45 Stafford v Fermanagh & South Tyrone Terrorist Victims Association & Anor(Application for Review) [2004] NIIT 1169_02 (3 September 2004)

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 1169/02

    APPLICANT: Ian Stafford

    RESPONDENTS: 1. Fermanagh & South Tyrone Terrorist Victims Association

    2. James Dixon

    DECISION ON APPLICATION FOR REVIEW

    In exercise of the power conferred on me by Rule 13(5) of the Industrial Tribunals Rules of Procedure 2004, contained in Schedule 1 of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (Northern Ireland) 2004 ['the 2004 Rules'], I refuse the application by the respondents for a review on the grounds that in my opinion it has no reasonable prospect of success.

    REASONS

  1. The decision in summary form was recorded in the Register and issued to the parties on 23 April 2004. I had given my decision orally at the conclusion of the hearing on 2 April 2004 and stated that I would give my reasons in writing in due course.

  2. The decision was that:-

    3. (i) the originating application of the applicant was dismissed, following its withdrawal; and

    (ii) the application of the respondents for an Order for Costs was dismissed.

  3. By letter dated 24 May 2004, and received by the tribunal on 24 May 2004, the respondents have sought a review of the decision that their application for an Order for Costs was dismissed.

  4. The grounds on which a tribunal may review a decision are:-

    5. (a) that the decision was wrongly made as a result of an error on the part of the staff of the Office of the Tribunals;

    (b) the party did not receive notice of the proceedings leading to the decision;

    (c) the decision was made in the absence of a party;

    (d) new evidence has become available since the making of the decision, provided that its existence could not have been reasonably known of or foreseen; or

    (e) the interests of justice require such a review.

  5. Under the 2004 Rules, any application for a review must be made within 14 days of the date on which the decision has been sent to the parties. The application for the review is therefore out of time. However, the tribunal has power under Rule 17 of the 2004 Rules, on the application of a party, to extend the said time limit. I am satisfied that the applicant's letter constitutes an application for such an extension of time. My reasons for refusing the respondents' application for review, as set out herein, are not related to the said issue of time, but solely in relation to the grounds for a review, as set out above. I do not consider that such an application for extension of time has no reasonable prospect of success; and, if the application for review had not been refused, the application for an extension of time would have had to be determined at the outset of any hearing to determine the application for review.

  6. The decision was in summary form and no request has been received as required by the Rules of Procedure to give the decision in extended form. Thus, I did not set out in the decision all the submissions of the parties and/or the relevant principles of law that I considered before I made my decision.

  7. In the letter dated 24 May 2004, Mr Dixon who represented himself and also the first-named respondent at the hearing stated that he was relying on ground (e), as set out in Paragraph 4. herein – namely 'the interests of justice require such a review'.

    8. In seeking such a review, Mr Dixon, in essence, in his said letter relied on the following matters:-

    (i) It was Mr Dixon's understanding that the hearing on 2 April 2004 was directional, the purpose of which was to determine whether there was sufficient evidence to warrant a full hearing, regarding the award of costs.

    (ii) Mr Dixon was unable to make submissions as to why the applicant had acted 'scandalously, frivolously, vexatiously, disruptively or otherwise unreasonably' pursuant to Rule 12(i) of the Rules of Procedure; and when he attempted to do so, the Chairman would not permit him to make such submissions and he complied in the understanding that this was a directional hearing and he would have the opportunity to do so at a full hearing.

    (iii) The applicant had been dismissed for gross misconduct, namely but not limited to 'refusal to carry out a reasonable work instruction'. It was not as a result of the protected disclosure to the Northern Ireland Audit Office/Northern Ireland Office, which had not been cited by the applicant in his originating application or in the original letters of suspension and dismissal.

    (iv) The Decision referred to the fact that Mr Dixon had been unable to provide any supporting documentation for his claim; but such documentation was available and Mr Dixon had not anticipated it would be needed for a directional hearing.

  8. By letter dated 11 February 2004 to the second-named respondent, who was the representative for both respondents, he was informed by the tribunal of the following:-

    9. "I would like to advise that a directions hearing has been scheduled for the above matters. The hearing is to consider the notification of the applicant's withdrawal and the respondents' objection to it and request for costs".

    As set out in the said letter, the hearing was originally listed for hearing for 9 March 2004. By further letter dated 3 March 2004, the respondents were informed by the tribunal that the said hearing originally scheduled to take place on 9 March 2004 would now take place on 2 April 2004.

    The respondents were therefore informed by the said correspondence from the tribunal the purpose of the hearing. I am satisfied by reason of the terms of the said correspondence, that there could have been no misunderstanding by the respondents as to the purpose of the hearing and, in particular, they could not have understood that the hearing was to determine whether there was sufficient evidence to warrant a full hearing regarding the award of costs. Further, at the outset of the hearing, as set out in Paragraph 2. of the decision, I confirmed, with both representatives the history of the various relevant steps that had taken place in the course of these proceedings culminating, as set out at Paragraph 2(xi), with - "A hearing was therefore arranged for 2 April 2004 to consider the said withdrawal, and the respondents' objection to same and their application for costs". As set out in Paragraphs 3.1 and 3.2 of the decision, I satisfied myself that the only further matter which required to be determined by the tribunal, after the dismissal of the originating application, was the application by the respondents for costs. Mr Dixon, as representative of both respondents, then proceeded to give to me submissions in relation to the said application for costs.

    In the circumstances, I am satisfied that Mr Dixon was in no doubt that the purpose of the hearing, insofar as relevant for the purposes of this application for review, was to determine the respondents' application for costs, following the withdrawal by the applicant of his originating application, and that he acted accordingly throughout the course of the hearing.

  9. Mr Dixon, with the assistance of a friend, Mr Wesley Mitchell, made lengthy submissions, on foot of the said application, that the applicant in bringing and conducting the proceedings had acted scandalously, frivolously, vexatiously, abusively, disruptively or otherwise unreasonably. It is not correct that Mr Dixon was prevented at any time during the hearing from making his submissions or was instructed not to do so. It is correct that, during the course of his submissions, I explained to Mr Dixon that Rule 12(1) of the Industrial Tribunals Rules of Procedure 1996 ['the 1996 Rules'], and which were in operation at the material time, did not give to a tribunal the power to make an Order for Costs, as he was attempting to submit, where a party's actions in bringing the proceeding had been misconceived; and that such power, defining misconceived as including having no reasonable prospect of success was provided in the draft 2004 Rules, (which were not then in operation) after replacement of the term 'frivolously'. I further explained to Mr Dixon that, in the absence of such power, any submissions which he wished to make had to be within the terms of the 1996 Rules. Indeed, Mr Dixon contended that, regardless of the absence of such power under the 1996 Rules, he had established in his submissions to the tribunal that the applicant had acted scandalously, frivolously, vexatiously, abusively, disruptively or otherwise unreasonably.

    10. In the summary decision, I have not set out the detailed submissions of both parties, but have set out the thrust of their submissions and in Paragraph 4.4 the reasons for my decision, in the light of those submissions, to refuse to make an Order for Costs.

  10. At the conclusion of the submissions by both parties, I rose to consider my decision, which I then gave orally. Before I gave my decision orally, I gave both representatives the opportunity, if they wished, to say anything further, before the decision was given by me. Neither wished to do so.

  11. As stated in Paragraph 3.3 of the decision, I confirmed with Mr Dixon that, in light of the decision on the preliminary issues issued on this matter on 10 April 2003 and the withdrawal of the application by him for a review of that decision, he was fully aware that the substantive hearing following the decision on the preliminary issues would be to deal with the complaints of the unfair dismissal, relating to the applicant's contention that he was dismissed because of the protective disclosure, as referred to in the said decision; and for which complaint there was no requirement for the applicant to show that he had 12 months' continuous employment with the first-named respondent. This decision on the said preliminary issues was not appealed. Mr Dixon, in his letter of 24 May 2004, is seeking to re-open matters, with regard to the issue of protected disclosure, which were the subject of submissions by Mr Dixon at the hearing. These were considered by me but rejected for the reasons set out in the decision after the said confirmation by Mr Dixon and in the absence of any appeal of the decision on the said preliminary issue.

  12. It is correct, in Paragraph 4.4 of the decision, I have indicated that if I had decided to make an Order for Costs, the respondents would have had a number of difficulties in relation to the amounts claimed including the absence of any supporting documentation. However, as I also made clear, in view of my decision not to make an Order for Costs, I decided it was not necessary for me to reach to any determination with regard to any of the sums claimed.

  13. The 'interests of justice' ground of review has a potential to cover a wide category of cases. However the tribunal's discretion in relation to what is included in not unlimited; and must be exercised judiciously and with regard, not just to the interests of the party seeking the review, but also to the interests of the other party and to the public interest requirement that there should, so far as possible, be finality of litigation. It is stated in Harvey on Industrial Relations and Employment Law, Division T, Paragraph 1139:-

    14. "Cases in which the only application is made under Paragraph (e) fall into two broad categories; those in which there has been a 'procedural mishap' of one sort or another … and those in which the tribunal's decision has been undermined by events occurring shortly thereafter".

    Mr Dixon, in his letter of 24 May 2004, appears to be suggesting that there has been such a procedural mishap of one sort or another. In light of the foregoing, and the reasons set out herein, I am satisfied it is not appropriate to review the decision of the tribunal, as in my opinion it has no reasonable prospect of success.

    Chairman:

    Date: September 2004

    Date decision issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/45.html