THE INDUSTRIAL TRIBUNALS

CASE REF:	536/05

CLAIMANT:			Kathleen V Lewis

RESPONDENT:		Osborne King & Megran Ltd 
T/A Osborne King		

DECISION 

The claimant is ordered to pay to the respondent the sum of £3,750.00 (inclusive of Valued Added Tax) in respect of costs.

Constitution of tribunal:

Chairman:			Mr N Drennan QC

Members:			Mrs Kelly
				Mr Hall

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Murphys, Solicitors.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by John McKee & Son, Solicitors.	

REASONS

1.	The claim by the claimant was listed for hearing for the period 21 May 2007 to 1 June 2007.  The claimant’s claim is for unfair dismissal and/or sex discrimination and/or discrimination by way of victimisation.  For reasons set out in more detail later in this decision, the said claim of the claimant has had to be postponed and   re-listed for hearing.  The respondent, arising out of the said postponement, made an application for an Order for Costs to be made against the claimant.  The tribunal heard the said application on 23 May 2007.  At the conclusion of the hearing of the said application, the tribunal reserved its decision.  The claimant presented her claim to the tribunal on 21 March 2005.  In the circumstances, there was no dispute between the parties that the relevant Rules of Procedure, in determining any such application for costs, was contained in Rule 14 of the Industrial Tribunals Rules of Procedure 2004, set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 (‘2004 Rules of Procedure’).

2.	Rule 14 of the Rules of Procedure states as follows:-

“(1)	Where, in the opinion of the tribunal, the party has in bringing the proceedings, or a party or 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;

(b)	an Order that that party shall pay to the Department the whole or any part, of any allowances (other than allowances paid to members of tribunals), paid by the Department under Article 7(2) and (3) of the Industrial Tribunals Order to any person for the purposes of, or in connection with, his attendance at the tribunal.

		   …..

	(3)	An Order containing an award against a party (‘the first party’) in respect of the costs incurred by another party (‘the second party’) shall be -

		(a)	where the tribunal thinks fit, an Order that the first party pay to the second party a specified sum not exceeding £10,000.00;
	
            (b)	where those parties agree on the sum to be paid by the first party to the second party in respect of those costs, an Order that the first party pay to the second party a specified sum, being the sum so agreed;  or

	(c)	in any other case, an Order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as assessed by way of detailed assessment (if not otherwise agreed).

(4)	Where the tribunal has on the application of a party postponed the day or time fixed for or adjourned the hearing, the tribunal may make an Order, of the kinds mentioned in paragraph (1)(a) and (1)(b), against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.

The respondent made its application for the said Order for Costs pursuant to Rule 14(1) and further and in the alternative pursuant to Rule 14(4) of the 2004 Rules of Procedure.

3.1	It is necessary to set out, in some detail, the background and history of this matter, which led to the postponement of the above hearing and the application for an Order for Costs made by the respondent.  

3.2	The claim, as is now the normal practice of the tribunals where a claim of unlawful discrimination is made, was the subject of a Case Management Discussion held on 14 September 2006; at which time the Chairman of the tribunal gave certain relevant standard case management directions/orders, as set out in the Record of Proceedings dated 18 September 2006.  These included Orders for preparation and exchange of witness statements by both parties, a timetable for same, service by the claimant of a schedule of loss on the respondent and dates for hearing.  The dates for hearing, as set out in the Record of Proceedings were to be 29 January 2007 – 2 February 2007.  Further the witness statements of the claimant and any witness she wished to call were to be provided to the respondent by 17 November 2006.  Provision was also made for the subsequent service of the respondent’s witness statements and any supplementary witness statements by the claimant or any of her witnesses.  The claimant’s schedule of loss was also to be served by the claimant on 17 November 2006.  This timetable for the preparation and exchange of witness statements, between the parties, was clearly made, having taken account of the said dates of hearing.  

3.3	The claimant failed to serve any witness statements or her schedule of loss by 17 November 2006.  Following prompt correspondence by the respondent’s solicitors, dated 20 November 2006, as provided for in the Notice at the conclusion of the said Record of Proceedings, the tribunal arranged a further Case Management Discussion, which was held on 15 December 2006.  On 17 December 2006, the claimant’s own witness statement was served.  As appears from the Record of Proceedings of the hearing on 15 December 2006, it is clear that there was agreement that the late service of the claimant’s witness statement had given insufficient time for the respondent to prepare and serve its witness statements and for the claimant to serve any supplementary witness statement, as envisaged under the original timetable.  In the circumstances, the tribunal agreed, on the application of both parties, to vacate the original dates for hearing and to re-list the matter.  It was further agreed that the claim should be re-listed for the dates set out above, namely 21 May 2007 - 1 June 2007.  No schedule of loss had been served by the claimant by the date of said Case Management Discussion. 

3.4	The respondent provided its witness statements on 5 March 2007.  However, the claimant did not provide her supplementary witness statement until 14 May 2007 - one week before the commencement of the hearing.  When she did so, there was no suggestion by her representatives that the claimant also intended to serve any other witness statements, prior to the hearing.  Despite the lateness of the service of the above statement, the respondent was able to deal with the contents of the supplementary statement of the claimant at a previously arranged                     pre-trial consultation held by the respondent with their counsel, following the service of the said supplementary statement.  This was, in the opinion of the tribunal, somewhat fortuitous for the claimant.  The supplementary witness statement was undated and unsigned, which in the opinion of the tribunal was clearly unsatisfactory; but in the judgment of the tribunal is of no relevance to the said application for the said Order for Costs.

3.5	The tribunal was informed that, in the course of a brief informal conversation between counsel in the Bar Library, on or about 16 May 2007, Mr Potter mentioned to Mr Mulqueen that the claimant was going to call, to give oral evidence, her general practitioner.  Mr Mulqueen accepts that he made no response - as he assumed that, before this would occur, the report from the general practitioner/or a witness statement would be furnished to him, albeit late; and that, subject to its contents, he would then consider his client’s position and take appropriate instructions.

	In the above context, it should be noted that the respondent had issued a Notice for Further and Better Particulars dated 10 May 2005.  The Notice, at paragraph 21, had asked, “please provide details of all loss and damage as claimed by the claimant”.  In a reply, dated 7 July 2005, the claimant had replied, “the claimant has not been gainfully employed since the effective date of termination as she has been certified unfit to attend work by her general practitioner.  Further detail will follow in due course regarding alternations to this position”.

	The respondent also by Notice dated 10 May 2005 sought discovery of “any medical note, record or report which is relevant to these proceedings and/or upon which the claimant intends to rely”.  By letter dated 14 December 2006, the respondent’s solicitor had again sought “a copy of your client’s GP notes and records also copy of any other report upon which you intend to rely at the tribunal hearing”.  It is correct to note that, in or about March 2007, the claimant’s GP notes and records were furnished by the claimant’s representative to the respondent’s representative.  These were not accompanied by any report from the General practitioner.

	In the course of the claimant’s witness statement the claimant made various references to visits she had made to her general practitioner and the state of her health and mind.  She also stated, inter alia, “I am in the process of obtaining a letter from my doctor charting this history”.

	Prior to the commencement of the hearing, no such letter had been produced by the claimant to the respondent’s representative.

	Prior to the commencement of the hearing, and in the absence of any other medical evidence from the claimant, the respondent had clearly decided to defend the matter without obtaining any medical evidence of its own.

3.6	By letters dated 27 April 2007 and 15 May 2007, the respondent’s solicitors sought the schedule of loss, which had still not been provided despite the previous case management directions/orders of the tribunal.  This correspondence was neither acknowledged or replied to.

3.7	At the commencement of the hearing, Mr Mulqueen informed the tribunal that a supplementary witness statement had been provided to the respondent’s solicitors by fax, late in the afternoon of 18 May 2007.  There had been no prior indication that such a statement was to be made nor was a copy arranged to be sent, as a courtesy given the lateness of the service, to the respondent’s counsel.  As it happened, the respondent’s solicitor’s office was closed for training on 18 May 2007.  So, the respondent’s representative’s first knowledge of the statement was immediately prior to the commencement of the hearing.  The statement was undated and unsigned and contained an additional sentence which was not ultimately contained in the final dated and signed version.  Indeed, the said final version was dated 21 April 2007; but the tribunal accepts that the date was an error and it was in fact signed and dated on 21 May 2007 and inclusion of the sentence was a typographical error.  Again, the absence of the date and signature and the inclusion of the above sentence, in error, were of no significance or relevance, in the opinion of the tribunal, to this application for an Order for Costs.

	The explanation for the late service of the statement was that it had been the subject of discussion between the claimant and her legal representatives, the precise nature of which was stated to be subject to legal professional privilege; and it had only been decided to rely on the said witness statement immediately prior to the service of the statement on 18 May 2007.

	The tribunal had made its case management directions/orders, as set out in the Record of Proceedings, pursuant to the provisions of Rule 10 of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘2005 Rules of Procedure).

	Mr Mulqueen, sensibly in the tribunal’s view, did not ask the tribunal to refuse to admit the said statement, albeit it had been served in breach of the tribunal’s said orders/directions; but did seek time to consider the contents of the said statement and to consult with his witnesses and, if necessary and appropriate, to serve further witness statements on the respondent’s behalf.  He asked to do this for the remainder of 21 May 2007, which time the tribunal granted, without objection from the claimant’s representative.  Mr Mulqueen made an application for an Order for Costs arising out of the said postponement.  The tribunal decided it would consider the respondent’s application at a later date.  Save as set out above, the tribunal was given no proper explanation why this statement was not produced until, in effect, the morning of the hearing and without any warning.  Clearly, if it had been served, even with the claimant’s supplementary witness statement, the necessity for the respondent to seek the above adjournment probably would have been avoided.  In the event, Mr Mulqueen was in a position, by the commencement of the hearing on 22 May 2007, to serve additional witness statements by the respondent, in response to the additional witness statement by the claimant’s witness.

3.8	Unfortunately, the difficulty raised by the service of the additional witness statement by the claimant was not the only issue raised at the commencement of the hearing.

	Mr Mulqueen referred to the fact that he understood Mr Potter was intending to call the claimant’s general practitioner, as referred to previously, and that no report/or witness statement had been served; and indeed, he understood from Mr Potter, that Mr Potter did not intend to serve any such report and/or witness statement.  At this point, the tribunal asked Mr Potter whether the claimant was also making a claim for compensation for personal injury.  He confirmed that the claimant was making such a claim.  Mr Mulqueen objected and stated that at no time had such a claim ever been made by the claimant in her ‘pleadings’ or referred to by her representatives in correspondence or at the said Case Management Discussions.  He further stated that, despite the tribunal’s case management orders and the recent correspondence seeking the schedule of loss, no such schedule had been produced.  Clearly, if such a schedule had been produced, it should have indicated the intention to make such a claim, in addition to any other claim for injury to feelings.

	Mr Potter, at all times strenuously opposed the submission of Mr Mulqueen that he was required to furnish a report from his client’s general practitioner and/or to produce a witness statement from the doctor, before calling her to give oral evidence.  He submitted that this would only have been required, if he was going to rely on the evidence of a consultant.  

	The tribunal would accept that it does not normally require, on foot of its standard case management order requiring a party to prepare and exchange a witness statement, for a doctor to serve a witness statement in addition to serving a report - provided the report contains all matters which the doctor wishes to state as part of his evidence on behalf of the claimant.  If it does not, then a witness statement would also be required.

	It is clearly a matter for a party what medical evidence it wishes to call; but whatever evidence is sought to be called it is subject to the case management orders made by the tribunal for the preparation and exchange of witness statements.  The case management orders, in this case, were clear and required the claimant and any witness she wished to call to prepare and exchange a witness statement.  Despite the terms of the reply to the Notices for Particulars/Discovery and the tribunal’s case management orders, no report (and/or witness statement) from the claimant’s general practitioner was produced prior to the commencement of the hearing.  Nor was any letter from the General practitioner, as referred to in the witness statement of the claimant, served on the respondent’s representative.

	The whole purpose of case management is to ensure that, insofar as possible, “cards are put on the table in advance of the hearing and no party should be taken by surprise”.  Indeed, the whole idea of case management is consistent with the terms of the overriding objective to deal with cases justly (see further Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, which govern, by virtue of the transitional provisions contained therein, these proceedings.  

	These include a duty on the parties to assist the tribunal to further the overriding objective.  The tribunal does not accept the submission made by Mr Potter that his client was not required to serve, prior to the commencement of this hearing, on the respondent a medical report and/or witness statement from the claimant’s general practitioner whom he intended to call to give evidence; and it further does not accept the distinction made by him between general practitioner and a consultant in relation to the necessity to provide such a report/witness statement. 

	The tribunal made it clear that if the general practitioner was to give oral evidence, as indicated by Mr Potter, then either a report (or a witness statement) was required, as had already been set out in the case management directions/orders made by the tribunal.

	Mr Mulqueen reserved his position whether he would required to seek his own medical evidence and/or an adjournment, until he had sight of any such report and/or witness statement.

	The tribunal asked the claimant’s representative to inform the tribunal on 22 May 2007, the commencement of the hearing after the initial adjournment on 21 May 2007, when such a report/statement would be available - so that it could determine if and when this claim could continue to be heard on the days which had been allotted to it.

	In addition, the tribunal also ordered that the schedule of loss must be served before the commencement of the hearing on 22 May 2007.  It appeared that there was on the claimant’s file a draft schedule of loss but this had not, for some reason, been served on the respondent’s representative, despite the terms of the tribunal’s Order and/or the correspondence, referred to above.

3.9	At the commencement of the hearing on 22 May 2007, a schedule of loss was produced by the claimant, which included reference to a claim for personal injury, in addition to a claim for injury to feelings. Reference is required to be made elsewhere, in this decision, to the said schedule.

3.10	Mr Potter then made, on his client’s instructions, a number of applications, relating to his client’s concern arising out of exchanges between the tribunal Chairman and Mr Potter, at the hearing on 21 May 2007, in relation to the matters referred to in the previous paragraphs of this record.  In particular, he applied for the tribunal to recuse itself.  The tribunal, having heard detailed submissions from both representatives refused to do so.  In making the application, the claimant suggested that she had concern that the said exchanges were sufficiently personal and/or of a sufficiently personal nature, that Mr Potter’s continued involvement in the matter, on her behalf, might have a prejudicial effect on the hearing of the case and the outcome of her claim.  In fairness, it should be noted that at no time, either at the time of the exchanges, or in the course of this application, did Mr Potter make any specific reference to any specific matter relied upon by his client in relation to the said exchanges, the subject matter of the said application for the tribunal to recuse itself.  The tribunal does not consider it necessary to set out, for the purposes of this application for an Order for Costs the detailed reasons given orally for its refusal to recuse itself.  The tribunal accepts that the claimant had given instructions to the claimant’s representatives to make the said application; and further does not accept that the said application was made for any ulterior motive, as suggested by Mr Mulqueen.  He said that it had been made to avoid any potential application for an Order for Costs, which Mr Mulqueen had indicated, at the time of the postponement on 21 May 2007;he was going to make.  The tribunal had indicated it would not deal with the application at that time; but would do so later, in the proceedings, as it considered appropriate.

3.11	In the course of the afternoon of 22 May 2007, the claimant furnished a report from the claimant’s general practitioner upon which she wished to rely.

3.12	The report, inter alia, set out the history of the claimant’s attendance with the general practitioner and relevant treatment given.  In particular, it set out in the final paragraph the general practitioner’s conclusion and her diagnosis which stated:-

“In summary, Ms Lewis has been suffering from severe anxiety and depression, requiring antidepressants and counselling since November 2004.  This seems to have been brought on initially by stress at work, and following her dismissal, by stress related to this dismissal and her subsequent legal action.  I am not aware of any non-work factors contributing to her stress during this time.”… ”

3.13	Mr Mulqueen, having obtained instructions, then sought an adjournment in view of the contents of the said report and in particular the said diagnosis in order to obtain a report from a consultant psychiatrist.  He referred, in particular, to the diagnosis set out in the report and the alleged connection to the actions of the respondent, which matters he said would be relevant to not only issues of remedy but also liability.  He said his client would wish to be in a position to challenge any such prognosis.  He also indicated that such a prognosis, if found by the tribunal, could attract a considerable award of damages having regard to the range of values set out in the Green Book.  It was obvious that, if the tribunal granted the said application to adjourn, then the case would have to come out of the list, since any medical report from a consultant psychiatrist would not be able to be obtained for some period of time.  Mr Potter, on behalf of the claimant, did not object to the said application.  He repeated again his contention that it had not been necessary for the claimant’s general practitioner to produce a report and/or witness statement, which the tribunal does not accept, and that the respondent, on the basis of the general practitioner’s notes and records and the contents of the claimant’s witness statement, could have decided to obtain its own psychiatric evidence in advance of the hearing; but it clearly had decided not to do so.  However, he did not dispute that the respondent should have the opportunity to obtain its own report, if it now wished to do so.

3.14	In light of the foregoing, the tribunal granted the application to postpone this matter.  Mr Mulqueen renewed his application for an Order for Costs, referred to earlier.  He made clear that he would be seeking an Order for Costs in relation to the postponement of the whole hearing and also the hearing on 21 May 2007.  The tribunal agreed to hear the said application on 23 May 2007.  

3.15	In relation to the schedule of loss, which had now been furnished by the claimant, Mr Mulqueen indicated that the schedule of loss which had been furnished was not sufficient and had not set out all the necessary detail; and further the claimant had not furnished all relevant supported documentation.  The schedule, whilst setting out the claim for loss of earnings, did not set out the identity of the persons from whom the claimant had earned the said sums following her dismissal.  In addition, whilst it made a claim for various matters, such as BUPA/life cover, permanent health insurance, it did not set out in any way the sum that was to be claimed in respect of each these matters.  It was agreed that the tribunal would make relevant Orders for Additional Information and/or Discovery/Inspection – which have been dealt with in the Record of Proceedings of the hearing of this matter on 21 – 23 May 2007.

4.	Under Rule 14(1) of the 2004 Rules of Procedure, it is necessary for a tribunal, when considering an application for costs under the said Rule to embark on a two-stage process.  Firstly, the tribunal has to consider whether it has been established that the relevant party has satisfied the terms of Rule 14(1) – for example the finding of unreasonable conduct.  The tribunal has to consider, secondly and separately, whether to exercise its discretion to make an Order for Costs (see further Criddle  v  Epcot Limited [UKEAT/0275/05].  In the case of Lodwick  v  London Borough Southwark [2004] IRLR 554, a case of unfair dismissal/breach of contract, Lord Justice Pill made it clear that, when considering whether an Order for Costs should be made under the said Rule:-

“To order costs in the employment tribunal is an exceptional course of action and the reason for, and the basis of, an Order should be specified clearly; especially for a sum as substantial as £4,000.00 is involved.”

There is nothing in the Rules of Procedure which states that an Order for Costs should be considered the exception rather than rule.  Certainly, however, that has been the view taken in relation to the exercise of the power under the said Rule governing claims, such as unfair dismissal/unlawful discrimination (see further the case of Gee  v  Shell (UK) Limited [2003] IRLR 82).

However, as Burton P, in the case of Salinas  v  Bear Stearns International Holdings [2005] ICR 1117, stated, the reason why Costs Orders are not made in the substantial majority of cases is that the tribunal Rules contain a high hurdle to be surmounted, before such an Order can be considered.  Those Rules, to which Burton P was referring, were the preconditions which require to be considered before the issue of the discretion arises under Rule 14(1).  However, it has to be noted that, when costs are awarded under Rule 14(4) there is no need for a tribunal to find that a party has acted vexatiously, abusively, disruptively or otherwise unreasonable – Ladbroke Racing Limited  v  Hickey [1979] ICR 525.  Under Rule 14(4) of the 2004 Rules of Procedure the tribunal has a broad discretion to make any such Order for Costs as befits the justice of the case.  In exercising that discretion, it is likely that a tribunal will always have regard to the circumstances in which the said postponement/adjournment has come about.  In the case of Beynon  v  Scadden [1999] IRLR 700, it was made clear that the Costs Rules are discretionary, and, as such, cannot be restricted by case law.  Matters to be derived from the case law can only be factors that may or may not be given weight by the tribunal.  In any event, any Order for Costs that is made must be compensatory and not punitive.  (See further Lodwick  v  London Borough of Southwark [2004] IRLR 554.)  In the case of McPherson  v  BNP Paribas (London Branch) [2004] IRLR 558, the Court of Appeal held that there is no requirement for a causal link between the party’s unreasonable behaviour and the costs incurred by the receiving party.  “In exercising its discretion to award costs, the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct.  However, the discretion is not limited to those costs that are caused by or attributable to the unreasonable conduct.  The unreasonable conduct is a pre-condition of the existence of the power to order costs and is also a relevant factor to be taken into account in deciding whether it makes an Order for Costs and the form of the Order, but that it is not the same as requiring a party to provide that specific unreasonable conduct caused particular costs to be incurred.)

5.	Mr Mulqueen submitted, in relation to his said application for an Order for Costs, that the claimant in making her application for the tribunal to recuse itself acted vexatiously and frivolous.  The previous wording of Rule 14(1) referred to ‘vexatious and frivolous’.  In the case of Marler (ET) Limited  v  Robertson [1974] ICR 72, a court stated in relation to same:-

	“If an employee brings a hopeless claim not without any expectation of recovering compensation, but out of spite to harass his employers over some other improper motive he acts vexatiously, and likewise abuses the procedure.”

	Under the 2004 Rules of Procedure, the word frivolous has been omitted; but, in the opinion of the tribunal, this has not made any significant difference.

6.	Although the tribunal considered the application for the tribunal to recuse itself was of little or no substance, in the absence of any specific matter relied on by the claimant, as set out above, and was bound to fail, it accepts the claimant in giving instructions to her representatives to make the said application acted in good faith.  It does not accept that it was brought for any improper motive, as suggested by Mr Mulqueen, to allow her to put her ‘house in order’ and to avoid the possibility of any Order for Costs.  It is not therefore satisfied that by making the said application, the claimant or representatives in conducting the proceedings acted vexatiously.  Even if the tribunal is wrong, the tribunal, in its discretion, is not satisfied it should make an Order for Costs in the circumstances, arising out of the fact that the claimant had made such an application.

7.	However, the tribunal is satisfied that the claimant or her representative in the conduct of the proceedings acted ‘otherwise unreasonably’ in failing to serve the additional witness statement, on behalf of the claimant, until, in reality, the morning of the hearing.  The tribunal was informed that the decision not to serve the witness statement was taken after discussions between the claimant and her representative.  The discussions were the subject of legal professional privilege.  Such privilege was not waived for understandable and proper reasons.  The tribunal was therefore not in a position to determine whether the failure was attributable to the actions of the claimant’s representative in their conduct of the proceedings rather than the claimant.  In the circumstances the tribunal came to the conclusion the claimant therefore acted otherwise unreasonably, having regard to the serious breach of the tribunal’s previous orders and directions in relation to the service of such witness statements on the respondent.  It was therefore inevitable that the hearing had to be adjourned on 21 May 2007 until 22 May 2007.  In the circumstances, the tribunal considered that, in the exercise of its discretion an Order for Costs should be made pursuant to Rule 14(1) of the 2004 Rules of Procedure.

If the statement, albeit late, had been served with the claimant’s supplementary statement, for example, the tribunal might have reached a different conclusion in relation to its discretion.

8.1	As set out above, there was a failure to serve the general practitioner’s report and/or witness statement until the second day of the hearing.  To fail to do so was another serious breach of the orders of the tribunal to serve such a report/witness statement in advance of the hearing; and, as set out above, the tribunal rejects any suggestion by the claimant’s representative that it was not necessary to do so and the doctor would have been entitled, since she was a general practitioner, to attend the tribunal to give oral evidence without any such report/witness statement having been given in advance to the respondent.  In light of the foregoing the tribunal came to the conclusion that the failure to serve the report/witness statement was the decision of the claimant’s representative and that therefore the claimant’s representative had thereby concluded the proceedings otherwise unreasonably.

8.2	Again, having regard to the contents of the said report and the prognosis given by the doctor, as set out in the report, it was always likely to result, as it did, in the respondent having to make an application for a postponement of the hearing in order to obtain its own medical evidence and the necessity, in the circumstances, for the hearing to be adjourned to a later date.  

8.3	In deciding whether to exercise its discretion to make an Order for Costs, pursuant to Rule 14(1) of the 2004 Rules of Procedure, the tribunal took into account not only the serious breach of the tribunal’s orders/directions in relation to the provision of witness statements but also the replies by the claimant to the respondent’s Notices for Discovery and Further Particulars – where the claimant had been given every opportunity to produce any medical report upon which it intended to rely.  The situation, in the tribunal’s view, was compounded by the failure of the claimant to provide any schedule of loss, which would have alerted the respondent to the specific claim for personal injury compensation.  The failure to disclose such a said medical report, in advance of the hearing, is totally contrary to the present day practice of the tribunals, and in light of the terms of the overriding objection.  As stated previously, the parties are under a duty to assist the tribunal to further that objective.  This the claimant and/or her representative failed to do.  In addition, as a result of the above failure the hearing had to be adjourned to a new date to be fixed, unlike the postponement on 21 May 2007, as set out above.  In such circumstances the tribunal was satisfied, in its discretion, an Order for Costs was appropriate.

9.	Although the failure to serve a schedule of loss until 22 May 2007, and which did not provide the necessary details and/or supporting documentation which has had to be subject of further Orders, was a further example, in the view of the tribunal, of otherwise unreasonable conduct on the part of the claimant or the claimant’s representative; the tribunal did not consider, in its discretion, that it should make an Order for Costs reason of such conduct.  The tribunal was of the view that, although the failures in relation to the schedule of loss should not have occurred, it probably would have still have been possible for the hearing to have been continued, without an adjournment, if the only difficulty had been the failure to provide the schedule of loss in time.  By flexible use of the tribunal’s procedures, in relation to the giving of evidence in relation to the financial loss claimed, as set out in the said schedule, the tribunal is of the opinion that the substantive hearing would still have been able to continue.

10.	The respondent, in making the application for an Order for Costs, firstly sought the costs of the said three days of hearing, which included the hearing on 23 May 2007 when the application for the Order for Costs arising from the said postponement/adjournment was heard by the tribunal.

Under the said 2004 Rules of Procedure, the tribunal is not able to take into account the means of the claimant in relation to the amount of any Order for Costs that is made by the tribunal (see Kovacs  v  Queen Mary & Westfield College [2002] IRLR 414).  Further, the tribunal, when making such an Order must make the Order against a party, namely the claimant; and it must do so whether or not it has concluded the claimant or the claimant’s representative has concluded the proceedings otherwise unreasonably..  The power to make a Wasted Costs Order, under the 2005 Rules of Procedure, do not apply to these proceedings.

11.	The respondent produced to the tribunal a schedule of loss, claiming, in the case of the solicitor, who was in attendance on all three days, a sum of £763.75 (inclusive of VAT) per day; and in the case of counsel a sum of £940.00 (inclusive of VAT).  There was no suggestion by the claimant’s representative that the sums claimed, in themselves, were not an appropriate basis for the daily costs/ fees of a solicitor and barrister in such a matter.  The respondent’s counsel’s daily fee was based not on a brief fee but on the basis of a refresher fee, which the Tribunal considered appropriate and reasonable (See further Cooper v  Weatherwise (Roofing and Walling) Limited [1993] ICR 81 EAT).  The tribunal was further satisfied that these costs were caused by the unreasonable conduct of the claimant/ the claimant’s representatives which had resulted in the said adjournment/postponement of this matter, as set out above.

12.	The tribunal came to the conclusion that, in making an Order for Costs in this matter, it would do so by ordering a specified sum to be paid.  In regard to the costs sought in relation to the first three days of hearing, the tribunal took into account a large proportion of the second day’s hearing was taken up by the application by the claimant for the Tribunal to recuse itself.  The tribunal further had regard to the fact, that to make such an Order for Costs, was the exception rather than the rule.  Having taken into account the sums claimed by the respondent in relation to the first three days of hearing of this matter it decided that an appropriate award of costs would be in the sum of £2,250.00 (inclusive of VAT).

13.	In addition to the claim for the costs of the said three days of hearing, the respondent also sought the costs of the respondent’s counsel for the remaining dates of hearing, as set out in the Notice of Hearing, which would require to be paid by the respondent to its counsel.  Mr Mulqueen submitted, and Mr Potter properly did not seek to challenge, that he had ‘cleared his diary’ for the full period of the dates for hearing and would be most unlikely, given the nature of his practice to obtain any court/tribunal work for these days of hearing.  Mr Mulqueen also said that he believed that he had refused instructions for another hearing during this period; but which he had had to refuse, in view of his instructions in this matter.  Mr Mulqueen readily accepted that he would be able to do paperwork during this period, which he would not otherwise have been able to do.

14.	In the tribunal’s view, the costs of the respondent’s counsel during the said period were also caused by the claimant’s representatives said unreasonable conduct, which had resulted in the adjournment of this matter, as set out above.  However, the tribunal was of the view that, although it accepted that Mr Mulqueen would have been most unlikely to obtain alternative court/tribunal work for the reminder of the first week of hearing, it did not consider that there was any such certainty for the second week of hearing.  Also, the tribunal was conscious that it was necessary to take into account the ability of the respondent’s counsel to carry out additional paperwork during that period.  In the circumstances, the tribunal was not prepared to allow, under this head of claim, any costs in relation to the second week of hearing; but to allow a sum of £1,500.00 (inclusive of VAT), in addition to the sum set out above, to reflect Counsel’s costs incurred by the respondent for the period  24 – 25 May 2007.

15.	As stated above, the respondent made its application not only under Rule 14(1) but 
also Rule 14(4) of the 2004 Rules of Procedure.  In exercising its discretion, if it had 
been necessary to do so, the tribunal would have concluded, for the same reasons to those set out above when exercising its discretion under Rule 14(1), that an Order for Costs should be made under Rule 14(4), (in the alternative), arising from the postponement of the hearing on 21 May 2007 and the subsequent adjournment of the whole matter to a later date.  Under Rule 14(4), the pre-conditions to be found before the discretion is exercised do not require to be satisfied.  The Tribunal was further satisfied that the said costs were caused by the said postponement and subsequent adjournment.

16.	The tribunal therefore ordered the claimant to pay to the respondent the sum of £3,750.00 (inclusive of VAT) in respect of costs.

Chairman:

Date and place of hearing:	23 May 2007, Belfast

Date decision recorded in register and issued to parties: