THE INDUSTRIAL TRIBUNALS

CASE REF:    5786/09

CLAIMANT:	Margaret Reeves

RESPONDENTS:	1.	H R Connect
	2.	Department of Finance and Personnel

DECISION

DECISION ON COSTS

The majority Decision of the tribunal is that the claimant is ordered to pay the respondents the sum of £500.00 plus VAT by way of costs.

Constitution of Tribunal:

Chairman:	Mr Uel Crothers

Members:	Mr Aubrey Crawford
	Mrs Theresa Hughes

Appearances:

The claimant was present and represented herself, her Solicitors having come off record on 26 November 2010.

The respondent was represented by Mr Wolfe, Barrister-at-Law, instructed by the Departmental Solicitors Office.

THE APPLICATION

1.	The tribunal commenced the hearing of the case on the afternoon of 2 June 2010.  Towards the end of cross-examination of the claimant, the claimant disclosed to the tribunal that an offer of settlement had been made by the respondents.  After considering submissions from both parties Counsel, the tribunal recused itself.  The respondents made an application for costs in the total sum of £3,783.00.

THE ISSUE

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 tribunal heard evidence from the claimant and was presented with agreed documentation.

THE FACTS

4.	(i)	On the morning of 1 June 2010, the claimant consulted with her legal representatives.  During that consultation, she was advised not to discuss matters raised in the consultation, including a settlement offer.  The tribunal is satisfied that the claimant, who in previous proceedings had given instructions in relation to a compromise agreement, understood the position.

	(ii)	The tribunal accepts that the claimant had medical problems, and that on the morning of 3 June 2010 she took a newly prescribed drug together with other forms of medication in advance of the tribunal hearing on that day.  It was also apparent to the tribunal that the claimant was physically sick at times during the hearing.  However the tribunal was satisfied that these matters, together with alleged stress symptoms, do not explain why the claimant disclosed an offer of settlement towards the end of her cross-examination.

	(iii)	The claimant also gave evidence that she was receiving incapacity benefit of £213.00 per fortnight, £44.00 of income support per fortnight, and £350.00 per month in respect of disability allowance.  Furthermore she was in receipt of housing benefit, and had no savings.  In light of this evidence the tribunal was satisfied that, in the event of making a cost order, it should have regard to the claimant’s ability to pay in establishing the amount of the costs order.

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 or awarding costs against that party and the amount to be awarded.

		In relation to unreasonable conduct, Harvey on Industrial Relations and Employment Law (“Harvey”) at T 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.”

	The tribunal also considered Harvey at T 1036 in relation to having regard to the claimant’s ability to pay costs.

6.	The tribunal considered submissions from the claimant and the respondents’ Counsel.

CONCLUSIONS

7.	(i)	Having considered the evidence, the facts as found, together with the relevant rules and authorities, the tribunal, by a majority, is satisfied that the claimant has in conducting the proceedings acted unreasonably and, taking into account the claimant’s ability to pay, awards the respondents an amount in costs of £500.00.  In doing so the tribunal has also borne in mind that awarding costs is not a punitive matter.

	(ii)	One member of the tribunal concluded, having taken into account the claimant’s stress, together with her medical condition, and the fact that the disclosure was made towards the end of her cross-examination and was not deliberate in that the claimant did not appreciate the implications of making such a disclosure, that the conduct was not unreasonable.

Chairman:

Date and place of hearing:	29 November 2010, Belfast.

Date decision recorded in register and issued to parties: