THE INDUSTRIAL TRIBUNALS

CASE REF:	1981/10

APPELLANT:		James Francis Little

RESPONDENT:		Craigavon Borough Council

DECISION
The unanimous decision of the tribunal is that the respondent’s application for costs is dismissed.

Constitution of Tribunal:
Chairman:		Mr P Kinney
Member:		Ms N Wright

Appearances:
The appellant was represented by Mr Fee, Barrister-at-Law, instructed by John Hoy, Son & Murphys, Solicitors.
The respondent was represented by Mr McDonald, Solicitor, of Walker McDonald, Solicitors.

Issue

1.	The issue for the tribunal to determine was:-

“Whether the tribunal should make an Order that the appellant make a payment in respect of the costs incurred by the respondent.”

2.	The tribunal heard submissions from Mr McDonald, on behalf of the respondent, and Mr Fee, on behalf of the appellant.

3.	The respondent served a Prohibition Notice under the Health & Safety at Work (Northern Ireland) Order 1978 on the appellant on 30 June 2010.  The Prohibition Notice prohibited the use of the appellant’s electrical installation until contraventions set out in the schedule attached to the Notice had been remedied.

4.	The appellant’s solicitor wrote to the respondent on 9 July 2010 disputing the Prohibition Notice, indicating an intention to appeal and asking for sight of the electrician’s report detailing the alleged faults.  This report was sent by the respondent on 19 July 2010.  

5.	Although any Notice of Appeal should be sent to the tribunals within 21 days from the date of service on the appellant of the Prohibition Notice, the appeal was not in fact lodged until 20 August 2010.  

6.	The Office of the Tribunals listed the appeal hearing for 14 September 2010 and Notice of that hearing was sent to the parties on 23 August 2010.

7.	Mr McDonald, on behalf of the respondent, made preparations for the hearing on 14 September 2010.  The appellant meanwhile had consulted with his barrister on 7 September 2010 and on foot of advices received sought to withdraw his appeal by letter dated 8 September 2010 addressed to the respondent.  The appellant’s solicitors indicated they had an authority to withdraw the appeal on the basis there was no issue in relation to costs.  In that letter the appellant’s solicitors continued to query the precise nature of the Regulations the appellant was in breach of.  By letter dated 10 September 2010 the appellant’s solicitors indicated that they had instructions to withdraw the appeal but that the respondent’s solicitors had indicated they would seek an Order for Costs.  On 13 September 2010 the respondent’s solicitors confirmed to the Office of the Tribunals that they sought to make an application in regard to costs.

8.	Mr McDonald submitted that the Council were entitled to their costs.  The respondent felt it was unfair that the taxpayer would have to fund the case when it was possible to make an application for costs.  The appellant was aware, on 30 June 2010, after service of the Prohibition Notice that he had a right to appeal.  That right was exercised out of time and it was only at the last minute that the case was withdrawn.  The appellant had ample opportunity to investigate matters and reach a decision and should have reached a decision not to proceed with the appeal at a much earlier stage.

9.	Mr Fee, on behalf of the appellant, accepted the general history.  The appellant, however, did not accept that his case was hopeless.  However, on the basis of advices received he did decide to withdraw his case and took immediate steps to do so.  He contended that the appellant had and continued to have legitimate concerns regarding the proofs established and the conclusions reached by the respondent.  He had a statutory right to an appeal.  Mr Fee also submitted that even if the appellant had been unsuccessful the respondent was not automatically entitled to costs.  The matter of costs was discretionary.  He contended the appropriate standard to apply was of the reasonableness of the conduct of the appellant.  Tribunal litigation is fundamentally different to that conducted in the courts, in that costs do not follow the event.  This difference was a conscious decision made by Parliament and it was also a conscious decision to place this appellate jurisdiction in the tribunal.  In those circumstances, the tribunal should be slow to award costs.  

10.	In relation to the jurisdiction point, Mr McDonald said that the normal rules as to costs applied by the tribunal do not apply to this type of case.  The appellant was unreasonable in not withdrawing the case earlier.  

The law

11.	The provisions relating to costs on appeals against Prohibition Notices are found in Schedule 5 to the Industrial Tribunals Rules of Procedure 2005.  Rule 9 provides that a tribunal may make a Costs Order, ie that a party make a payment in respect of the costs incurred by another party.  The tribunal may have regard to the paying party’s ability to pay when considering whether it should make a Costs Order or how much that Order should be.  Rule 10 of Schedule 5 specifically disapplies the provisions in Schedule 1 which normally apply to the making of Costs Order.  The tribunal therefore has a discretion as to whether or not costs should be awarded.

Tribunal’s conclusions

12.	In considering our discretion to award costs, the tribunal took into account the conduct of the parties, the importance of the matter to the parties, and the particular complexity of the matter.  The tribunal considered whether the proceedings were conducted in a manner which allowed the parties to know where they stood at the earliest stage to allow decisions to be made about the prospects of success and about the sensible conduct of the case.

13.	In this case the tribunal unanimously concludes that costs should not be awarded to the respondent.  The appellant in this case took immediate steps to seek legal advice and made continuing efforts to obtain more information to fully understand the nature of the Notice.  Taking the appellant’s case at its height, the Notice itself was disputed and remains disputed.  The matter is clearly of importance to the parties and one which can raise complex issues.  The claimant sought legal advice and obtained the advices of counsel on 7 September 2010.  Immediately upon receipt of those advices he sought to withdraw his appeal.  As was noted by the Court of Appeal in McPherson  v  BNP Paribas [2004] EWCA Civ 569 (in the context albeit of employment tribunal claimants) Lord Justice Mummery said:-

“It would be unfortunate if claimants were deterred from dropping claims by the prospect of an Order for Costs on withdrawal, which might well not be made against them if they fought on to a full hearing and failed.  …  Withdrawal could lead to a saving of costs.  Also, as Thorpe LJ observed during argument, notice of withdrawal might in some cases be the dawn of sanity and the tribunal should not adopt a practice on costs, which would deter applicants from making sensible litigation decisions.”

14.	In those circumstances, the tribunal declines to make an Order for Costs in this case.

Chairman:

Date and place of hearing:	14 September 2010, Belfast

Date decision recorded in register and issued to parties: