THE INDUSTRIAL TRIBUNALS

CASE REF:	  1759/13

CLAIMANT:		Noel McParland	

RESPONDENT:	Northern Ireland Ambulance Service

DECISION ON COSTS

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

Constitution of Tribunal:

Employment Judge:	Employment Judge McCaffrey

Members:	Mr P Sidebottom
	Mr R Hanna

Appearances:

The claimant was represented by Mr M Corkey, Barrister-at-Law, instructed by 
P J McGrory Solicitors.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by the Directorate of Legal Services.

1.	By decision of this tribunal issued on 11 June 2014 the claimant’s claim of indirect sex discrimination was rejected.  At the outset of that hearing there were three claims being pursued by the clamant, namely direct and indirect age discrimination and indirect sex discrimination.  On the final morning of the hearing Mr Corkey confirmed that the claimant was pursuing only a claim of indirect discrimination on grounds of age.

2.	The other matter which the tribunal had to consider was whether the tribunal had jurisdiction to deal with the claim, given that the claimant had retired from employment with the respondent on 3 December 2012 and lodged his claim in the Office of the Industrial Tribunals on 2 October 2013, well outside the three month time-limit for bringing a claim.  It was the ultimate finding of the tribunal that the policy pursued by the respondent of requiring all leavers from Northern Ireland Ambulance Service to reapply through a recruitment process for jobs was not indirectly discriminatory on grounds of age.  We also found that the claimant’s claim had been lodged out of time and that in all the circumstances of the case it would not have been just and equitable to extend the time-limit.

3.	Mr Ferrity relied on two grounds for the costs application.  First of all he suggested that the claimant had acted unreasonably in bringing and pursuing the claims and secondly, that the claims were misconceived.  

4.	The respondent claimed the sum of £7,717.60 to include solicitors and counsels fee.  While their initial application had referred to VAT on these amounts, it was subsequently clarified that any orders sought should be net of any VAT payable.

The Relevant Law

5.	The tribunal’s power to award legal costs is set out in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Rules”).  The general power to make costs is set out in Schedule 1 at Rule 38 and following.  We were specifically referred to the provisions of Rule 40, the relevant parts of which state as follows:-

“(2)  A tribunal or chairman shall consider making a costs order against 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) above 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.”

6.	“Misconceived” is defined at Regulation 2 as including “no reasonable prospect of success.”  

7.	The tribunal’s jurisdiction in relation to costs is outlined in Harvey on Industrial Relations and Employment Law Division P1 “Practice and Procedure” at paragraph 1044 and following.  Harvey emphasises that despite changes which extended the power to make costs considerably, the fundamental principle remains that costs are the exception rather than the rule and that costs to not follow the event in employment tribunals (McPherson v BMP Paribas (London Branch) [2004] EWCA Civ 569 at paragraph 2; and Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 at paragraph 7).

Misconceived claims

8.	It is clear from considering the case law that the test to be applied in deciding whether or not to make an award of costs is more than a simple objective assessment of whether the claimant knew or ought to have known that his case lacked substance or merit.  The tribunal must look not just at the proceedings themselves but at the claimant’s conduct in bringing or conducting the proceedings.  The type of conduct which would be considered unreasonable by a tribunal will obviously depend on the facts of the individual case and there is no hard and fast principle applicable to every situation (Harvey para 1083).  In Cartiers Superfoods Ltd v Laws [1978] IRLR 315 Philips J considered that it was necessary “to look and see what that party knew or ought to have known if he had gone about the matter sensibly”.  In that particular case, the EAT held that if the employers had taken the trouble to enquire into the facts surrounding the alleged misconduct for which the employee had been dismissed, instead of reacting in a hostile manner with threats of all statements that the employee was guilty of dishonesty, they would have realised that they had no possible defence at all to the claim except as to the amount of compensation.  Harvey however warns that this approach needs to be treated with caution.  As Sir Hugh Griffiths stated in ET Marler v Robertson [1974] ICR 72, NIRC:

“Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms.”

9.	However in an appropriate case it may well be reasonable to have regard to what a party knew or ought to have known if he had indeed “gone about the matter sensibly”.  In Keskar v Governors of all Saints Church of England School, Knox J said,

“The question of whether a person against whom an order for costs is proposed to be made ought to have known that the claims he was making had no substance, is plainly something which is, at the lowest capable of being relevant.”  

	If there is nothing in the evidence to support the allegations being made, this involves an assessment of the reasonableness of bringing the proceedings and “necessarily involved” a consideration of the question of whether the claimant ought to have known that there was no such supporting material.

10.	It was noted by the claimant’s representative in this case that a costs warning letter had been sent to the claimant but that no application had been made for a deposit order against the claimant, on the grounds of his case had little reasonable prospect of success.  The costs warning letter was indeed sent by the respondent’s solicitors to the claimant in this case in March 2014.  That letter contended that the claimant’s claim was out of time and that it was not just and equitable to extend the time.  The letter also indicated that the respondent believed that the claimant had had substantial difficulties in pursuing his claim for discrimination, because he had not indicated any facts from which an inference of discrimination could be drawn, other than referring to a comparator who was younger than him and of a different gender.  The letter also set out the likely costs which would be incurred by the respondent in defending the claim.  

11.	No application for a deposit order was made by the respondent and Mr Ferrity’s explanation for this was that it was considered that an application for a deposit order might involve almost as much time and expense as bringing the matter to a full hearing.

12.	We were referred to the case of Vaughan v London Borough of Lewisham [2013] IRLR 713 where it was held that it is not essential for a costs warning letter to have been issued.  In that case Underhill J pointed out that the claimant had never suggested she would have discontinued her claim if she had received such a letter and even if she had, such assertion (in that case) would not have been credible.  

13.	In Vaughan Underhill J noted that the failure by a respondent to seek a deposit order or failure to warn the claimant of the hopelessness of her claims by way of a costs warning letter may not necessarily be fatal to an application for costs, if the order for costs is otherwise justified (see paragraph 19 of the judgment).

Unreasonable conduct

14.	In this case Mr Ferrity alleged that the claimant had acted unreasonably in bringing and conducting the claims.  Harvey (see paragraph 1064) indicates that unreasonable conduct includes conduct that is vexatious, abusive or disruptive.  The discretion of the tribunal is not fettered by any requirement to link the award causally to particular cost which had been incurred as a result of specific conduct which has been identified as unreasonable.  In McPherson v BMP Paribas (London Branch) [2004] EWCA Civ 569, Mummery LJ stated:

“The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as the fact is 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 cost to be incurred”.  

Subsequently in Yerrakalva, he stressed that this passage in McPherson was not intended to be interpreted as meaning either that questions of causation are to be disregarded or that tribunals must dissect the case in detail and compartmentalise conduct.  As he observed:

“The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.”  

He also observed that:

	“A costs decision in one case will not in most cases predetermine the outcome of a costs application in another case: the facts of the cases will be different, as will be the interaction of the relevant factors with one another and the varying weight to be attached to them”.

Reasons and Decision

15.	We are very much aware that any decision we make in relation to costs is made with the benefit of having heard the case in full and being aware of the strengths and weaknesses of the case.

16.	It is fair to say that the claimant was advised prior to initiating his claim that he was outside the three months time-limit for bringing the claim.  In fact the claim was lodged almost ten months after the termination of the claimant’s employment by his retirement.  He agreed in cross examination that by mid March 2013 at the very latest he was aware that he would have to apply and go through a recruitment process to be re-engaged as a part-time paramedic, but his claim was not lodged until 2 October 2013.  As far as the time-limit is concerned however, it would have been open to the tribunal to extend the time-limit for lodging the claim had it been satisfied that it was just and equitable in all the circumstances to do so.  As far as the time-limit point is concerned therefore we do not find that it was entirely misconceived or unreasonable on the claimant’s part to lodge his claim out of time.  In the event, as we have stated at paragraph 4.19 of the decision, we made a finding that the claimant had had access to information which would have allowed him to pursue his claim and that he did not act promptly in pursuing it.  Although we had already made a finding that there was no discriminatory policy being operated by the respondent, we stated in the decision that we did not believe in all the circumstances that it would have been just and equitable to extend the time-limit.

17.	As far as the merits of the claimant’s case are concerned, it is relevant to consider the information that he had when the claim was initiated and as it progressed.  The respondent agreed in evidence that there had previously been a policy operating within NIAS whereby leavers from the service were allowed to return on a part-time basis without going through a recruitment process.  Mrs Mullan, one of the respondent’s witnesses indicated that this policy had been discontinued in 2010/2011.  In her letter to the claimant in October 2012, prior to his retirement, she made it clear to him that if he wished to return to work on a part-time basis he would have to go through the normal recruitment process.  The claimant however appears to have ignored this and to have worked on the basis of what he said he knew was going on at the time i.e. that leavers were able to return to work without going through a recruitment process.  This was not in fact correct.  However the change in policy operated by the respondent had not been put in writing nor had it been publicised throughout the Trust, which would have avoided any confusion on the matter.  It is also relevant to note that the claimant had been off work due to illness from March 2012 and may not have been aware of the exact circumstances of colleagues who had retired but rejoined the service after a recruitment process.  As far as his direct comparator was concerned, she was a paramedic who had sought a career break in 2012.  When she was refused a career break, she raised a grievance before she resigned from NIAS, seeking a variation of her contract on a zero hours basis, which was granted.  We therefore found her circumstances were different to the claimants and that she was not a true comparator.  It is not at all clear to us that the claimant knew the detail of her circumstances before he lodged his claim or indeed that this was fully explored until the actual hearing.  In the light of this, and while we can see that there were difficulties in the claimant’s claims which in the end he was unable to surmount, we cannot say that the outcome of the case was obvious from the outset.  It is our finding therefore that we cannot say that the bringing of this claim was misconceived or that its conduct was unreasonable.  

18.	In all the circumstances we consider it appropriate that the respondent’s application for costs should be refused in this case.  While we have some concerns about the advisability of the claimant pursuing his claim, we do not accept that he could have known prior to the hearing that it was misconceived or unreasonable to pursue it, and accordingly we do not consider it is an appropriate case in which to exercise our discretion to award costs.

Employment Judge:       

Date and place of hearing:	10 October 2014, Belfast.	

Date decision recorded in register and issued to parties: