THE INDUSTRIAL TRIBUNALS 

CASE REF:	2942/01

APPLICANT:	Kyle Dallas

RESPONDENT:	Gordon Forbes t/a Ballyfatten Pigs 

DECISION

The unanimous decision of the tribunal is that the applicant’s application is dismissed by the tribunal, without further order. The tribunal declines to make an award of costs on foot of Rule 14 of the Industrial Tribunals Rules of Procedure 2004 against the applicant and in favour of the respondent.
Appearances:
The applicant was represented by Mr C Hamill, Barrister-at-Law, instructed by Hilary Carmichael, Solicitor.
The respondent was represented by Mr M McCann, Barrister-at-Law, instructed by Oliver Roche & Co., Solicitors.

This is a Decision in summary form
1.	In his Originating Application the applicant complained of unfair dismissal and breach of contract.  The matter was initially heard for two days, on 24 November and 25 November 2003, and was adjourned. The case was then re-listed for four consecutive days commencing Monday 22 March 2004.

2.	At the outset of proceedings on 22 March 2004, the applicant’s representative Mr Hamill applied to withdraw the applicant’s complaint and indicated that the reason for this was that the applicant had lost his job and, furthermore, that the applicant’s wife had become ill. Thus the applicant did not wish to continue with the proceedings, especially in view of the fact that the case had already taken 2 days and was listed for a number of further days’ hearing.

3.	The tribunal noted the content of a facsimile transmission from the applicant’s solicitor dated 19 March 2004 and received by the Office of Industrial Tribunals and the Fair Employment Tribunal (“OITFET”) at 18.48 hours on 19 March 2004.  The fax states, “We refer to the above matter which is listed for Monday 22 March 2004.  We confirm that we shall be in attendance on Monday morning to formally withdraw this case.  We have already notified the respondent’s solicitor by telephone and by fax today.  He is aware of the

position”. Counsel, Mr Hamill, appearing on behalf of the applicant indicated that he was aware of the intention to apply to withdraw the complaint but he had not been expressly instructed to appear on behalf of the applicant until the morning of the hearing, when, rather fortuitously, he being in the tribunal buildings on other business, was able to receive such an instruction on behalf of the applicant.  

4.	The respondent’s representative, Mr McCann, did not object to the application in itself but on behalf of the respondent sought costs against the applicant. Mr McCann indicated that his instructing solicitor had received a telephone call on the morning of Friday the 19 March 2004.  The information imparted by the applicant’s solicitor was as per the content of the fax received by OITFET.  A fax in similar terms was subsequently received that day by his instructing solicitor towards the end of the day’s business.  It appears that the instructing solicitor, Mr Roche, had initially not had any specific view on the issue of costs. However, having had discussed the matter with Mr McCann and having taken the respondent’s instructions, a decision was then made to seek costs against the applicant.  In summary, therefore, the application had been advised to the respondent’s solicitors towards the start of business on 19 March 2004 and the respondent was aware of the nature of the application from that time.

5.	Mr Hamill indicated on behalf of the applicant that the applicant’s solicitor had been instructed to withdraw the application probably on either the Tuesday or Wednesday of the preceding week, the 16 or 17 March. Mr Hamill was unable to provide any further information or explanation to the tribunal regarding any delay in communication to the respondent’s representatives of the applicant’s instruction to withdraw the complaint, nor in respect of the failure to instruct for Mr Hamill to appear to move the application (for as mentioned it would appear that Mr Hamill had not been instructed to attend the tribunal and it was fortuitous that he was in attendance in any event in respect of other matters) nor, indeed, in respect of the failure personally to attend on the part of the solicitor, which had been the expressed intention in the fax to OITFET of 19 March.

6.	For the respondent, Mr McCann contended that the grounds upon which the application was claimed to be based were not correct; the true reason was that the applicant feared not just the failure of his case but also being exposed as a dishonest person.  Mr McCann elaborated upon that contention in some detail.  He contended that the application had been brought by an applicant who was, he alleged, dishonest, in an attempt further to compound and to enhance the benefit that the applicant had already achieved by his alleged dishonesty, to the detriment and at the expense of the respondent.  There was a clear and compelling case, Mr McCann contended, that the tribunal ought properly to award costs in favour of the respondent.  The applicant had in bringing and in the conduct of the proceedings acted vexatiously, abusively and entirely unreasonably, in Mr McCann’s view.  The respondent therefore sought not only the costs of all the proceedings to date but also costs in respect of the fact that the matter had been listed for hearing for 4 further days, from 22 – 25 March.  

7.	For the applicant, Mr Hamill resisted the application for costs, stating that any applicant had an entitlement, for good cause, to withdraw his or her application, and even if the application had first been notified and made on the date of the renewed hearing, costs should not be awarded on that account alone. However, in this case the respondent’s side had been notified on the Friday before the hearing date. As for Mr McCann’s contentions, Mr Hamill argued that these were speculation and were unsupported by evidence, and the tribunal ought not to accede to the costs application.

THE TRIBUNAL’S DECISION

8.	Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 contains the Industrial Tribunals Rules of Procedure 2004.  Rule 14 of these Rules provides as follows:-

14 – 	(1)	Where, in the opinion of the tribunal, a party has in bringing
 the proceedings, or a party or a party’s representative has in 
conducting the proceedings, acted, vexatiously, abusively, disruptively or otherwise unreasonably, or a party’s actions in bringing the proceedings have been misconceived, the tribunal shall consider making, and if it so decides may make –

(a)	an order containing an award against that party in respect of the costs incurred by another party;

It is further provided that where such an Order may be made by the tribunal the Order may take a number of different forms.  For the respondent, Mr McCann had applied that the tribunal should order that all of the respondent’s costs of the proceedings to date should be ordered to be paid by the applicant to the respondent.

9.	In the determination of the matter, the tribunal noted the evidence in the matter heard to date and the submissions of the respective parties.  In particular, the tribunal noted the submission on behalf of the respondent that the application had been brought with a view to adding, so it was claimed, to the benefit which had already unjustly and unfairly been obtained by the applicant against the respondent.  The true reason alleged that the applicant was not proceeding was that he feared that his plans in this regard would fail were the tribunal to scrutinise the matter in further detail and hear further evidence.  Against this, for the applicant Mr Hamill put forward two reasons why the applicant did not wish to proceed, those being the financial concerns about a protracted hearing of the case and also the applicant’s wife’s illness.  The tribunal noted that no evidence was called by either party in support of or against the costs application. The applicant produced no evidence verifying the grounds of his application.  The respondent’s submissions on costs were unsupported by any evidence called or produced in that regard. The tribunal had instead a submission on Mr McCann’s part based upon the further evidence which Mr McCann stated would have been adduced before the tribunal had the matter proceeded.

10.	Looking at the matter as heard to date and considering the evidence already given, the tribunal cannot say that, on the face of it, the applicant’s case was devoid of merit or substance.  The basis of the respondent’s submission was that the tribunal would be faced with specific evidence, still to be called, making out a compelling case in support of the submission.  The tribunal was unable to take account of that. The tribunal is not permitted to speculate upon what such evidence might or might not amount to. No evidence had been called in support of the respondent’s application for costs. The tribunal was entitled to take note of any evidence already heard in the matter.  On that basis, the tribunal felt that it was unable to take the view that the bringing of the proceedings by the applicant and the conduct of the proceedings up to the point when the solicitor was instructed to discontinue, had been done by the applicant in a way which was  vexatious, abusive and otherwise unreasonable or which otherwise infringed Rule 14 nor that the bringing of the proceedings had been misconceived in such a manner as to infringe the said Rule.

11.	The tribunal then gave consideration to the way in which the applicant’s case had been conducted from the time the applicant’s solicitor received the instruction that the case was to be withdrawn.  The tribunal noted that the matter had originally been heard for two days on 24 and 25 November 2003 and had been adjourned.  As far as the tribunal can judge, the delay in the matter coming on again for hearing had apparently been on account of certain difficulties experienced by a witness who was to be called on behalf of the respondent.  Then the hearing dates were fixed in or about 22 January 2004 and the parties were notified accordingly.  Mr Hamill for the applicant had indicated that the withdrawal instruction had been received by the applicant’s solicitor on either Tuesday or Wednesday, the 16 or 17 March 2004.  The tribunal speculates that the applicant’s solicitor’s offices were probably closed on 17 March 2004, St Patrick’s day, and in all probability therefore, the instruction was received by 16 March 2004.  The tribunal is unaware of what time of day the instruction might have been received.  No action appears to have been taken by the applicant’s solicitor on Thursday 18 March, but a telephone call was made the following morning, Friday 19 March, notifying the respondent’s solicitor that the application was to be withdrawn.

12.	The tribunal regards the conduct on the part of the applicant’s solicitor in indicating (as she did in the fax of 19 March) that she would attend to move the application to adjourn and then in failing to attend and, furthermore, in failing adequately to instruct Counsel to attend to move the application in her stead, as not properly meeting the standards which might reasonably be expected by the tribunal in the conduct of proceedings.  By acting in this manner, the solicitor has shown a degree of discourtesy to the tribunal and has placed her instructed Counsel in a rather difficult position where, in attending upon other business, Counsel was then required to move the application clearly without full and proper instructions.  Having said that, this application for costs must be viewed in the light of any detrimental effect or consequence sustained by the respondent.  It is a fact that the respondent’s solicitor and Counsel respectively were aware on Friday morning, the 19 March, that the application was to be withdrawn. The attendance on the part of either representative might not necessarily have been required had the application been mutually agreed and had OITFET been informed and thus no costs of attendance might have been incurred if the matter was non-contentious.  The fact that Counsel attended instructed by the solicitor on behalf of the respondent was to move the application for costs. The tribunal therefore fails to see how the actions of the applicant’s solicitor, unsatisfactory though they might have been, from the time she received the instruction to withdraw the complaint up to and including the date of this hearing, have caused costs to be incurred by the respondent in any manner entitling the tribunal to make an Order against the applicant under Rule 14.  

13.	That being the case the tribunal declines to make an award of costs on foot of Rule 14 against the applicant and in favour of the respondent.  The applicant’s application is withdrawn and is dismissed by the tribunal, without further order.  

Chairman:

Date and place of hearing:	24-25 November 2003 and 22-25 March 2004, Belfast.

Date decision recorded in register and issued to parties: