THE INDUSTRIAL TRIBUNALS

CASE REF:  219/07

CLAIMANT:			Naomi Armstrong

RESPONDENT:		Western Education and Library Board

DECISION ON COSTS
It is the unanimous decision of the tribunal that the respondent’s application for costs against the claimant is hereby dismissed.

Constitution of Tribunal:
Chairman:		Ms Crooke
Members:		Mr Hesketh
			Mr Kearns

Appearances:
The claimant was represented by Mr Warnock, Barrister-at-Law, instructed by Fergusons Solicitors.
The respondent was represented by Miss F Lamont, Barrister-at-Law, instructed by the Education and Library Board’s Solicitors.

1.	The claimant through her solicitors gave notice of intention to withdraw her claim by letter dated 7 March 2008.  The time of transmission of that letter was 16:59 hrs on 7 March 2008.  A later fax was sent at 17:39 hrs on the same date stating that the claimant wished to withdraw her claim but that there was no agreement between the claimant and the respondent as to costs.

 2.	The respondent applied for costs from the claimant on the basis that the claimant’s claim had been misconceived and further that the claimant’s conduct of the case had been unreasonable.

THE RELEVANT STATUTORY PROVISION

 3.	The relevant provision considered by the tribunal was Rule 40 and Rule 41 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

 4.	Mr Warnock stated that Miss Lamont denied that there had been some discussions in the week ending 7 March 2008.  Mr Warnock accepted that Miss Lamont did not have any authority to settle the case and on or around 12 noon on Friday 7 March 2008 Miss Lamont made it plain that the case would be fought and not settled.  Mr Warnock informed his instructing solicitor who was absent from the office on other business, but a message was conveyed to the claimant by a member of staff of the instructing solicitor’s office.  The claimant subsequently spoke with her solicitor in or around 4.00pm of 7 March 2008 and a very short time thereafter gave instructions for the claim to be withdrawn.  This instruction was communicated to the tribunal by the faxes set out above and to the respondents before 5.00pm on 7 March 2008.  Mr Warnock stated that he had also informed Miss Lamont close to 5.00pm on 7 March 2008.  

 5.	The respondent claimed a total of £3,739 which included a figure of £3,000 + VAT for legal costs and £214 for travel costs of the witnesses who had not been cancelled.  

 6.	Although Miss Lamont denied that her interaction with Mr Warnock “constituted discussions”, it was not denied that there had been contact between them.  This is not a case in which the claimant waited for an extended period of time before she made her decision to withdraw the case.  The decision was made within a matter of hours.  Mr Warnock characterised it as a sensible litigation decision based on the following factors:-

		(1)	There was no possibility of conciliation or compromise.

		(2)	The potential costs of running the case.

		(3)	Fear of having to give evidence at the tribunal.

	It was not accepted by Mr Warnock on behalf of his client that there was not an arguable case.  

 7.	By Rule 25 (1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 - 

	“A claimant may withdraw all or part of his claim at any time.  This may be done either orally at a hearing or in writing in accordance with paragraph 2 (2) (0)”.

In this case the claimant did comply with paragraph 2 of the same Rule.  In reaching the decision that this case was not misconceived, we have been influenced by the facts found in the decision on a Pre-Hearing Review in this case heard on 21 June 2007.  The claimant who initially thought that her redundancy had been fairly conducted, had found that certain assumptions she had made about an assistant retained for a certain child were wrong, and as such she considered at the point of discovery which was December 2006 that her redundancy had perhaps been unfair.  On the basis of the decision on a Pre-Hearing Review, the tribunal is not able to say that the claim in being brought at all was misconceived.  On the basis of the sequence of events on Friday 7 March 2008, the tribunal does not consider that there has been any unreasonable behaviour similar to that considered in the case of McPherson -v- BMP Paribas (London Branch) [2004] IRLR 558 in which the Court of Appeal said that before an Order for Costs can be made it must be shown in the individual’s case that the claimant’s conduct of the proceedings has been unreasonable.  If the conduct has been unreasonable then costs can only be awarded in respect of the period after the conduct became unreasonable.  There was a minimal period involved of at most half a day after it became clear that there was no reasonable possibility of compromising the claimant’s claim.  We do not consider that this is such as to render behaviour of the claimant unreasonable.  In McPherson’s case, the tribunal erred by considering an issue that the claimant had considered withdrawing his case five months before the date of hearing.  As a previous tribunal in this case has held in favour of the claimant on a Pre-Hearing Review we are unable to say that the claimant’s claim was misconceived or had no reasonable prospect of success.  Neither are we able to say that the claimant’s behaviour in conducting the proceedings was unreasonable.  It was not denied that the claimant had prosecuted her case conscientiously after the proceedings were initiated.  For all these reasons we find that the respondent’s claim for costs is not well founded and is hereby dismissed.

Chairman:

Date and place of hearing:	10 March 2008, Belfast.

Date decision recorded in register and issued to parties: