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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hall v Balcas Timber Ltd [2008] NIIT 98_08IT (26 September 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/98_08IT.html Cite as: [2008] NIIT 98_8IT, [2008] NIIT 98_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00098/08

CLAIMANT: David Hall

RESPONDENT: Balcas Timber Limited

DECISION

The claimant is hereby ordered to pay to the respondent the sum of £50 towards the costs of the case management discussion held on 9 May 2008.

Constitution of Tribunal:

Chairman (sitting alone): Mrs M Davey

Appearances:

The claimant was represented by Mr R Fee, Barrister-at-Law, instructed by Murnaghan & Fee Solicitor.

The respondent was represented by Mr R Shiels, Barrister-at-Law, instructed by Cooper Wilkinson, Solicitor

1. A notice of hearing was issued in this case to both parties on 15 February 2008 for a hearing to take place on 14 May 2008.
2. The respondent issued notices for discovery and additional information to the claimant on 28 February 2008.
3. The respondent's representative wrote to the claimant's representative on 27 March 2008 in respect of a failure to comply with the notices and indicating that the respondent would seek costs if the notices were not replied to.
4. A further letter was sent to the claimant's representatives on 16 April 2008 indicating that the respondent did not agree that the tribunal's proceedings should be held in abeyance pending the outcome of a High Court action in respect of the claimant's alleged personal injury and continuing to seek replies to the notices for discovery and additional information.
5. On 30 April the respondent's representative wrote to the tribunal seeking Orders in respect of the Notices and a case management discussion in relation to the request for Orders was arranged for 9 May 2008.
6. On 8 May 2008 the claimant's solicitors requested an adjournment of the hearing listed for 14 May 2008. This matter was therefore also dealt with at the Case Management Discussion already listed for 9 May 2008.
7. On 9 May 2008 the Case Management Discussion took place and Orders for Discovery and Additional Information were made with some amendments to the notices as initially presented.
8. Mr Sheils indicated that he was applying under Rules 40(1) and (2) of the Industrial Tribunals Rules of Procedure 2005 for costs in respect of the case management discussion held on 9 May 2008 which dealt with the respondent's request for Orders for Discovery and Additional Information. He also indicated that he was seeking further costs by reason of the claimant's application for the hearing listed for 14 May 2008 to be adjourned.
9. At the hearing on 9 May 2008 Mr Sheils had maintained that his understanding was that there were no ongoing negotiations in respect of the claimant's personal injury claim. Also at that hearing Mr Fee had indicated that he understood that there were negotiations continuing in this matter. As neither solicitor was present I adjourned the hearing so that further information could be obtained.
10. Further correspondence has been provided to me today from both parties. Mr Black who had carriage of the case for the respondent was present and available to give evidence if required. The solicitor who had carriage of the case on behalf of the claimant is no longer with the claimant's solicitors. However it is reasonably clear from the documents provided that the respondent's attitude was that there would be no negotiation in respect of the personal injury claim and that the claimant's representative had not taken any active steps to progress the matter further with the respondent's insurers apart from providing two medical certificates in March 2008.
11. Mr Sheils maintained that in these circumstances the claimant's failure to answer the notices was unreasonable and that the claimant should therefore pay the costs in relation to the case management discussion on 9 May 2008 which he measured at £600 for his fees.
12. Mr Sheils also requested fees of £900 in respect of the hearing date of 14 May 2008 which was vacated. This was made up of £600 for counsel and £300 for his instructing solicitor's preparation. He maintained that by leaving the request for an adjournment to the last minute the claimant had acted unreasonably.
13. Mr Fee maintained that negotiations were still ongoing in respect of the personal injury claim as was evidenced by his solicitor sending two medical reports to the respondent's insurers in March 2008. A bundle of documents was provided to me which Mr Fee suggested showed that there was general negotiation going on and no clear indication from the insurers that they were denying liability. He suggested that the respondent's solicitors were well aware of the claimant's views that the industrial tribunal hearing should not go ahead until the High Court action or negotiations were complete.
14. With regard to the Orders sought by the respondent Mr Fee pointed out that some amendments were made by me as Chairman to the matters sought and he therefore suggested that the hearing on 9 May was necessary because of the fact that the amendments were made.
15. With regard to the request for a postponement he did accept that it was not best practice to leave requests for an adjournment to such a late date.
16. Mr Fee also queried the amounts sought by way of costs. He pointed out that the solicitor's preparation would not be wasted as it would be required for the actual hearing of the Tribunal. He also suggested that the fees sought by counsel were unreasonable.
17. On being asked by me about the claimant's ability to pay it transpired that the claimant was receiving £118 per fortnight incapacity benefit.
18. Mr Sheils queried as to whether the claimant was in receipt of Industrial Injury payments.
19. In summing up Mr Sheils referred to the bundle and correspondence before me. He indicated that he accepted that people were entitled to make requests for adjournment but he suggested that the conduct of the claimant had been unreasonable in applying for the adjournment so late and in failing to reply to the notices sent. He suggested that both these matters were within the claimant's knowledge in February, March and April.
20. Having considered the respondent's request for costs I accept that the claimant's behaviour was unreasonable in failing to comply with the

respondent's request for notices and secondly in the lateness of the application for the adjournment. However, I am conscious that the Case Management Discussion took just over an hour on 9 May 2008 and so I find a fee of £300 sought by Counsel in respect of the hearing is too high. I consider a fee of £100 would be more appropriate in relation to that hearing. However, having taken into account the claimant's means I hereby order him to pay £50 towards the costs in respect of the hearing on 9 May 2008.

21. With regard to Counsel's claim for £600 for himself and £300 for his solicitor for the postponed hearing on 14 May 2008, I am not prepared to award any costs in respect of this as any work done in preparation for that case will be of use when the next hearing comes on.

Chairman:

Date and place of hearing: 12 September 2008, Belfast.

Date decision recorded in register and issued to parties: