Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1412/15

 

 

CLAIMANT: Andrew George

 

RESPONDENT: Chief Constable of the Police Service of Northern Ireland

 

 

 

DECISION ON COSTS APPLICATION

 

 

The unanimous decision of the tribunal is that the respondent's application for costs is refused.

 

 

Constitution of Tribunal:

 

Vice President: Mr N Kelly

 

Members: Mrs D Adams

Mr I Atcheson

 

Appearances:

 

 

The claimant was represented by Mr R Smyth, Barrister-at-Law, instructed by Edwards & Co, Solicitors.

 

The respondent was represented by Ms Rachel Best, Barrister-at-Law, instructed by the Crown Solicitor's Office.

 

 

Background

 

1. The claimant had lodged a claim of unlawful discrimination on the ground of race.

 

2. That claim was dismissed in a decision issued on the 2 January 2018. That decision should be read with and should form part of this decision.

 

3. On the 29 November 2017 the respondent's solicitors had sent the claimant's solicitors a letter which has been described as a "Calderbank" letter and which offered £10,000 to settle the claim. That offer was refused by the claimant.

 

4. On 29 January 2018, the solicitors for the respondent applied for costs under Rules 38 and 40 of the Industrial Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005. They submitted initially that, in bringing and in conducting the proceedings, the claimant had acted vexatiously and unreasonably and that the claim had been misconceived. That application for costs was refined at the start of this hearing to a claim for costs solely on the ground that the claim and the conducting of the claim had been unreasonable for the purposes of the Regulations. The respondent sought costs of £10,000.

 

5. The claimant resisted that application. It was listed for hearing on 4 May 2018. Skeleton arguments were provided by both parties and both parties made submissions.

 

Relevant Law

 

6. Rule 40(2) of the Industrial Tribunal (Constitution on Rules of Procedure) Regulations (Northern Ireland) 2005 provides that;

 

"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 maybe), 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".

 

7. Rule 40(3) sets out the relevant circumstances;

 

"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."

 

8. Rules 41(2) provides;

 

"The tribunal or chairman may have regard to the paying party's ability to pay when considering whether it or he shall make a Costs Order or how much that order should be."

 

9. The relevant principles have been set out several times in case law. Recently they were set out in the EAT Decision in Ayoola -v- St Christopher's Fellowship UKEAT/0508/13. At paragraph 13 of that judgement it states;

 

"17. As for the principles that apply to an award of costs in the Employment Tribunal under the 2004 Rules, the first principle, which is always worth restating, is that costs in the Employment Tribunal are still the exception rather than the rule, -. Second, it is not simply enough for an Employment Tribunal to find unreasonable conduct or that a claim was misconceived. The tribunal must then specifically address the question as to whether it is appropriate to exercise its discretion to award costs. Simply because the tribunal's costs jurisdiction is engaged, costs will not automatically follow the event. The Employment Tribunal would still have to be satisfied that it would be appropriate to make such an order -."

 

10. In Kopel v Safeway Stores [2003] IRLR 753, the claimant had alleged torture and breach of the European Convention. That claim had been held to have been misconceived and costs had been awarded. While that costs order was upheld, the EAT commented on the application of Calderbank v Calderbank in Employment Tribunals.

 

"There is no question of any rule in Calderbank v Calderbank applying to proceedings before the Employment Tribunal. The principle in Calderbank is that a party to matrimonial proceedings against whom a money claim is made can protect his position as to costs by making an offer of settlement marked "without prejudice save as to costs." The offer may not be referred to during the main hearing but may be once judgement is given. If the order made is less favourable than the offer, the Court may take the offer into account when considering what if any order for costs to make. Calderbank does not apply without more to money claims in the High Court. Any offer of money must be accompanied by payment into Court under CPR Part 36.3, which procedure is not possible in the Employment Tribunal."

 

"The Employment Tribunal's statement that the rule in Calderbank v Calderbank, as extended in the High Court, does apply to tribunal proceedings was therefore doubly mistaken. There is no doubt, however, that an offer of the Calderbank type is a factor which the Employment Tribunal can take into account under rule 14."

 

11. In Monaghan v Close Thornton Solicitors EAT13/01, the EAT stated:

 

"Whilst we would not want to deter the making and acceptance of sensible offers, if it became a practice such than an applicant who recovered no more than two-thirds of the sum offered in a rejected Calderbank offer was, without more, to be visited with the costs of the remedies hearing or part of them, Calderbank offers would be so frequently used that one would soon be in a regime in which costs would not uncommonly be treated as they are in the High Court and other Courts. Yet it is plain that throughout the life of the Employment Tribunals, the legislature has never so provided. It can only be that that was deliberate."

 

Relevant Findings of Fact and Decision

 

12. The facts relevant to the original claim and to its disposal are set out in the decision which issued on 2 January 2018 and it is not necessary to restate those facts here.

 

13. The letter of 29 November 2017 was issued shortly before the commencement of the substantive hearing in this matter on 6 December 2017. This had been the third occasion on which this case had been set down for substantive hearing. However no similar letter had issued on the two previous occasions.

 

14. The original claim had been exhaustively case managed with ten Case Management Discussions and two separate Pre-Hearing Reviews on different applications. There had however, in all of this, been no application for a Pre‑Hearing Review on the ground that the bringing of the claim, or a part of the claim or the conduct of that claim or part of the claim, had been unreasonable, vexatious or misconceived. There had been no application for a Deposit Order or a strike out of all or part of the claim.

 

 

15. Such an application would have been possible. A large part of the claim concerned the allegation that the claimant had been discriminated against by the respondent in relation to temporary promotions to sergeant and that other constables had been given preferential treatment in this regard. Even so, a simple schedule showing the exact number of such temporary promotions had not been prepared by the respondent or furnished to the claimant. It had not even been prepared for the substantive hearing. This had been a question of empirical fact. Figures could and should have been furnished in good time, long before the commencement of the substantive hearing, in rebuttal of that part of the claim. Witness statements furnished by the respondent in relation to this point were imprecise. For example, Chief Inspector McCreery said, without figures, details or an exact timeframe, "Constable George has held temporary promotion for longer than any other constable during my tenure".

 

16. The respondent took the view that the necessary figures in relation to the allocation of temporary promotions had not been readily available in any particular computerised database. That is simply irrelevant. They were available and readily available by collating information from different sources. When directed by the tribunal, at the start of the first day of the substantive hearing, to produce those figures, the respondent was able to produce those figures relatively promptly in approximately 48 hours. Those figures, once finally disclosed, showed that 549 potential promotion days had been offered to the claimant while only 181 and 153 respectively had been offered to the two comparators.

 

17. The respondent could and should have disposed of that part of the claim and indeed possibly other parts of the claim, at an early stage in these proceedings. The position could have been made plain in the interlocutory procedure. There could have been an application for a Pre-Hearing Review to order a Deposit or to strike out parts of the claim. The respondent totally failed to do so in the midst of an exhaustive and intensive Case Management process. It failed to collate and to provide the readily available data to rebut that part of the claim.

 

18. The letter of 29 November 2017 was not, as in the original Calderbank case, issued as part of litigation where costs follow the event and where costs are a normal part of such litigation. In contrast, this letter had been issued as a part of employment litigation where costs remain exceptional. In such an environment, the terms of that letter were deficient.

 

19. The letter did not clearly and ambiguously raise the issue of costs with a clear heading such as "without prejudice save as to costs". The reference to a costs application within that letter was brief and was buried at the bottom of the page.

 

20. The letter did not state that the claim was unreasonable, misconceived or vexatious to bring it within the limited costs jurisdiction of the tribunal. In fact, it offered £10,000 of taxpayer's money to settle the case and described this offer as fair, reasonable and appropriate. The offer of such a substantial sum, so described, is not consistent with the respondent's original costs application that the claim was misconceived, vexatious and unreasonable. It is similarly inconsistent with the respondent's current costs application. In fact it suggests precisely the opposite. It suggests very clearly that the claim was worth £10,000.

 

 

21. In any event the letter had been issued at a very late stage. Insufficient time had been allowed for consideration. It gave the clear impression that the claim was worth £10,000. It should have, and it did not, allege, and set out in detail why it was alleged, that the bringing of the claim or the claim itself had been unreasonable. It did not set out and explain why it was felt that the claim had been vexatious or misconceived. It did not annex a simple schedule setting out the readily available details of the temporary promotions offered to the claimant and to his comparators.

 

22. It is clear that the claimant, in his evidence and particularly in his cross examination in the course of the substantive hearing, made some unsubstantiated allegations eg those in relation to Sergeant McBride and those which suggested that there had been a pattern of collusion between Inspectors and Chief Inspectors. Those allegations emerged under the pressure of cross-examination.

 

23. It is certainly arguable that the first stage of the relevant test has been established; that the bringing of the claim and the conduct of the claim had been in some respects unreasonable. Some of the allegations made by the claimant in the course of cross examination, and indeed earlier, had been shown to be unreasonable once tested under cross examination. However the second part of the test would then have to be considered. The tribunal would have to consider whether it was reasonable in all the circumstances of the case to exercise its discretion to award costs; whether it was appropriate to do so.

 

24. As emphasised above, this is not a jurisdiction where costs follow the event or where they are anything other than exceptional. Claims can often fall apart in cross examination and under the close examination of the tribunal. Genuinely held beliefs and assumptions may not survive such scrutiny. That does not necessarily mean that it would appropriate to award costs in such circumstances in an Employment Tribunal.

 

25. In this case, a previous claim by the claim of unlawful race discrimination had been settled by the respondent. It is also clear that the claimant had been subject at some stages of his career to some racial remarks. The claimant had also been offered, at the very last minute, £10,000 as a compromise settlement; not explicitly on the basis that the claim had been unreasonable, vexatious or misconceived and not explicitly on the basis of "a nuisance value settlement".

 

26. The conduct of the hearing by Mr Smith was not criticised; nor should it have been. This had been a relatively short hearing for a discrimination claim of this type and had been conducted properly and fairly by the representatives of both parties.

 

27. It is clear that the respondent had not felt, until it had received the decision of the tribunal and until it had had the benefit of the cross examination in the course of the substantive hearing, that the claim had been unreasonable. If it had felt that at an earlier stage, it would have sought a Pre-Hearing Review in relation to a Deposit or a strike out, or it would have timeously issued a Calderbank letter more appropriate to this jurisdiction, setting out the reasons why it held that view and unambiguously and specifically raising the issue of costs. Crucially, it would not, in that letter, have offered the substantial sum of £10,000 described as a fair, reasonable, and appropriate settlement.

 

 

28. The tribunal therefore concludes that, even if it had reached the final conclusion that all or part of the claim had been unreasonable or that the conducting of all or part of the claim had been unreasonable, it would not determine that it would be appropriate to award costs in all the circumstances of this case. The application is therefore refused.

 

 

 

 

 

Vice President:

 

 

Date and place of hearing: 4 May 2018, Belfast.

 

 

Date entered in register and issued to parties: