Cosgrove v Royal Mail Group PLC  (Application for Costs)  (18 December 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	114/02

APPLICANT:		Christopher Cosgrove

RESPONDENT:		Royal Mail Group PLC

DECISION
It is the unanimous decision of the Tribunal that in bringing or conducting the proceedings the applicant acted unreasonably and as such the tribunal is awarding the sum of £500.00 to be paid by the applicant to the respondent in respect of the costs incurred by the respondent in defending the proceedings brought by the applicant.
Appearances:
The applicant did not appear but was represented by, at the first hearing, Ms Corrigan of Bogue & McNulty and at the second hearing by Ms Sinead Luney of Bogue & McNulty.
The respondent was represented at both hearings by Miss Orlagh O’Neill of Napier & Sons, Solicitors.

Summary reasons 

The tribunal found the following facts:-

1.	This application proceeded in front of the tribunal by way of an application for costs only.  There had been a long history of correspondence between the respective firms on record for the parties in the case.  It had been made clear by Miss O’Neill in her correspondence that the applicant’s claim was entirely without merit and should be withdrawn.  She even took the unusual and in the view of the panel meritorious step of citing a line of case law to support her contentions.  This list of case law was contained in her letter to the applicant’s Solicitors dated 7 February 2002.  The case was only actually withdrawn by the applicant’s Solicitors on the day before it was scheduled for hearing.  

2.	In the view of the panel this is clearly unreasonable behaviour.  For no good reason, the applicant and/or his representatives as the case may be have caused the respondent to incur the costs of preparation for the full hearing.  The tribunal does not see any merit in the argument that there are a number of without prejudice letters indicating that the applicant’s representatives were seeking instructions from the applicant to withdraw the case.  The tribunal entirely accepts that it is not for the respondent to second guess the applicant’s intentions.  If these issues had been addressed at a much earlier stage, a considerable amount of work could have been avoided, and the tribunal considers that this is clear evidence of unreasonable behaviour at the very least and probably frivolous and vexatious behaviour in addition.  The tribunal has no hesitation in awarding the sum of £500.00 to be paid by the applicant to the respondent.

3.	The tribunal considered the issue of means and indeed adjourned the hearing to allow the applicant’s representatives to bring further evidence of the means of the applicant before the tribunal.  The applicant appears to be a Self-employed Taxi Driver and certainly as at 1 August 2002 also operated a business consultancy.  There was some discussion as to the applicant’s financial commitments and his inability to meet them but in reaching its decision, the tribunal has relied on the case of Kovacs  v  Queen Mary & Westfield College [2002] IRLR 414.  In this case, it was held by the Court of Appeal that ability to pay is not a factor which an employment tribunal should take note of when deciding whether or not to make an order for costs under Rule 12 of the 1993 Regulations (in the Northern Ireland The Industrial Tribunals (Constitution and Rules of Procedures) Regulations (Northern Ireland) 1996).  The Court of Appeal held that once the threshold of unreasonable behaviour has been crossed, there is no reason why the misbehaving party should not be required to compensate his opponent for costs which he should not plainly have had to incur.  

4.	In this case, the threshold of unreasonable behaviour has clearly been crossed, and the tribunal in reliance on the authority of Kovacs makes the award.

Chairman:

Date and place of hearing:

Date decision recorded in register and issued to parties: