THE INDUSTRIAL TRIBUNALS
  
CASE REF:    1594/11  

CLAIMANT:	Adrian Hines

RESPONDENT:	Brinks Ireland Ltd

DECISION

The decision of the tribunal is that the claimant is not entitled to an award of costs in respect of the Case Management Discussion (“CMD”) convened on 9 August 2013 to consider the claimant’s  resisted request for discovery of legal advice.

Constitution of Tribunal

Chairman: 	Mrs A WilsonMembers:	Mr J Hughes
	Mrs Patricia Weir

Appearances: The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Francis Hanna and Company, Solicitors.The respondent was represented by Ms E Dellow-Perry, Barrister-at-Law, instructed by Arthur Cox and Company.

BACKGROUND

1.	In a decision issued on 30 November 2012 (“the decision”) an Industrial Tribunal in the course of finding that the claimant was unfairly dismissed made a finding that the claimant was dismissed in reliance on mistaken legal advice to the effect that TUPE applied to the circumstances of his dismissal.

2.	The decision was the subject of an appeal and the Court of Appeal remitted the case back to the tribunal for consideration relative to a number of discrete issues.

3.	In preparation for the remitted hearing the claimant requested discovery of the legal advice relied upon by the respondent.  This was the first specific request for discovery of the legal advice.  The tribunal is not aware of a specific request having been made for the purposes of the initial hearing.

4.	The request for discovery of the legal advice was refused on the grounds that legal professional privilege applied and a CMD was arranged to consider whether discovery should be directed.  The matter was disposed of on 9 August 2013.

5.	At the direction of the tribunal the disputed legal advice was furnished to the Chairman for consideration.  Three bundles of documents were produced and by decision dated 12 August 2013 discovery was ordered relative to two bundles.  Restricted discovery was ordered relative to the third.

6.	The claimant now applies for an award representing legal costs incurred by him relative to the CMD.

7.	In considering the application the tribunal relied upon the written submissions of the parties and the applicable law.  In particular the tribunal considered Schedule 1 to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Rules”) and Harvey on Industrial Relations and Employment Law Division PI, paragraphs 1026 to 1071 (“Harvey”).

8.	It is the claimant’s case that he is entitled to an award of costs against the respondent in accordance with paragraphs 40 and 41 of Schedule 1 to the Rules.  It is his case that in refusing discovery and in conducting proceedings relative to the discovery issue the respondent acted vexatiously, abusively, disruptively or otherwise unreasonably and further that refusal of discovery was misconceived.

9.	Vexatious conduct has been categorised in ET Marler Ltd  v  Robertson [1974] ICR 72 at 76, NIRC and in A-G  v  Barker [2000] 1 FLR 759.

10.	The tribunal is satisfied that the respondent refused discovery of legal advice in reliance on legal argument relative to privilege and the tribunal is satisfied that there was respectable legal argument advanced at the CMD underpinning that case.  Not all documentation sought under discovery was considered by the tribunal to be discoverable and discovery was refused relative to certain documents.  In these circumstances the tribunal do not regard the respondent’s conduct in either bringing or in conducting proceedings as vexatious and makes no award on this ground.

11.	The tribunal make no award of costs based on disruptive or abusive behaviour.  The tribunal has considered the respondent’s behaviour relative to the CMD and find no evidence of disruptive behaviour or of abusive behaviour such as to justify an award of costs.

12.	The tribunal proceeded to consider whether the respondent behaved unreasonably in refusing discovery or whether such refusal was misconceived.

13.	The tribunal considered whether the respondent knew or should reasonably have known that resistance to discovery had no reasonable prospect of success.

14.	In considering this issue the tribunal gave due weight to the fact that the law relative to discovery and legal professional privilege is not straightforward.  This is particularly so in the circumstances of this particular case where in the first instance the legal advice in question did not come from a legally qualified source, secondly a question arose as to whether advice was sought in contemplation of litigation and finally an issue arose as to whether privilege (if any) had been waived by reason of the respondent’s response to the claimant’s claim for unfair dismissal.

15.	The tribunal is satisfied that the respondent did not know nor could it reasonably have been expected to know the outcome of the CMD.  Furthermore not all documentation relied upon by the respondent was found to be discoverable. In these circumstances the tribunal do not find the respondent to have been misconceived in resisting the discovery application or to have otherwise acted unreasonably.

16.	The tribunal have no evidence to suggest that the respondent was served with a costs warning letter relative to the CMD.

17.	In all the circumstances of the case including the recited factors and taking into account Harvey division PI Para 1026 “the fundamental principle remains, however, that costs are the exception rather than the rule, and that costs do not follow the event in employment tribunals” the tribunal makes no award of costs in the particular circumstances of the CMD.

Chairman:

Date and place of hearing:       22 and 23 August 2013, Belfast.

Date decision recorded in register and issued to parties: