THE INDUSTRIAL TRIBUNALS

CASE REF:  00919/08

CLAIMANT:			Lilian Cairns

RESPONDENT:		The Welcome Organisation

DECISION ON COSTS
The decision of the tribunal is that the Claimant is ordered to pay the Respondent the sum of £700 by way of costs.

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr S A Crothers

Appearances:
The claimant was present and was represented by Mr E McCann.
The respondent was represented by Mr McGranaghan, Solicitor of O’Reilly Stewart, Solicitors.

THE CLAIM

 1.	The claimant’s claim was struck out on 13 November 2008 for failure to comply with Orders of the tribunal dated 24 October 2008 and was therefore dismissed.  The respondent’s solicitors, by correspondence of 19 November 2008 requested a hearing in order to consider an application for costs against the claimant on the basis that the claimant in bringing and conducting her claim had acted vexatiously, abusively, disruptively or otherwise unreasonably.  A hearing was subsequently convened for 17 December 2008 at which the claimant gave evidence and was cross examined.  Part of the claimant’s evidence was that she was medically unfit to attend the Case Management Discussion on 24 October 2008.  She stated that she had presented a letter from her GP to the Tribunal Office on 23 October 2008 and had obtained a receipt.  The tribunal had no record of having received any such correspondence and gave the claimant time to furnish the receipt.  The claimant subsequently furnished medical evidence to the tribunal and an exchange of correspondence ensued involving both representatives.  In light of the nature of the correspondence, it was necessary to reconvene the hearing to hear further evidence from the claimant and to further consider the respondent’s application for costs.

THE ISSUES

 2.	The issue for the tribunal was whether an Order for Costs should be made against the claimant and, if so, in what amount.

SOURCES OF EVIDENCE

 3.	The claimant gave evidence on both 17 December 2008 and 13 February 2009.  The tribunal took into account documentation referred to in the course of the hearing.

THE FACTS

 4.	(1)	The claimant presented a claim of unfair dismissal on 27 June 2008.  A response was presented to the tribunal office on 19 August 2008.  The respondent’s solicitors furnished Notices for Discovery and Additional Information to the claimant on 8 September 2008.  Both parties were notified of a Case Management Discussion arranged for 1 October 2008 to consider the respondent’s representatives request for an alternative hearing date.  The case had been fixed for hearing for 28 November 2008.  

	(2)	The claimant did not appear at the Case Management Discussion nor was she represented.  The hearing was re-listed from 8 – 19 December 2008 at the Case Management Discussion.  At the same Case Management Discussion the respondent’s representative raised the issue of the claimant’s failure to reply to the Notices served on 8 September 2008 and requested Orders from the tribunal.  A Case Management Discussion was arranged for 24 October 2008 and both parties were notified on 14 October 2008.  The claimant then wrote to the respondent’s solicitors on 17 October 2008 stating as follows:-

	“I contacted Mr Adrian Thompson at OITFET regarding the forthcoming case management discussion to be held on 24/10/08.  My Representative is currently addressing the points in your request for Additional Information and Discovery and you will obtain this either before the 24/10/08 or at the case management discussion”.

	(3)	The claimant did not appear and was not represented at the Case Management Discussion held on 24 October 2008.  The Chairman issued Orders for Discovery and Additional Information against the claimant which were to be complied with by 7 November 2008 and further ordered:-

		“That in accordance with Rule 13(2) of the Industrial Tribunals Rules and Procedure 2005 that unless the Orders for Discovery and for Additional Information are complied with by the claimant, the claim shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give Notice under Rule 19 or hold a Pre-Hearing Review or a hearing under Rule 26”.  

	The respondent’s representatives wrote to the tribunal office on 11 November 2008 stating that the Orders had not be complied with and requesting the tribunal to confirm that the claimant’s claim had been struck out.  That correspondence, which was copied to the claimant on 13 November 2008, also states as follows:-

		“We understand from discussions with the Labour Relations Agency that it is the claimant’s intention not to proceed with her claim.

	In light of the claimant’s obstructive behaviour and approach in relation to this matter and her failure to attend two Case Management Discussions on 1 October 2008 and 24 October 2008 we would be obliged if the tribunal would let us have an Order for full costs against the Claimant in respect of these proceedings”.  

A Costs Hearing was subsequently requested on 19 November 2008 by the respondent’s solicitors and both parties were notified that the hearing would take place on 17 December 2008 at 2.00pm.

	(4)	The tribunal carefully considered the claimant’s evidence given on both 17 December 2008 and 13 February 2009 together with all relevant correspondence and medical evidence referred to and made the following additional findings of fact on the balance of probabilities:-

(i)	The tribunal, whilst acknowledging that the claimant did have certain health problems does not accept that she was being truthful when she asserted that a letter from her General Practitioner, Dr McHugh, have been delivered to the tribunal office on 23 October 2008 and that she had obtained a receipt for same.  In her evidence on 13 February 2009, she stated that she was not “100 per cent sure” as to whether the General Practitioner’s letter had been delivered to the tribunal office and she then confirmed that she had not in fact done so.  In correspondence to the tribunal office on 18 December 2008 the claimant attached a report from Dr Claire Giles dated 18 December 2008 which stated:-

		“This lady has been suffering from severe anxiety and distress.

		As a result of this medical condition she is not was unable to attend a case conference on the 24th October 2008”.

			In her covering correspondence the claimant states as follows:-

	“I have given permission to Springfield Medical Centre to allow you access to my medical records if you so wish.  The attached letter is confirmation of my state of health and I am unable but presently trying to recover the receipt received on 23/10/08.  There seems to be confusion as to whether the Doctor’s letter was delivered to OITFET or Labour Relations and I have spoken to the supervisor at Labour Relations regarding this.  If I can reacquire the receipt I will forward it immediately”.

(ii)	The claimant acknowledged that she attended a hearing at the tribunal office on 28 and 29 January 2009 in support of a colleague and that she took notes during that hearing for what she termed personal use.  She reiterated in the course of her evidence that she had been confused, that she had been given Diazepam and that the dosage had been recently increased by her General Practitioner.  She kept reiterating that “my head is all over the place”.  However, the claimant acknowledged that she had lodged a separate claim with the tribunal office on 10 December 2008 and had been able to provide instructions to Mr McCann who lodged the application on her behalf.  She also claimed that she was not aware that she had to attend the Case Management Discussions listed for 1 October and 24 October 2008, but when she was reminded of her correspondence to the respondent’s solicitors of 13 October 2008 (referred to above), she altered her evidence to state that she was not aware of her need to attend the first case conference on 1 October 2008.  She also apologised to the tribunal for being wrong in her evidence concerning the episode on 23 October 2008 in her evidence given on 17 December 2008.

(iii)	The tribunal also heard evidence regarding the claimant’s income.  She has no dependents.  The parties were given an opportunity of agreeing the claimant’s weekly income by not later than 20 February 2008.  This figure has been agreed at £269.92 per week.  Furthermore, Mr McGranaghan undertook to lodge details of the schedule of costs pertaining to his application and copy same to Mr McCann by not later than 20 February 2008.  A copy of the schedule is attached to this decision.

(iv)	The tribunal having carefully considered the evidence also finds that the claimant did attempt to mislead the tribunal in relation to what allegedly occurred on 23 October 2008 and in relation to her attendance at the Case Management Discussions.

THE LAW

 5.	(1)	Rule 40 of the Industrial Tribunals Rules and Procedure 2005 provides that a tribunal may award costs in favour of a legally represented party.  The relevant provisions are:-

	(2)	“A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply.  Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.  

	(3)	The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived”.  

		The tribunal also considered Rule 41 and the paying parties ability to pay under Rule 41(2).

	A tribunal’s power to award costs under Rule 40 is discretionary.  Moreover, it is a two stage test.  The tribunal must ask itself whether a party’s conduct falls within Rule 40(3).  If so, it must then ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party and the amount to be awarded.  In order to be vexatious, there must be evidence of some spite or desire to harass the other side or the existence of some other improper motive.  As Harvey on Industrial Relations and Employment Law (“Harvey”) states at T1053:-  

		“The grounds of abusive and disruptive conduct speak for themselves”

	In relation to unreasonable conduct, Harvey at paragraph 1043 states as follows:-

	“Tribunals have a wide discretion to award costs where they consider that there has been unreasonable conduct in the bringing or conducting of proceedings.  Every aspect of the proceedings is covered, from the inception of the claim or defence, through the interim stages of the proceedings, to the conduct of the parties at the substantive hearing.  Unreasonable conduct includes conduct that is vexatious, abusive or disruptive.  When making a costs order on the ground of unreasonable conduct, the discretion of the tribunal is not fettered by any requirement to link the award causally to the costs incurred as a result of the conduct that has been identified as unreasonable (McPherson  v  BNP Paribas (London Branch) [2004] EWCA Civ 569, [2004] ICR 1398; Salinas  v  Bear Stearns International Holdings Inc [2005] ICR 1117, EAT).  In McPherson, Mummery LJ stated (at para 40): ‘The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring [the receiving party] to prove that specific unreasonable conduct by [the paying party] caused particular costs to be incurred.’

SUBMISSIONS

 6.	The tribunal heard submissions from Mr McCann and Mr McGranaghan.  Mr McCann, largely on the basis of the medical evidence and the claimant’s state of mind, submitted that there was no basis for an award of costs.  Mr McGranaghan, on the other hand, urged the tribunal to award costs from the inception of proceedings.  

CONCLUSIONS

 7.	Having considered the evidence, the facts as found, together with the relevant rules and authorities, the tribunal is satisfied that the claimant has in conducting the proceedings acted unreasonably and, taking into account the claimant’s ability to pay, awards the respondent an amount in costs of £700.  In doing so the tribunal has also borne in mind that awarding costs is not a punitive matter.

Chairman:

Date and place of hearing:	17 December 2008 and 13 February 2009, Belfast.

Date decision recorded in register and issued to parties: