THE INDUSTRIAL TRIBUNALS

CASE REF:	  269/14

CLAIMANT:			Emma Rice

RESPONDENT:		Wincanton Group Limited

DECISION ON COSTS

The decision of the tribunal is that the claimant is ordered to pay costs in the sum of £750.00.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Crothers

Appearances:

The claimant was not present or represented.

The respondent was represented by Ms R Best, Barrister-at-Law instructed by Osborne Clarke Solicitors.

BACKGROUND

1.	The respondent’s application for costs is set out in correspondence to the tribunal dated 21 January 2015 as follows:-

			“Dear Sirs

	We refer to the above mentioned matter in which we are instructed on behalf of the Respondent.  The purpose of this correspondence is to apply for an order for costs against the Claimant in accordance with and pursuant to Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

	It is important to set out the background to this case, which provides the context for this application.

	The case was first listed for hearing from 8-10 September 2014.  The Claimant on the 5 September applied in writing to the tribunal to adjourn the matter in order to seek legal representation (her previous solicitors coming off record on 3 September).  This application was refused but she was given leave to renew it on the first morning.

	The Claimant duly renewed her application on 8 September and indicated to Employment Judge Buchanan that she had an appointment with solicitors scheduled for 10 September.  In all the circumstances the tribunal adjourned the matter on this basis until the new dates of 
13-15 January 2015.  The Tribunal reserved the costs of the original adjourned hearing to be determined at the reconvened hearing.

	The Respondent wrote to the Claimant on 2 October (copy attached at Annex 1) requesting details of her solicitors but did not receive a response to this letter.

	As late as 30 December 2014, the Claimant appeared to have every intention of proceeding with her claim (Annex 2).

	Without any warning to the Respondent the Claimant withdrew her claim on Thursday 8 January 2015.  This withdrawal being only a matter of days before the re-convened hearing.

	The Respondent has always been of the belief that this was an ill-conceived claim and that in bringing it the Claimant has behaved vexatiously, unreasonably and abusively.  In this regard the Respondent and in accordance with Rogers v Dorothy Barley School [2012] UKEAT/0013/12, sent a costs warning letter to the Claimant’s previous solicitors at an early stage in proceedings (30 June 2014 Annex A).

	The Respondent has incurred significant costs in defending this claim since 30 June 2014, (a schedule of costs is attached at Annex B).  The Respondent relies upon the judgment of Girvan LJ in the case of Peifer v Castlederg High School and Western Education & Library and Another [2008] NICA 49, where he confirmed that a Tribunal is required to give effect to the terms of the overriding objective, when it exercised any power given to it under the Rules of Procedure, which would include the power to order costs; and he stressed that these objectives were intended to be exactly what they were described as being, namely overriding objectives.  Indeed, he went on to state that:

	“Tribunals should be encouraged to use their increased costs powers 	set out in the Rules of Procedure to penalise time wasting or the 		pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents.”

	Therefore the Respondent in accordance with Regulation 38 & 40 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005, makes an application for costs, as it is of the belief that the Claimant has acted, in the bringing and/or conducting of these proceedings, vexatiously, abusively, disruptively or otherwise unreasonably and/or where in the bringing/conducting of the said proceedings by the claimant such proceedings were misconceived.

As set out above the full hearing was adjourned as a result of the Claimant’s late adjournment application.  The matter was adjourned for a period of 4 months but yet the Claimant failed to inform the Respondent of her intention to withdraw her claim and left such withdrawal to a matter of days before the reconvened matter.  The Respondent has therefore incurred significant additional legal costs in preparing for the new hearing (as detailed in the section Part 2 Costs of Annex B).

	The Respondent reserves the right to make further oral submissions at any scheduled hearing.

	We confirm we have complied with Rule 11(4).

	Yours faithfully

	Osborne Clarke”

2.	The claimant, who had claimed unfair dismissal, sex discrimination and victimisation, was in fact not dismissed by the respondent and continues to work for it.  Her net weekly wage is £281.91.  She produced no supporting evidence to the tribunal of any debt management plan or of the circumstances she described in her email to the tribunal of 3 March 2015, which was, according to the respondent, the only correspondence received in relation to its application for costs.

3.	The tribunal also considered the Annexes referred to in the above correspondence together with the correspondence from the claimant to the tribunal dated 3 March 2015, and the respondent’s further correspondence to the tribunal (copied to the claimant) also dated 3 March 2015 which states, inter alia:-

	“... the Claimant has half a day’s holiday that she is free to take tomorrow.  If the case overruns, then the Respondent would permit her to take in excess of the half a day’s holiday and this would not be taken out of next year’s entitlement.  She should therefore be able to attend tomorrow without this being unpaid”.

4.	The claimant’s correspondence of 3 March had stated that:

	“I really can't attend this appointment.  I am in a terrible position at the minute financially and cannot afford to take any unpaid time off.  I am on a debt management plan doing my best to help sort out my life but am finding it very very difficult with everything that has gone on in the past 18 months.  I currently have no heat in my house and with 2 young children I feel that this case is adding more and more pressure to me which I am really struggling to cope with.

Can I please ask that this be taken in [consideration] and any help or support on this be greatly appreciated. 

I only was pushing this case as I was instructed by my union representative advised me, never did I think that for one minute that this would cause so much strain and have cause so much stress on not only myself but my family. 

I am doing everything in my power to try and rebuild everything but with this hanging over me I can't. 

Can I please ask for some support or advise on this”.

5.	The claimant’s Solicitors notified the tribunal by email on 3 September 2014, that they were no longer on record for the claimant.

6.	The tribunal proceeded to dispose of the matter in accordance with Rule 27(5) and (6) of the Industrial Tribunal Rules of Procedure 2005 (as amended) which provide:-

	“(5)	If a party fails to attend or to be represented (for the purpose of conducting the party’s case at the hearing under Rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.

	(6)	If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties”.

THE LAW

7.	(i)		The tribunal’s power to award costs is contained in the Industrial Tribunal Rules of Procedure 2005 as amended.  Rules 40(2) and 40(3) state as follows:-

“40(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.”
	
	“Misconceived”, is defined in Regulation 2 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, as follows:-

			“misconceived includes having no reasonable prospect of success”. 

	(ii)	In relation to acting unreasonably, there is no necessity for a causal link between the party’s unreasonable behaviour and the costs incurred by the receiving party (McPherson v BNP Paribas [2004] EWCA Civ 569).  As Harvey on Industrial Relations and Employment Law (“Harvey”) makes clear at P1 [1046], “unreasonable conduct includes conduct that is vexatious, abusive, or disruptive”.  

	(iii)	The case of Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 the EWCA held that a tribunal in exercising the discretion vested in it by Rule 40 should look at the whole picture.  At paragraph 41 of his judgement, Mummery LJ stated:-

		“41.	The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to 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.  The main thrust of the passages cited ... from my judgement in McPherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed.  In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.”

	(iv)	For a party to succeed in arguing for costs on the basis of unreasonable conduct, it was not necessary to show that the other party had no reasonable prospect of success.  (Peat & Others v Birmingham City Council (UKEAT 0503/11).  In that case Supperston J also held that if the claimant’s Solicitors had engaged with the issues and the costs warning letters, they likely would have appreciated that the claimant’s reasonable prospect of success was so thin that it was not worth going to the hearing.

	(v)	The tribunal must go through a two stage process in determining whether to award costs.  The tribunal must firstly determine whether the claimant acted unreasonably and/or vexatiously in the bringing or conducting of the tribunal proceedings and/or the bringing and/or conducting of the proceedings was misconceived.  The tribunal must then decide whether or not it is appropriate to exercise its discretion to award costs in the particular circumstances of the case (Criddle v Epcot Ltd (UKEAT/0275/05) and Khan v Kirklees BC (2007) EWCA Civ 1342).

SUBMISSIONS

8.	Ms Best referred the tribunal to the application for costs and the relevant Annexes.  She also referred the tribunal to the relevant principles set out in McPherson, Peat, and Yerrakalva and in the case of Rogers v Dorothy Barley School [UKEAT/0013/12/LA] (which deals with the need to issue a costs warning as soon as possible).  She referred the tribunal to the schedule of costs which was in two parts – from 30 June 2014 to 8 September 2014, totalling £5,323.34 and from 9 September 2014 to the date of withdrawal of a claim by the claimant totalling £1,292.00.  The total bill excluding VAT under the principles laid down in the case of Raggett v John Lewis PLC 2012 (UKEAT0082/12), was £6,615.34.

9.	The essence of Ms Best’s submissions was that at the time of the correspondence setting out its defence on 30 June 2014, the claimant was still legally represented and backed by her union.  After the adjournment of the first hearing in September 2014, Ms Best submitted that the claimant ignored the correspondence from the respondent’s Solicitors leading the respondent to believe that her case was continuing.  They continued to prepare for the hearing in January 2015 and a few days before the reconvened hearing the claimant withdrew her claim thereby demonstrating unreasonable conduct.

CONCLUSIONS

10.	Having carefully considered the matter in accordance with Rule 27 and having considered the factual background and the principles of law applicable to the respondent’s costs application, the tribunal concludes as follows:-

	(i)	A claimant who decides at the last moment to withdraw his claim, thereby causing the respondent unnecessary work and expense in preparing the case, may well be held to have acted unreasonably in delaying the withdrawal.  (McPherson).

	(ii)	The tribunal is satisfied that the claimant has, in conducting the proceedings, acted unreasonably.  This is reflected in the undisputed sequence set out in the respondent’s Solicitor’s application for costs and in Ms Best’s submissions.  The tribunal is satisfied that the overall effect of this unreasonable behaviour was to elongate the proceedings and has led to the respondent incurring unnecessary additional costs.

	(iii)	The tribunal is further satisfied that it should exercise its discretion and order the claimant to pay costs to the respondent in the sum of £750.00, relating to the period after the postponement of the hearing listed from 
8-10 September 2014.

Employment Judge:       

Date and place of hearing:	4 March 2015, Belfast.	

Date decision recorded in register and issued to parties: