THE INDUSTRIAL TRIBUNALS

CASE REF:	773/08

CLAIMANT:			Maurice Lee-Kelly

RESPONDENT:		Lightstep Limited

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the parties have entered into a valid compromise agreement and the tribunal has no jurisdiction to entertain the claimant’s claim.  The claimant’s claim must therefore be struck out.  The tribunal also awards costs against the claimant for the respondent in the sum of £250.00.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Kinney

	
Appearances:
The claimant appeared and represented himself.

The respondent was represented by Miss Hannan, Solicitor of C Hannan Solicitors.

1.	This hearing was arranged to consider whether or not the tribunal had jurisdiction to entertain the claimant’s claim in light of the provisions of Article 245 of the Employment Rights (NI) Order 1996.  The Article contains provisions relating to compromise agreements and in particular at Article 245(3), the essential requirements to be contained in a compromise agreement.

2.	The claimant entered into a compromise agreement relating to his claim to this tribunal on 19 October 2010.  That document was an annex to a main agreement relating to the claimant’s High Court proceedings.  The compromise agreement contains all the relevant statutory information required under Article 245 of the 1996 Order.  It also makes provision at paragraph 1 that upon payment of the sum therein stated the claimant will withdraw his complaint to the tribunal as soon as practicable.  The claimant has acknowledged that full payment has been made.  However he has refused to withdraw his claim as he contends that there was a breach of the terms of the High Court settlement.  That breach relates to an ongoing PSNI investigation in which a Director of the respondent gave a statement to the police subsequent to entering into the settlement of the High Court action.  Miss Hannan on behalf of the respondent makes it clear that it is not accepted that there is a breach of the High Court settlement.  In any event there is a valid compromise agreement which is not dependant upon the terms of the main agreement nor is it conditional upon any of those terms.  The only condition placed on the withdrawal of the claim by the claimant is that payment of the agreed sum was made and the claimant has acknowledged that that sum has been paid.

3.	I have considered the terms of the compromise agreement.  I have also been shown the terms of the settlement in the High Court.  I am satisfied that the compromise agreement entered into by the parties is a valid compromise agreement under the terms of Article 245 of the 1996 Order.  I am further satisfied that the compromise agreement is not made conditional upon any matter other than the payment of the agreed sum.  The claimant has confirmed he has received that sum.  I note that he did not return that sum to the respondents.  I concluded that the tribunal has no power or jurisdiction to entertain the claimant’s claims and I strike out his claim.

4.	Miss Hannan also made an application for costs based on the unreasonable conduct of the claimant.  She submitted that since the claimant had been paid the money agreed under the compromise agreement the respondent had been forced to come back to the tribunal on a number of occasions.  The claimant had failed to make any appearance either by himself or through his legal representatives.  Miss Hannan submitted that the matter should have been withdrawn in February on completion of paying the agreed amount.  Any subsequent conduct of the claimant is vexatious.  He simply was refusing to adhere to the terms of the compromise agreement.  Miss Hannan contended that it was unreasonable conduct which required the attendance of the respondents at an earlier Case Management Discussion on 12 May 2011 and at this Pre-Hearing Review.  Miss Hannan confined her application for costs to the time incurred in dealing with the two hearings and sought the sum of £250.00.  Mr Lee-Kelly in response said that he was not being vexatious.  He was currently under medication which caused him considerable difficulties.  He stated that he misunderstood that the compromise agreement was a separate document.  He said that if he had realised that the comprise agreement was separate from the main High Court agreement he would be challenging the other agreement in the High Court.  He identified his personal circumstances.  He was unable to work and was not in receipt of benefits.  He and his partner had a combined income of £225.00 per week.  A large part of his agreed settlement figure had been dispersed in legal fees.

5.	A chairman can consider making a cost order against a paying party where that party has in bringing or conducting proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably.  These powers are contained in Rule 40 of the Industrial Tribunals Rules of Procedure 2005.  In considering an application for costs I must first be satisfied as to the grounds for making such an Order and then whether it is appropriate to exercise my discretion to award costs.  When making a costs order on the grounds of unreasonable conduct any costs awarded need not be causally linked to the costs incurred as a result of the conduct that has been identified as unreasonable.  The question of whether or not a party behaved unreasonably is dependant on the facts of an individual case.  There is no hard and fast principle applicable to every situation.  Reasonableness is to be given its ordinary meaning.  I consider in this case that the claimant’s conduct has been unreasonable.  He entered into a compromise agreement with the benefit of legal advice.  He subsequently obtained the agreed settlement figure on foot of that compromise agreement.  The claimant confirmed to the tribunal by an email of 1 February 2011 that on receipt of the final cheque clearing he would withdraw his claim.  The claimant did not withdraw his claim and sent a further email on 31 March 2011 to advise that further legal issues had arisen on which he required legal advice.  By an email of 18 April 2011 Mr Lee-Kelly said that he was not withdrawing his action and that he was appointing a new solicitor.  At the hearing of the Pre-Hearing Review Mr Lee-Kelly referred to advice received from his solicitor and from counsel.  He did not attend an earlier Case Management Discussion although I accept that the reasons for that non-attendance were on medical grounds.  However the Record of Proceedings made the respondent’s case clear and the claimant was told that I was considering making an Order that his claims be struck out.  The claimant then wrote to the tribunal saying that he wished to pursue his claims and has appeared today.  I consider his conduct to be unreasonable.  I further consider that in the circumstances I have set out it is appropriate that an Order for Costs be made.  The respondent’s have been put to considerable expense in attending hearings at the tribunal and also in dealing with ongoing correspondence.  Miss Hannan has confined her application to the costs of the two hearings in the matter and has quantified those in the figure of £250.00 which I consider to be a reasonable figure.  I have taken into account the claimant’s means as set out to me at this hearing.  On the basis of the information before me I consider it appropriate that I make an order for costs.  I order that the claimant pays the respondent costs in the sum of £250.00.

Chairman:

Date and place of hearing:  8 July 2011, Belfast.		

Date decision recorded in register and issued to parties: