

RESPONDENTS: 1. Moy Park Limited

2. Gary Maxwell

3. Brian Johnstone

 

 

 

DECISION ON COSTS

The unanimous decision of the tribunal is that the claimant do pay to the respondents the sum of £1,800.00 in respect of costs incurred by the latter in defending these proceedings.

 

The claimant, in bringing and conducting of the proceedings, acted unreasonably.

 

Constitution of Tribunal:

Employment Judge: Employment Judge D Buchanan

Members: Mr R McKnight

Mr I Atcheson

 

Appearances:

The claimant was represented by Ms M-C Campbell, Barrister-at-Law, instructed by Patrick Park, Solicitors.

The respondents were represented by Ms R Best, Barrister-at-Law, instructed by Arthur Cox, Solicitors.

 

1(i) By a claim form presented to an industrial tribunal on 24 September 2013, the claimant, Mr McKinstry, a production planner employed by the first-named respondent, alleged that he had been discriminated against on the ground of his disability by all of the respondents. He made allegations of direct discrimination, disability-related discrimination and harassment. He also alleged that there had been a failure to provide him with a written statement of particulars of his employment, and that the hours he had been required to work breached the provisions of the Working Time Regulations (Northern Ireland) 1998. At the outset of the hearing the latter two claims were withdrawn by the claimant.

 

(ii) The remaining claims were dismissed by a unanimous decision of the tribunal issued on 8 June 2016. A hearing lasting five days had taken place from 2 - 6 November 2015, inclusive.

 

2(i) Following on the dismissal of these claims the respondents, by letter of 29 June 2016, made an application for costs against the claimant under Rule 40 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. They contend that the claimant, in bringing and conducting the proceedings has acted vexatiously and unreasonably, and that the bringing of the proceedings was misconceived.

 

(ii) The respondents incurred substantial legal costs - in excess of the £10,000.00 cap under the Rules. Prior to the commencement of the proceedings, the first-named respondent's then in-house solicitor had sent a costs warning letter to the claimant, in which it was stated the respondents believed the claims were unreasonable, vexatious and misconceived, and inviting him to withdraw them.

 

That letter was sent on 4 April 2014.

 

3(i) At the costs hearing before us we heard submissions from Ms Best BL, for the respondents (oral) and from Ms Campbell BL, for the claimant (written). Again, we express our gratitude to them for their help and assistance.

 

(ii) We also heard evidence from the claimant, Mr McKinstry, as to his means.

 

4(i) In our decision of 8 June 2016 we had some harsh words to say about the claimant. At Paragraph 2(iii) and (iv) we said that we found him to be evasive and disingenuous in his evidence and alluded to incidents in respect of which he had given evidence which was 'blatantly untrue'. In the penultimate paragraph we reiterated and emphasised how totally unimpressed we were with the claimant's evidence, and stated that we did not find him to be a credible witness.

 

(ii) Other unflattering comments about the claimant's case and his evidence are to be found at Paragraphs 3(ii), 9(ii) and (iv), and 16(i) of our decision.

 

(iii) We do not set out any of those findings and comments again, and, unsurprisingly, Ms Best BL, for the respondents, made reference to them all in her submissions that the claimant's conduct was both unreasonable and vexatious.

 

In relation to the latter (vexatious conduct) she submitted that the claimant clearly intended to subject the respondents to inconvenience and harassment and was, in effect, acting out of spite.

 

5(i) Ms Campbell BL, for the claimant, in her thorough, helpful and comprehensive written submissions, identified the relevant law, and there was really no dispute about this between the parties.

 

(ii) In brief, Ms Campbell submitted (and we hope this summary does her submissions justice) that costs are the exception, rather than the rule, in employment tribunal matters. Costs must be compensatory, not punitive. A party who wishes to establish that an opponent's claim was vexatious faces a high hurdle, and a claim which is misconceived includes one which has no reasonable prospect of success. Other relevant factors include the respondents' failure to apply to strike-out the claim or to apply for a Deposit Order at an earlier stage, any knowledge of a party that his case was unmeritorious, and the fact that a party had sought, or had the benefit of legal advice. The fact that a party ultimately loses his or her case does not mean that it was unmeritorious from the outset, or was misconceived or vexatious.

 

(iii) What is unreasonable, etc, will depend on the facts of the specific case and there are no hard and fast rules applicable in every situation. The decision on whether to award costs is a two step test. Firstly, a tribunal must decide whether a party has acted unreasonably, etc, and if so, it must then decide if it should exercise its discretion in that particular case. In exercising that discretion the tribunal should have regard to the nature, gravity and extend of the unreasonable conduct in question.

 

(iv) We also bear in mind the decision on costs of the Court of Appeal in this jurisdiction, Peifer v Castlederg High School and the Western Education and Library Board [2008] NICA 49.

 

6(i) In her submissions, Ms Campbell BL made particular reference to the case of Sheil  v Stena Line Irish Sea Ferries Ltd [IT 434/13] a decision of an industrial tribunal in this jurisdiction presided over by the Vice President of the Tribunals. The significance of that case is that it dealt with the issue of costs in a case which had been sent back to the tribunal by the Court of Appeal. That claimant's claim had succeeded before an industrial tribunal, the decision was appealed to the Court of Appeal, and sent back to be heard by a different industrial tribunal, when the claimant was unsuccessful.

 

(ii) In a decision on costs in relation to the second hearing, the tribunal, in dismissing that application, said, at Paragraphs 29 and 31:-

 

"Far from simply overturning the finding of unfair dismissal, 'the Court of Appeal' 'reluctantly' ordered [the case] to be re-heard by a new tribunal. It did not discourage the claimant from proceeding further. It cannot therefore be reasonably argued that the decision of the claimant to pursue the unfair dismissal claim to a new hearing that had been directed by the Court of Appeal was a misconceived decision; ie a decision having little prospect of success, or a decision attracting the ordinary meaning of 'misconceived'.

 

Whatever view is taken of the credibility of the claimant or of the respondent's witnesses, there was clearly an issue to be tried here as directed by the Court of Appeal."

 

7(i) Ms Campbell BL, in her submissions, draws an analogy between the Sheil case and that of Mr McKinstry, which had also involved an appeal to the Court of Appeal and the remission of the case to a differently constituted ( ie this) tribunal.

 

(ii) However, to our mind there is an essential difference between the two cases. The Sheil case went to the Court of Appeal after a full hearing on the merits before an industrial tribunal on the substantive issue of unfair dismissal. The Court of Appeal sent the case back to another tribunal, having had the benefit of a decision setting out the tribunal's sources of evidence and its findings of fact in relation to the allegedly unfair dismissal.

 

(iii) In this case the matter went to the Court of Appeal following a pre-hearing review on the admissibility of one discrete piece of evidence, ie whether discussions at a meeting between the parties at a meeting on 25 June 2013 were 'without prejudice'. The industrial tribunal, at the pre-hearing review, heard no oral evidence. There was an agreed statement of facts, but unfortunately dispute subsequently arose as to what facts had actually been agreed. When the Court of Appeal remitted the matter to a differently constituted tribunal, one of the reasons for making that order was because it seemed to the Court of Appeal that the issues which had been raised at the pre-hearing review were 'perilously close' to the central issue in the case and that this was a case where the preliminary issue could not be entirely divorced from the merits of the case or would require the consideration of a substantial body of evidence.

 

(iv) The case was then listed before us for a full hearing, at which both all the evidence and oral evidence was heard for the first time.

 

8 In the case which he ran before us, Mr McKinstry was totally and blatantly dishonest and we so found. This is not something which he can lay at the door of others, for instance by falling back on the fact that he had legal representation. It goes without saying, but we state it for the avoidance of any doubt, that Ms Campbell BL and her instructing solicitor acted impeccably through the entirety of the proceedings. Nor in these circumstances does it avail him to argue that the respondents could have applied for a Deposit Order pre-hearing review or made a strike-out application. The format is not appropriate where there are disputed facts, and the latter application is only rarely acceded to.

 

9(i) We are conscious of the fact that a finding that a party has given false evidence does not lead inevitably to an award of costs. See : Kapoor v Governing Body of Barnhill Community School [UKEAT/0352/13] and the judgment of Singh J. However, that decision does not stand on its own, and there are other EAT decisions where it had been held that if a party has lied to a tribunal, that is unreasonable conduct which should result in an award of costs. ( See : Tolley's Employment Handbook 2015, 29 ^th Edition, pp 596, 597.)

 

(ii) At the end of the day, a decision on costs relates to the exercise of a discretion on the particular facts of the case, and other decisions have very limited precedent value.

 

In Barnsley Metropolitan Council v Yerrakalva [2011] EWCA Civ 155, Paragraph 41 , Mummery LJ said:-

 

"The vital point in exercising the discretion or to order costs is to look at the whole picture of what happened in this case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting it, and in doing so, to identify the conduct, what was unreasonable about it and what effects it had."

 

(iii) In this case we are satisfied, having regard to all the facts and circumstances to which we have referred, that he acted at the very least unreasonably in the bringing of, and conduct, of these proceedings. The claimant, in the level and extent of his dishonesty, crossed the line in his gross misrepresentation and manipulation of the facts of this case.

 

10(i) We are therefore satisfied that an award of costs is appropriate. We are bound in these proceedings by the maximum amount of £10,000.00 laid down in the Rules.

 

(ii) In making an award of costs, we have had regard to the claimant's means, in respect of which he gave sworn evidence before us, though again on this issue he was somewhat evasive.

 

His income now appears to come principally from social security benefits and he does have substantial debts, including £9,294.00 outstanding on a car loan.

 

However, until July of this year, he was still in receipt of 75% of his monthly salary - approximately £1,000.00 per month - and in cross-examination he admitted what he had not volunteered in evidence-in-chief, namely that he had £900.00 in savings.

 

(iii) In these circumstances we make an award of costs against him in the sum of £1,800.00.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 11 October 2016 at Belfast

 

 

Date decision recorded in register and issued to parties: