THE INDUSTRIAL TRIBUNALS

CASE REF:	1547/17IT

CLAIMANT:	Patrick Colgan

RESPONDENT:	Newry, Mourne and Down District Council 

DECISION ON COSTS

The decision of the tribunal is as follows:-

“It is ordered that the claimant pay to the respondent the sum of £375.00, together with any value added tax properly payable by the claimant to the respondent, as a contribution towards the costs of the respondent.”

Constitution of Tribunal:
Employment Judge (sitting alone):	Employment Judge Drennan QC	
Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Ms L McAloon, Solicitor, Worthingtons Solicitors. 

REASONS

1.1	The claimant presented his claim to the tribunal on 16 March 2017 and the respondent presented its response to the tribunal on 28 April 2017 denying liability for the claimant said claims.  In accordance with the tribunal’s normal case management procedures, the Case Management Discussion was held in this matter on 27 June 2017, as set out in the record of proceedings, dated 28 June 2017.  At that time, the claimant was represented by Mr D. Rafferty.  As set out in the said Record of Proceedings, the tribunal made various case management directions/orders to enable this matter to be listed for a substantive hearing.  Unfortunately, Mr Rafferty was unable to continue to represent the claimant, due to illness and, as a consequence, the tribunal was informed, on or about the 16 October 2017, that the claimant would now be represented by a union colleague of Mr Rafferty, Mr A. Hanna.  Following this change of representation, I arranged a Case Management Discussion on 30 October 2017, which the parties were directed to attend in person.  Unfortunately neither Mr Hanna, nor the claimant attended this hearing.  Mr Hanna sent an email on 30 October 2017 (08:04) informing the tribunal and the respondent’s representative:-

		“I am unable to attend the CMD listed for this morning at 9:30 am due to unforeseen circumstances in my full time job”.

	The respondent’s representative attended the hearing and, in the circumstances and the reasons given, as set out in the record of proceedings, dated 1 November 2017, I proceeded with the hearing, in the absence of the claimant and/or his representative.

1.2	As noted in the said record, I stated at paragraph 2 in relation to the absence of Mr Hanna at the hearing:-

		“this was most unsatisfactory, not least the timing of the email.  Indeed, I directed that a letter must be sent to Mr Hanna asking him to explain what were the unforeseen circumstances which led to his non-attendance at this hearing.  I appreciate that Mr Hanna has a full-time job but if he is going to represent parties in this tribunal, then he is going to have to make appropriate arrangements in relation to his full-time job in order to ensure that he is present at case management discussions, when so directed by the tribunal.  Indeed, prior to the commencement of this hearing, the tribunal tried to contact Mr Hanna on the telephone as it might have been possible to conduct this case management discussion, by way of telephone conference in the circumstances; but contact was unable to be made with him”.

	As set out in the said record, I acknowledged that the reality was this case had not progressed in any meaningful way since the previous Case Management Discussion on the 27 June 2017.  However, I appreciated Mr Hanna had only recently come on record and therefore, in the circumstances, I thought he had to be given a reasonable period in order to comply with the tribunal’s previous case management directions/orders.  I also indicated the consequences for the claimant if a tribunal’s orders were not complied with, including claimant’s claims having to be struck out.  I therefore arranged a further case management discussion in this matter on 14 December 2017 at 9.45 am.  I made it clear that the claimant and the claimant’s representative, together with the respondent’s representative must attend this hearing in person.  The respondent’s representative indicated that she wished to reserve her position, in the circumstances, due to the non attendance of the claimant’s representative in relation to an application for costs of the hearing.  In an email, dated 29 November 2017, Mr Hanna provided a further explanation, as directed, for his non-attendance on 30 October 2017, relating to illness of a severely disabled child, for whom he is the full-time carer, on the morning of the Case Management Discussion she could not therefore attend school.  In any event, the further Case Management Discussion, took place on 14 December 2017 and Mr Hanna attended that said hearing, as set out in the said record of proceedings, I made various Case Management Directions/Orders, as set out in the record of proceedings, to enable the substantive hearing in this matter to take place on 9‑13 April 2018.  

1.3	A further Case Management Discussion had to be arranged, dated 19 February 2018, as set out in the record of proceedings, dated 20 February 2018.  Again, the claimant did not appear and was not represented.  This hearing was to consider, inter alia, the respondent’s application for an Unless Order.  

	As set out in paragraph 2 of the said record, I noted that the claimant’s representative, who had not appeared at the said hearing, had made no application for a postponement of the hearing or provided any explanation to the tribunal, or to the respondent’s representative for his non attendance at this hearing.  I also noted that if the claimant’s representative had not made any application, for good reason, for attendance by way of telephone conference at this urgent case management discussion arising out of the failure of the claimant to comply with previous orders of the tribunal.  If he had done so I would have considered it, in accordance with the terms of the overriding objection.  I also pointed out that this was not the first occasion, in the course of these proceedings, that the claimant and/or his representative had not attended Case Management Discussions in this matter.  In the circumstances, I decided that I would proceed with this hearing, in the absence of the claimant and/or his representative and, as set out in the record of proceedings, dated 20 February 2018, I made an Unless Order, which required to be complied with by the claimant by 26 February 2018.  It required:-

	(1)	the claimant and any witness he wished to call to provide a signed and dated witness statement to the respondent’s representative;

	(2)	the claimant to provide a schedule of all financial loss claimed by the claimant, setting out in particular the nature and amount of any such loss, claimed and how that sum was made up;

	(3)	the claimant to set out the relevant details in paragraphs 3, 4 and 5 of the draft statement of issues exchanged between the representatives to enable an agreed final statement of issues to be lodged in the tribunal.

	By letter dated 21 February 2018, a copy of the said record of proceedings, together with the said Unless Order was sent by the tribunal to the claimant and his representative.  

1.4	A further case management discussion was arranged in this matter on 1 March 2018, as set out in the record of proceedings, dated 1 March 2018.  As set out in the said record, again the claimant did not appear and was not represented.  As recorded in the said record of proceedings, dated 1 March 2018, I noted:-

		“2	the representatives have been directed to attend this hearing in person, but due to the adverse weather conditions, I agreed that the hearing could be by way of telephone conference.  Unfortunately, whenever contact was sought to be made with the claimant’s representative on his mobile telephone, it was not possible to make any connection.  In the circumstances, I decided to proceed with the hearing in the absence of claimant’s representative.

		3	It appears there has been a failure by the claimant to comply with any part of the Unless Order, dated 20 February 2018.  In an email, dated 1 March 2018 Mr Hanna, the claimant’s representative requested an extension of time for witness statements to be sent by the claimant until Monday 5 March 2018.  He stated the claimant appreciated that if this extension was granted he would be allowed no further time to send a witness statement to the respondent.

		4.	There has been, as set out in previous correspondence and records of proceedings, continuing failure by the claimant to comply with the tribunal’s orders in this matter.  It is also necessary to point out that the Unless Order provided for the exchange of witness statements but also for the provision of a schedule of loss and to set out relevant details in paragraphs 3, 4 and 5 of the draft statement of issues exchanged between the representatives in order to enable an agreed statement of issues to be lodged in the tribunal.

		5.	In the circumstances, but not without some hesitation, I decided I would grant the extension to comply fully with the Unless Order and until no later than 3:30 pm on 5 March 2018.  I further directed that a further case management discussion will be held on this matter on 6 March 2018 at 9:15 am.  The representatives must attend this hearing in person, subject to any further direction/order of the tribunal, permitting attendance by way of telephone conference.  The claimant and his representative must understand the seriousness of his position if there is not full compliance with the said Unless Order by the said dated referred to above.

		6.	At that hearing, the respondent’s representative confirmed she would wish to renew her application for an Order for Costs in relation to the case management discussion on 19 February 2018 but also the case management discussion of 1 March 2018.”

1.5	A further case management discussion was arranged for 6 March 2018, as set out in the record of proceedings dated 7 March 2018.  Again, the claimant did not appear and was not represented.  As set out in the said record of proceedings, I noted the following:- 

	“1.	This hearing was arranged following previous correspondence in this matter and in particular, the record of proceedings, dated 20 February 2018 of the Case Management Discussion held on 19 February 2018 and the record of proceedings, dated 1 March 2018 that the Case Management Discussion on 1 March 2018.

	2.	As set out in the record of proceedings, dated 1 March 2018, I granted an extension of time to fully comply with the Unless Order previously made by the tribunal, until not later than 3:30 pm on 5 March 2018.  As set out in previous records of proceedings, in this matter, there has been continual failure by the claimant and/or his representative to comply with orders of the tribunal in time.  Further at the 5 Case Management Discussions which have been held in this matter, including this hearing, since the claimant’s representative came on record, he has failed to attend 4 out of those 5 Case Management Discussions.  This is contrary to the terms of the overriding objective, and, is the claimant’s representative intends to act as a representative in tribunal proceedings, then he must co-operate fully and properly with the tribunal and with the listing of tribunal proceedings in which he is a representative.  Once again, the claimant’s representative did not attend this hearing, sending an email to the tribunal, with a copy to the respondent’s representative at 07:49 on 6 March 2018 stating “…  I had been unable to secure time off work to attend this morning’s CMD at 09:15”.  I find it very difficult to accept that the claimant’s representative was unable to make an application to postpone the hearing, in the said email on 6 March 2018 before 07:49 on 6 March 2108.  Indeed, this is not the first time the sending “late/out of office hours emails has had to be raised with the claimant’s representative”.  This is particularly so, given that he was sending emails to the respondent’s representative on 5 March 2018 but gave no indication that he would require to make an application for a postponement.  Given the claimant’s representative record of attendance at this hearing, as referred to above, I was not prepared to postpone the hearing to 7 March 2018 (afternoon), as requested by the claimant, noting also the attendance, in person, of the respondent’s representative at this hearing.

	3.	Although the claimant had been informed, in the record of proceedings, dated 1 March 2018, and by the respondent’s representative in an email, that the time for compliance with the Unless Order had been extended to not later than 3.30 pm on 5 March 2018, the claimant’s representative did not provide the claimant’s witness statement until 15:56 pm and therefore out of time and the schedule of loss was not provided again, out of time, until 16:51 pm.  I had granted an extension of time until 3:30 pm on 5 March 2018, not without some hesitation; and therefore I find it extremely disrespectful and contrary to the terms of the overriding objective, that the claimant’s representative did not comply with the time limits extended by the tribunal.  It seems that the claimant and/or the claimant’s representative have failed to understand the seriousness of the situation and the fact that, in the exercise of my discretion, it would be possible for me to strike out the claimant’s claims, without further hearing or order and bring these proceedings to a halt.

	4.	However I have to acknowledge that there has been partial compliance by the claimant with the said Unless Order in that the claimant has now provided to the respondent’s representative a witness statement, albeit out of time.  However the schedule of loss provided by the claimant’s representative at 16:51 pm on 5 March 2018 is totally inadequate ….  This would be well known to the claimant’s representative, as an experienced representative in these tribunals.  Further, despite the terms of the Unless Order, but also as set out in the record of proceedings dated 1 March 2018, the claimant has failed completely to provide the relevant details in paragraphs 3, 4 and 5 of the draft statement of issues exchanged between the representatives; and which it was agreed, as set out in the previous correspondence referred to in the previous record of proceedings, the claimant’s representative agreed to provide the relevant details to the respondent’s representative.

	5.	Not without some considerable hesitation in the circumstances, I decided that it was not appropriate, at this time, to strike out the claimant’s claims for failure to fully comply with the tribunal’s Unless Order, given the partial compliance referred to above by the provision of the claimant’s said witness statement.  In his email of 6 March 2018 (7:49) requesting a postponement of the case management discussion, the claimant’s representative made no application for an extension of time to comply with the Unless Order in relation to the schedule of loss and/or statement of issues.  In the absence of such application, I did not grant any further extension and therefore, in these respects, the Unless Order has not been complied with by the claimant.  However, in these circumstances, it must be clearly understood by the claimant’s representative that the sanction of striking out the claimant’s claims remains open to the tribunal in view of the ongoing failure to comply with the tribunal’s Unless Order in the respects referred to above.  If, by the date of the next hearing, as referred to below, the claimant does not fully comply with the tribunal’s Unless Order, in the respects outlined above, I will have to consider firstly at the commencement of the next hearing whether I should strike out the claimant’s claims without further hearing or order.

	6.	In the circumstances, I directed, on the application of the respondent’s representative, that a Pre-Hearing Review for a Deposit Order should be listed for hearing at 10.00 am on 27 March 2018.  Relevant notice of hearing will be issued in due course ….

	8.	As set out in previous records of proceedings, the respondent’s representative was due to renew her application for an Order for Costs at this hearing in relation to the Case Management Discussion on the 19 February 2018 but also the Case Management Discussion on 1 March 2018.  In the absence of the claimant’s representative, in the circumstances referred to above, I decided it was not appropriate to consider this application at this hearing but rather to consider and determine the said application for costs at the Deposit Order Pre-Hearing Review on 22 March 2018.  The respondent’s representative confirmed at that hearing, she would also be seeking an Order for Costs in relation to the Case Management Discussion on 6 March 2018 at the hearing on 22 March 2018.  

	A letter, dated 9 March 2018, enclosing a copy of the record of proceedings from the Case Management Discussion held on 6 March 2018 was sent to Mr Hanna and he was also informed that a Pre-Hearing Review for a Deposit Order had been arranged for the 22 March 2018 and that all representatives were required to attend in person.

	A copy of the said record of proceedings was also sent to the claimant’s representative, by email on 8 March 2018.  

1.6	On 22 March 2018 at 07:41 the tribunal received an email in the following terms.

		“My name is DK, I am trade union colleague of Mr Aidan Hanna.

		The representative of the claimant Mr Hanna has had a serious work related injury and has been placed on sick leave for at least two weeks by a medical professional.  The claimant therefore cannot be represented at today’s Pre-Hearing Review.  Mr Hanna will forward medical evidence of his work related injury immediately.” 

	By an email on 22 March 2018 at 09:32, the tribunal wrote to DK/Mr Hanna and asked for the following information, in particular, whether DK could attend the hearing in Mr Hanna’s absence and if not why; and the tribunal also asked to know the nature of the injury when it occurred and why the tribunal had not been informed of this development before 7:45 am on the 22 March 2018.  Further, subject to knowing the precise injury, the tribunal wanted to know if Mr Hanna could attend the Pre-Hearing Review by telephone.  The respondent’s representative had attended the said hearing and by the commencement of the said hearing, the tribunal had not received any reply from either DK or Mr Hanna.

	I was informed by the respondent’s representative, at the commencement of the hearing, despite what was stated previously by me, the Unless Order still had not been complied with in the respects referred to in the record of proceedings relating to the hearing on 7 March 2018, despite the intervening period.  Further there had been no application by the claimant’s representative for any extension of time.  The respondent’s representative made an application to strike out the claimant’s claims for failure to comply with the said Unless Order.  However, not without considerable hesitation, I decided not to do so at this hearing but rather to postpone the Deposit Order Pre-Hearing Review until 28 March 2018.  I pointed out that if by that date there remained continuing failure by the claimant to comply with the Unless Order, I would consider firstly, at the commencement of the next hearing, whether I should strike out the claimant’s claims and, if granted, therefore not to proceed with any Deposit Order Pre-Hearing Review.

	Despite not receiving any reply from either DK or Mr Hanna, as referred to above to the tribunal’s email, tribunal tried to contact Mr Hanna, by telephone, in order to see if a telephone attendance would have been possible but his mobile telephone immediately went to voicemail.  Further, the tribunal was not provided with any medical evidence as indicated in Mr Kerr’s email.  As noted in the record of proceedings, dated 22 March 2018 of the hearing on the 22 March 2018, I stated – “subject to clarification of these matters, I am concerned that Mr Hanna is, once again, showing total disrespect to the tribunal and is not acting in accordance with the terms of the overriding objective upon which he, as the claimant’s representative has a duty to comply and assist the tribunal. “

	However, in light of the foregoing, despite strong objections of the respondent’s representative, I decided, in the circumstances, following the notification by DK, I had no alternative, having regard to the interests of justice and the terms of the overriding objective, but to postpone this hearing.  However, I made it clear, as set out in the record of proceedings, dated 22 March 2018, I was not prepared to continue to postpone this matter, having regard to the history of this matter.  As a result, the Pre-Hearing Review was relisted for hearing at 10.00 am on 28 March 2018.  I made it clear that the claimant must attend the hearing.  Further, Mr Hanna, or if he is unable to attend for medical reasons, an alternative trade union representative, if available, must attend for the Pre-Hearing Review.  I made it clear I was not prepared, in the circumstances, to further postpone this matter due to the unavailability of a trade union representative, in the circumstances that had arisen in this case.  I also made it clear that if there was no appearance by the claimant and/or any representative on his behalf, the tribunal might proceed with Pre‑Hearing Review and/or if appropriate, strike out an application for failure to comply with the Unless Order, in the absence of the claimant and/or his representative.  I also made it clear that I was prepared to allow Mr Hanna to attend the hearing on 28 March 2018 by way of telephone conference if he was unable to attend in person, due to any medical condition.  I also stated that I expected Mr Hanna to provide to the tribunal, by return, the information requested in the tribunal’s email, referred to above of 22 March 2018, together with a relevant medical report setting out details of the injury sustained, when it was sustained, the treatment given, together with any other relevant information about prognosis.  The respondent’s representative reminded me that I had continually, during the history of this matter exercised my discretion to enable the claimant’s claim to continue. 

1.7	Further as set out in the record of proceedings, dated 22 March 2018, paragraph 10 of the said record I stated:

		“As set out in the record of proceedings, dated 7 March 2018, paragraph 8, I was also intending at this hearing to consider the respondent’s application for an Order for Costs rising out of the earlier proceedings.  The respondent’s representative has now made an application for costs in relation to this hearing on 22 March 2018 as well.  In the circumstances, I decided that it would not be appropriate, in the circumstances to determine any Order for Costs at this hearing and these applications will be heard at the hearing on 28 March 2018.  I ordered that the respondent’s representative must send to the claimant and the claimant’s representative by 23 March 2018 a schedule of all costs claimed, including the hearing on 22 March 2018.  To date the respondent’s representative’s application for Orders for Costs are pursuant to Rules 38-41 of the tribunal’s Rules for Procedure.  If the respondent’s representative intends to make any application for a wasted Costs Order against the representative of the claimant, pursuant to Rule 48 of the Rules of Procedure, then any such application must be made in writing, with a copy to the claimant and the respondent’s representative by 12 noon on 26 March 2018.” 

1.8	By letter dated 22 March 2018 a copy of the said record of proceedings, dated 22 March 2018, was sent to the claimant and Mr Hanna and drawing their attention to the Pre-Hearing Review to be held on 28 March 2018, set out in the said record of proceedings, dated 22 March 2018.  

1.9	An email dated 23 March 2018 at 13:47 DK informed the tribunal:

		“the injuries sustained by Mr Hanna is in relation to severe headaches and evidence of this will be forwarded to the tribunal immediately.  Mr Hanna could attend a Pre-Hearing Review by telephone on Monday 26 March 2018 or Tuesday 27 March 2018.  I have no knowledge of the case at all that is before you.  Mr Hanna was intending an internal disciplinary with the respondent on Tuesday 20 March when the injury became apparent.”

	By email dated 23 March 2018 15:30 pm DK was informed by the tribunal that the Employment Judge had directed that, as per the record of proceedings, the case listed for Pre-Hearing Review at 10.00 am on Wednesday 28 March 2018 shall remain listed for that date and time.

1.10	In an email dated 26 March 2018, at 16:43, the respondent’s representative wrote to Mr Hanna, with a copy to the tribunal stating 

		“Please find attached schedule of costs in respect of which we shall be seeking an Order for Costs against the claimant at the Pre-Hearing Review on 28 March 2018 under Rule 40(3) and (4) of Schedule 1 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  As you are aware I have previously placed you on notice of the respondent’s intention to seek a Costs Order in email correspondence of 19 February 2018, 1 and 6 March 2018.  For the avoidance of any doubt this application is not being made under Rule 48 of the above regulations.”

		By an email dated 27 March 2018 at 09:22 Mr Hanna stated to the respondent’s representative – “thank you for the attached schedule of costs”.  

1.11	By email dated 28 March 2018 at 07:43 the claimant’s representative, Mr Hanna, sent an email to the tribunal, which was copied to the respondent’s representative, stating:-

		“I write as the representative in the case of Pat Colgan -v- Newry Mourne and Down District. 

		As I am still unfit for work, I am unable to take part in the Pre-Hearing Review listed for 10.00 am (28 March 2018).  

		I had asked my GP if I could attend the hearing by telephone but this was not advised due to the serious of the illness.  As already stated medical evidence from my GP is being sent to the tribunal offices.

		The claimant therefore wishes to withdraw his claim in full.”

	Again, it has to be noted that this withdrawal by Mr Hanna of the claimant’s claim, together with the references to his illness was not sent to the tribunal until 07:43 on 28 March 2018, despite what had been said in previous records of proceedings about sending such late notification to the tribunal.  Again, the respondent’s representative had properly attended this hearing.  It also has to be noted that, at no stage, despite the requests by the tribunal, did Mr Hanna ever provide any medical evidence in relation to his inability to attend the tribunal.  

1.12	In light of the claimant’s withdrawal of his claim, the claimant’s claims were therefore dismissed, upon withdrawal, and a relevant decision will be issued to the parties.

1.13	In a further email by the tribunal, dated 28 March 2018 at 09:58, the tribunal stated to Mr Hanna:

		“An Employment Judge directed that you should attend the PHR listed today at 10.00 am by telephone conference.  The office will ring you on ….. at 10.00 am to deal with the issue of costs”.  The tribunal attempted to do so but again was unable to make any contact with the claimant on the telephone.”

1.14	I have set out above, in some detail, the history of this matter, in order to determine the respondent’s application for an Order for Costs.  This history is of particular relevance, not only in relation to whether the conduct of the claimant and/or his representative was unreasonable but also to the issue of my discretion in making any Order for Costs.

2.1	The relevant Rules of Procedure are contained in schedule 1 of the Industrial Tribunals (Constitutional Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Rules of Procedures”):-

2.2	Rule 38 of the Rules of Procedure, insofar as relevant material, provides:

	“(3)	For the purposes of these rules “costs” will mean fees, charges or dispersements incurred by or on behalf of a party in relation to the proceedings.

	(6)	Any costs order made under Rules 39, 40 or 47 shall be payable by the paying party and not his representative.

	(7)	The party may apply for a costs order to be made at any time during the proceedings.  An application may be made at the end of a hearing, or in writing to the Office of the Tribunals.  An application for costs which is received by the Office of the Tribunals later than 28 days from the issuing of the decision determining a claim shall not be accepted or considered by a tribunal or chairman unless it or he considers that it is in the interests of justice to do so.

	(9)	No costs order shall be made unless the Secretary has sent notice to the party against whom the order may be made giving him the opportunity to give reasons why the order should not be made.  This paragraph shall not be taken to require the Secretary to send notice to that party if the party has been given an opportunity to give reasons orally to the chairman or tribunal as to why the order should not be made.

	(10)	Where a tribunal or chairman makes a costs order it or he should provide written reasons for doing so if a request for written reasons is made within 14 days of the date of the costs order.  Secretary shall send a copy of the written reasons to all parties of the proceedings …”

	Rule 40 of the Rules of Procedure, insofar as relevant material, provides:

	“(2)	The 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).  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 the proceedings by the paying party has been misconceived.  

	(4)	The tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction.”

	Rule 41 of the Rules of Procedures, insofar as relevant and material, provides:-

	“(1)	The amount of a costs orders against a paying party shall be determined in any of the following ways:

		(a)	the tribunal may specify the sum which the paying party must pay to the receiving party, provided that sum does not exceed £10,000; 

		(b)	the parties may agree on a sum to be paid by the paying party to the receiving party and if they do so the costs order shall be for the sum so agreed;

		(c)	the tribunal may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be paid being determined by way of detailed assessment in a County Court in accordance with such of the scales prescribed by county court rules for proceedings in the county court as shall be directed by the order.

	(2)	The tribunal or chairman may have regard to the paying party’s ability to pay when considering whether it or he shall make a costs order or how much that order should be.

	(3)	For the avoidance of doubt, the amount of a costs order made under paragraph (1)(b) or (c) may exceed £10,000.

2.3	In Raggett  v  John Lewis PLC (2012) (UKEAT/0082/12) the Employment Appeal Tribunal held that, if the receiver can claim back the VAT element of any costs incurred as input tax, then those costs should be calculated net of VAT, because the receiver will otherwise receive a windfall.

	Further, I am satisfied, on a proper interpretation of the said Rules of Procedure, that the cap of £10,000 on the amount of costs which can be awarded, pursuant to Rule 41(1)(a) of the Rules of Procedure, includes any sum properly payable by way of value added tax.

2.4	The respondent’s representative confirmed that, in making her application for costs, she was doing so pursuant to Rule 41(1)(a) the Rules of Procedure (which said cap is £10,000) and she was not seeking to make an application for assessment pursuant to Rule 41(1)(c) of the Rules of Procedure.  In this context, it has to be noted that the rule of procedure allowing a party to seek the assessment of cost by way of detailed assessment in the county court, in accordance with such scales prescribed by county court Rules for Proceedings in the county court, is of limited assistance, if any, to many parties, despite the provision in Rule 41(3) that accepts a costs order following such an assessment, may exceed £10,000.  This is because none of the relevant county court scales allow for an order for costs in excess of the cap at £10,000, provided for in Rule 41(1)(a) of the Rules of Procedure.  In these present proceedings, the amount of costs claimed by the respondents, set out in the schedule of costs provided to the tribunal, for the purposes of this application did not exceed the cap of £10,000.  And therefore it was not necessary for me to consider this issue any further.  However, in this context, it was necessary to note what I stated in a previous decision, in the case of Bell  v  Primark Stores Limited and Others (Case Reference 76/15FET and 2517/15), a decision recorded in the register and issued to parties on 29 August 2017, expressed my concerns about this rule; and that it was a matter which required to be considered further by the legislative authorities and, if appropriate, by an amendment to the Rules of Procedure.  Unfortunately, in the absence of a functioning legislative assembly, the issue of any amendment to the Rules of Procedure has been unable, to date, to be considered further.

3.1	Under Rule 40(2), (3) and (4) of the Rules of Procedure, it has long been recognised that it is necessary for a Tribunal, when considering an application for costs under the said Rules of Procedure, to embark on a two-stage process.  Firstly, the Tribunal has to consider whether it has been established that the relevant party has satisfied the terms of Rule 40(2), (3) – for example a finding of otherwise unreasonable conduct and/or the bringing or conducting of proceedings has been misconceived.  A Tribunal then has to consider, secondly and separately, whether to exercise its discretion to make an Order for Costs (see further Criddle  v  Epcot Ltd [UKEAT/0275/05].  Vaughan  v  London Borough of Lewisham & Others [2013] UKEAT/0533/12.  Power  v  Panasonic (UK) Ltd [2005] UKEAT/0439/04.)  Mummery LJ in Khan  v  Kirklees BC [2007] EWCA Civ 1342, in the course of his judgment, stated that it was not possible to list exhaustively what all the circumstances at the second stage might be.  However, he indicated (see Paragraph 8 of the judgment) potentially relevant considerations might include conduct, proportionality and the merits of the case and also whether a person is represented or unrepresented.  However he emphasised this was not an exhaustive list and each case would depend on its own particular facts.  

	In Ayoola  v  St Christopher’s Fellowship [2014] UKEAT/0508/13 the Employment Appeal Tribunal again emphasised the two stage process; but also stated, simply because the costs jurisdiction has been engaged, costs do not follow the event, and a Tribunal still needs to be satisfied it would be appropriate to make an award of costs (see further Criddle  v  Epcot Leisure Ltd [2005] and Robinson  v  Hall Gregory Recruitment Ltd [2013] UKEAT/0425/13/BA and the recent decision in Abaya v Leeds Teaching Hospital [2017] UKEAT/0258/16/BA).

	In Ayoola HH Judge Eady QC emphasised (see Paragraph 51) that any assessment of costs by a Tribunal, even a summary assessment, must still be exercised judicially and any costs awarded must not breach the indemnity principle and must compensate not penalise; and there requires to be some indication the Tribunal has adopted an approach which enables it to explain how the amount is calculated.

Unlike the Rules, which normally apply to proceedings in, for example, the High Court/County Court, costs do not follow the event.  In addition, the Rules of Procedure do not replicate the general Rules, applicable in those Courts, which provide, where a plaintiff discontinues proceedings, he is normally liable for the costs which a defendant has incurred before a Notice of Discontinuance is served on him.  In the case of Lodwick  v  London Borough of Southwark [2004] IRLR 554, a case of unfair dismissal/ breach of contract, Lord Justice Pill made it clear, when considering whether an Order for Costs should be made under the said Rule:-

“To order costs in the Employment Tribunal is an exceptional course of action and the reason for, and the basis of, an Order should be specified clearly; especially where a sum as substantial as £4,000.00 is involved.”

There is nothing in the Rules of Procedure which expressly states that an Order for Costs should be considered the exception rather than the rule.  Certainly, however, that has been the view taken in relation to the exercise of the power under the said Rule, which governs claims, such as unfair dismissal/unlawful discrimination (see further the case of Gee  v  Shell UK Ltd [2003] IRLR 82).  

	But, as Burton P in the case of Salinas v Bear Stearns International Holdings [2005] ICR 1117, stated:-

“The reason why Costs Orders are not made in the substantial majority of cases is that the Tribunal Rules contain a high hurdle to be surmounted, before such an Order can be considered.”

Those Rules, to which Burton P was referring, were the pre-conditions which required to be considered before the issue of the discretion arises, as set out above.  In the case of Benyon  v  Scadden [1999] IRLR 700, it was emphasised that the Costs Rules are discretionary and, as such, cannot be restricted by case law.  Matters to be derived from the case law can only be factors that may or may not be given weight by the Tribunal.  In any event, an Order for Costs must be compensatory and not punitive (see further Lodwick  v  London Borough of Southwark [2004] IRLR 554).  (In the decision of the Employment Appeal Tribunal in the case of Baker  v  Toal Bookmakers Ltd t/a Tote Sports [UKEAT/0538/11], unreported, HH Judge Clark again emphasised that Costs Orders in the Tribunal are exceptional (see further the recent decisions in Sud  v  London Borough of Ealing [2013] EWCA Civ 949.) and Ayoola [2014] and Abaya [2017], which reaffirm the above guidance that Order for Costs are the exception rather than the rule.)

3.2	However, in the judgment of this Tribunal, when exercising its discretion, the Tribunal also has to have regard to 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 objectives, 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.”

3.3	In the well-known case of McPherson  v  BNP Paribas [2004] IRLR 558, the Court of Appeal emphasised that withdrawal on its own is not necessarily unreasonable behaviour for the purposes of the said Rules of Procedure.

In that case, the claimant withdrew his case several weeks before the hearing so there was no decision on the substantive merits, but the Tribunal nevertheless made an Order for Costs in favour of the respondents.  Mummery LJ set out the conflicting considerations.  He stated, on the one hand, it was important for claimants not to be deterred from making a sensible litigation decision by dropping a claim because of the prospect of an Order for Costs on withdrawal, which may not be made against them if they fought on to a full hearing and failed.  He acknowledged that in most cases the withdrawal will result in a saving of costs.  On the other hand, he also recognised that the practice of never making Costs Orders on withdrawal might encourage speculative claims, by allowing claimants to start cases and to pursue them down to the last week or two before the hearing in the hope of receiving an offer to settle, and then, failing an offer, dropping the case without any risk of a costs sanction.  He concluded:-

	“The solution lay in the proper construction and sensible application of the Rule.  The crucial question is whether, in all the circumstances of the case, the claimant withdrawing the claim has conducted the proceedings unreasonably.  It is not whether the withdrawal of a claim is in itself unreasonable.”

	On the facts of the McPherson case, the Court found that the Tribunal was entitled to conclude that there was unreasonable conduct at the proceedings on the part of the claimant.  

3.4	In a recent decision of the Court of Appeal in the case of Barnsley Metropolitan Borough Council  v  Yerrakalva [2011] EWCA Civ 1255, Mummery LJ took the opportunity to review the authorities in relation to the issue to costs under the Rules of Procedure applying in the Employment Tribunals in Great Britain, which are in similar terms to the Fair Employment Tribunals Rules of Procedure applying in Northern Ireland.  

	In particular, in the course of his judgment he stated:-

“39	I begin with some words of caution, first about the citation and value of authority on costs questions and, secondly, about the dangers of adopting an over analytical approach to the exercise of a broad exercise. 

 40	The official words of [Rule 40] are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations.  Unfortunately, the leading judgment in McPherson delivered by me has created some confusion in the  ET, EAT and in this Court.  I say ‘unfortunately’ because it was never my intention to re-write the Rule, or to add a gloss to it, either by disregarding questions for causation or by requiring the ET to dissect the case in detail and compartmentalise the relevant conduct under separate headings, such as ‘nature’, ‘gravity’ and ‘effect’.  Perhaps I should have said less and simply kept the actual words of the Rule.  

 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 a 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 above from my judgment 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.  

42	On matters of discretion an earlier case only stands as authority for what are, or what are not, the principles governing the discretion and serving only as a broad steer on the factors on the paramount principles of relevance … .”

	In addition, Mummery LJ in the course of his judgment (see, in particular, Paragraphs 7 – 9) repeated that costs are in the discretion of the Employment Tribunal and the Employment Tribunal’s powers to order costs are more sparingly exercised and are more circumscribed by the Rules of Procedure than those in the ordinary Courts; and that an Employment Tribunal Costs Order is the exception rather than the Rule.  Mummery LJ, at Paragraph 49 of his judgment, also made it clear that Orders for Costs are based on and reflect broad brush first instance assessments.  

3.5	In the recent case of Sud  v  London Borough of Ealing [2013] EWCA Civ 949, Lord Justice Fulford, having reviewed the above legal authorities, referred to in the previous sub-paragraphs, stated at Paragraph 75 of his judgment:-

“On the basis of those authorities, although an award of costs against a paying party in the Employment Tribunal, is an exceptional event, the Tribunal should focus principally on the criteria established in Rule 40.  In the context of the present case, the Tribunal needed to consider whether the claimant’s conduct of the proceedings was unreasonable and, if it so concluded, it was necessary for the Court to identify the particular unreasonable conduct, along with its effect.  This is not a process that entails a detailed or minute assessment, but instead the Court should adopt a broad brush approach, against the background of the totality of the relevant circumstances.”

	(See a helpful summary of the authorities in relation to the making of an award of costs in the Tribunal, in Chadburn  v  Mann and Another [2015] UKEAT/0259/14.)

3.6	In the case of A Q Ltd  v  Holden [UKEAT/0021/12], the Employment Appeal Tribunal confirmed that the threshold test in Rule 40(2), (3) are the same whether a litigant is or is not professionally represented; but, in the application of those tests, whether a litigant is professionally represented may well require to be taken into account.  It held that a Tribunal cannot and should not judge a litigant-in-person by the standards of a professional representative.  It suggested that, since lay people are entitled to represent themselves in Tribunals and since legal aid is not available and will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves.  His Honour Judge Richardson stated:-

“Justice requires that Tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life … lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser.  Tribunals must bear this in mind when assessing the threshold test in Rule [35(3)].  Further, even if the threshold test for an Order for Costs are met, the Tribunal has discretion whether to make an Order.  This discretion will be exercised having regard to all the circumstances.  It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice.  This is not to say that lay people are immune for an Order for Costs; far from it as the case has made clear.  Some litigant-in-persons are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity … .”

In this context, it is also relevant to consider the judgment of Girvan LJ in Peifer when he stated:-

“When parties before the Tribunal appear in person, without the benefit of legal representation, the lack of legal experience on the part of an unrepresented party may lead to the pursuit of irrelevancies and unnecessary lengthy proceedings.  Whilst Tribunals must give some latitude to personal litigants who may be struggling in a complex field they must also be aware that the other parties will suffer from delay, incur increased cost, be exposed to unstructured and at times irrelevant cross-examination.  While we must have sympathy for a Tribunal faced with such a situation the Tribunal remains under the same duty to ensure that the overriding objectives and Regulation 3 are pursued.”

It is also relevant to note the judgment of the Employment Appeal Tribunal in the case of Jackson  v  Walsall Metropolitan Borough Council [UKEATPA/1247/10], when the Employment Appeal Tribunal decided that it would not interfere with the Employment Tribunal’s discretion to award costs against a claimant whose five claims had been dismissed, noting the claimant was a barrister with special experience in employment law and since she was a barrister meant that she should be alert to weaknesses in her case.  It also confirmed that a barrister specialising in employment law and asserting her knowledge is particularly open to scrutiny.  

In Liddington  v  2Gether NHS Trust [2016] UKEAT/0002/16, Mrs Justice Simler, when upholding an Order for Costs against a litigant-in-person, agreed such a person should not be held to the standards of a lawyer, made it clear this does not give such a person ‘a free pass’ when it comes to the risk of being ordered to pay costs.

In Smith and Hughes  v  Black and Persons Unknown [2016] NICH 16 Horner J cited, with approval, the judgment of Master Matthews in Jones  v  Longley [2016] EWHC 1309 :-

“There are not in our system two sets of rules, one for those who employ lawyers, and one for those who do not. There is only one set of rules, which applies to everyone, legally represented or not. The courts cannot and do not modify the rules for those who are not represented.”

Horner J also noted that, in Jones, Master Matthews “went on to say that although at the margins a personal litigant may be offered a little more leeway than a party who is legally represented”, there are no special rules of litigants-in-person as compared with those litigants who are represented.

Horner J also cited, with approval of Girvan LJ, in Magill  v  Ulster Independent Clinic [2010] NICA 33, when in the course of his judgment at Paragraph 16 he stated:-

“  …  a personal litigant cannot have an unfair advantage against represented parties by seeking to rely on inexperience or a lack of proper appreciation of what the law requires.  The application of legal principles poses a duty on the court to examine cases objectively without fear or favour to any party, represented or unrepresented.  While courts are conscious of the difficulties faced by a personal litigant representing herself and will strive to enable that person to present her case as well as they can, the dictates of objective fairness and justice preclude the court from in any way distorting the rules or the requirements of due process because one party is unrepresented.”

3.7	In the case of Peat & Others  v  Birmingham City Council [UKEAT/0503/11], Mr Justice Supperstone noted that 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.  In his judgment he held, on the facts of the case, if the claimant’s solicitors had engaged with the issues and the costs warnings letters, they would have likely have appreciated that the claimant’s reasonable prospect of success was so thin that it was not worth going to the hearing.

As set out in Harvey on Industrial Relations and Employment Law, Paragraph 1047, Section P1:-

“Considering whether to award costs in respect of a party’s conduct in bringing or pursuing a case which is subsequently held to lack merit, the type of conduct that will be considered unreasonable by a Tribunal will obviously depend on the facts of the individual case and there can be no hard and fast principle applicable to every situation.  In general, however, it would seem that the party must at least know or to be taken to have known that his case is unmeritorious (see Cartiers Superfoods Ltd  v  Laws [1978] IRLR 315) … .”

3.8	Although in the case of Jilley  v  Birmingham and Solihull Mental Health NHS Trust [UKEAT/0584/06], HH Judge Richardson confirmed that there is no ‘absolute duty’ on a Tribunal to take ability to pay into account, he commented that it would in many cases be desirable to take means into account before making an Order, as the ability of a party to pay may affect the exercise of an overall discretion.  In Doyle  v  North West & London Hospitals NHS Trust [UKEAT/0271/11], the Employment Appeal Tribunal commented that Tribunals should always be cautious before making a very large costs award, given the very serious potential consequence to a claimant of such an Order because such Orders may act as a disincentive to those bringing legitimate claims.  It was suggested that, in such a case, it would normally be necessary for a Tribunal to raise the issue of the potential paying party’s ability to pay costs, even if the issue was not raised by on or on behalf of that party.  (See further Oni  v  NHS Leicester City [2012] UKEAT/0144.)  However, in Osonnaya  v  Queen Mary University [UKEAT/0225/11], the Employment Appeal Tribunal confirmed, if the matter is raised, the Tribunal is required to consider ability to pay; but if the matter is not raised there is no legal authority, imposing a legal duty on the Judge to raise the question, even with a litigant-in-person.  In Mirikew  v  Wilson & Co Solicitors [UKEAT/0025/11] it was held it was not necessary to take the claimant’s means into if the claimant was voluntarily absent from the proceedings when the costs hearing was determined (although in the Court building).  If the evidence given by the claimant is contradictory or unreliable, again it is not necessary to take it into account (Shields Automative Ltd  v  Greig [UKEAT/0024/10]).  In the case of Vaughan  v  London Borough of Lewisham & Others [2013] IRLR 713 Underhill J, as he then was, approved the decision in Jilley and went on to hold that it was not wrong in principle to make an award where a claimant could not in her present financial circumstances, afford to pay and the Tribunal had formed the view that she might be able to meet it in due course.  

3.9	In Vaughan  v  London Borough of Lewisham & Others [2013] IRLR 713 Underhill J gave guidance in relation to the issue where an applicant for an Order for Costs has never applied for a Deposit Order and/or no costs warning has been given.

	Underhill J stated:-

“We do not believe that as a matter of law an award of costs can only be made where the party in question is being put on notice, by the making of a Deposit Order or otherwise that he or she is at risk as to costs.  Nor, however, do we believe that the absence of such notice, or warning, is necessarily irrelevant: indeed it was expressly relied on in a recent decision of Mr Recorder Luba QC as one of the reasons for not exercising a discretion to award costs under the cognate jurisdiction in this Tribunal – see Rogers  v  Dorothy Barley School [UKEAT/0013/12], at Paragraph 9.  What, if any, weight it should be given in any particular case must be judged in the circumstances of that case; and it is, as we have already observed, regrettable that the Tribunal does not expressly address the question.”

Indeed, Underhill J stated elsewhere in the judgment that he did not believe that the respondents’ failure to seek a Deposit Order, or otherwise to issue any costs warning asserting that the claims were hopeless, was cogent evidence that those claims had in fact any reasonable prospect of success.  He accepted that parties faced with what they believe to be weak claims/responses do not always seek Deposit Orders, on the grounds that sometimes it is thought that to do so risks the expenditure of further costs on a diversion which may not succeed or, which may only conduce to further delay appeals, or which in any event may not deter the claimant.  He concluded:-

“Such a view may be over pessimistic – and indeed we regard Deposit Orders properly used as a valuable tool for averting weak claims.  Nevertheless it is understandable; and that means the failure to seek an Order is not necessarily a recognition of the arguability of the claim.”

3.10	In Jilley it was held that once the Tribunal has decided that it will have regard to the paying party’s ability to pay then, as set out in the judgment of the Employment Appeal Tribunal:-

	“ … it should set out its findings about ability to pay, say what impact this has on its decision whether to award costs or on the amount of costs, and explain why.  Lengthy reasons are not required.  A succinct statement of how the Tribunal has dealt with the matter and why it has done so is generally essential.

Therefore if the Tribunal has decided that it will have regard to the paying party’s ability to pay, it has to take into account what is has found to be the paying party’s ability to pay.”

In Jilley the Employment Appeal Tribunal held that the Rules are wide enough … to allow a Tribunal to take account of ability to pay by placing a cap on an award of costs even where it orders a detailed assessment.

(See further Arrowsmith  v  Nottingham Trent University [2012] ICR 159 and Vaughan  v  London Borough of Lewisham & Others [2013] IRLR 715.)

In the recent case of Howman  v  The Queen Elizabeth Hospital Kings Lynn [2013] UKEAT/0509/12, the Employment Appeal Tribunal held that, if the Tribunal decides to have regard to someone’s ability to pay when deciding what Order for Costs it should make, it requires to balance the need to compensate the applicant who has unreasonably been put to expense against the other litigant’s ability to pay.  It held ‘the latter does not necessarily trump the former, but it may do so’.

In Herry  v  Dudley Metropolitan Council [2016] UKEAT/0100/16 the EAT followed Arrowsmith and Vaughan and the bringing into the equation the claimant’s future earning capacity, where appropriate to do so.

As held in Arrowsmith, the assessment is not limited to an assessment of the paying party’s current means; it may have regard to the prospect these means may improve (see Paragraphs 38 and 39 of the judgment).  

In Vaughan, Underhill P stated:-

“28.	The starting point is that even though the Tribunal thought it right to ‘have regard’ to the appellant’s means that did not require it to make a firm finding as to the maximum that it believed she could pay, either forthwith or within some specified timescale to limit the award to that amount …

29.	On that basis the question for the Tribunal – given we repeat, it thought to right to have regard to the appellant’s means – was essentially whether that was indeed a reasonable prospect of her being able in due course to return to well paid employment and thus to be in a position to make a payment of costs; and, if so, what limit ought nevertheless be placed on her ability to take account of her means in that scenario and, more generally, to take account of proportionality … .”

However, Herry also held, whilst, having decided to bring into the equation the future earning capacity the Tribunal was bound to consider what that earning capacity might be and whether an award of the whole costs was reasonable and proportionate having regard to that earning capacity.

(See further Chadburn  v  Doncaster and Basset Law Hospital NHS Trust and Another [2015] UKEAT/0259/14 approving Vaughan, where an award of costs was upheld even though currently the claimant could not afford to pay : affordability was not the only criterion for the exercise of discretion.  It should be noted there was also evidence that her financial position was likely to improve in light of a realistic prospect of a return to work by the claimant.)

In Shields Automotive Ltd  v  Grieg [UKEATS/0024/10], the Employment Appeal Tribunal held that assessing a person’s ability to pay involves considering their whole means, which can include reference to a person’s capital, represented by property or other investments. [Tribunal’s emphasis] such as equity in a home, even if not readily realisable.

Interestingly, in relation to the Rules of Procedure relating to the imposition of a Deposit Order (see Rule 20(2)),  where a similar term relating to ability to pay is to be found, albeit with no discretion (compare Rule 41(2) – ‘may’).  In the case of Simpson  v  Strathclyde Police and Another [UKEATS/0030/11], a Deposit Order case, the Employment Appeal Tribunal took into account, when considering the claimant’s available resources, the claimant’s student loan.  Given the similarity, under both Rules, in respect of the terms relating to ability to pay, the Tribunal is satisfied the case law, in relation to the interpretation of both Rules – subject to the issue of discretion, must be considered.

In Oni  v  Unison [2015] UKEAT/0370/14/LA, Mrs Justice Simler, in a costs case, considering issues of ability to pay, confirmed:-

“A paying party’s means are not restricted to income, but may include capital : for example the individual share of a matrimonial home.”

Whilst acknowledging that joint assets can be taken into account, Simler J also indicated somebody else’s earning could not be taken into account when determining a paying party’s means.  In Abaya  v  Leeds Teaching Hospital NHS Trust [2017] UKEAT/0258/16, Singh J held that an Employment Tribunal had erred in taking into account the means of the claimant’s ex-wife, without explaining how that impacted the claimant’s ability to pay.  

In Chadburn  v  Doncaster and Bassett Law Hospital NHS Foundation Trust [UKEAT/0259 in her review of the relevant authorities, referred to previously, Mrs Justice Simler, in relation to the issue of means to pay stated at Paragraphs 10(iv) of her judgment:-

“Rule 84 makes clear that the means of a paying party in any costs award may be considered twice.  First, in considering whether to make an award of costs the Tribunal may take into account the paying party’s ability to pay.  Secondly, if an award is to be made, it may take ability to pay into account in deciding how much should be awarded.  If means are not to be taken into account, it is desirable that the Tribunal explain why that is the case.  Where means are taken into account, the Tribunal should set out its findings about ability to pay, identifying broadly what impact that has had on its decision, whether or not to make an award of costs or as to the amount and explaining why, albeit that this can be done briefly and succinctly:  Jilley  v  Birmingham and Solihull Mental Health NHS Trust … .”

3.11	In Health Development Agency  v  Parish [2004] IRLR 550, the EAT held that the conduct of a party prior to proceedings, or unrelated to proceedings, cannot form the basis of an Order for Costs.  In Davidson  v  John Calder (Publishers) and Another [1985] IRLR 97, it was held the Tribunal, when considering whether to exercise the discretion to award costs against a party whom it is considered has acted frivolously, vexatiously or otherwise in conducting proceedings, it is the conduct in the course of the proceedings alone which has to be considered (see Paragraph 9).  The EAT also emphasised considerations of punishment are irrelevant to the exercise of the discretion.  

4.1	As referred to previously, the claimant’s representative sent an application for postponement on 28 March 2018 at 07:43, with the hearing due to commence at 10:00 am, which was consistent with the pattern that had developed, as referred to in paragraph 1 of this decision of sending late applications to the tribunal in circumstances where the respondent’s representative attended the hearing.  I find it difficult to understand why it was not until 7:43 on 28 March 2018 that the claimant’s representative informed the tribunal that the claimant wished to withdraw his claim in full.  Clearly, if this had been notified to the tribunal within working hours on the previous day, together with an application for postponement, the tribunal could have considered postponing the hearing to another date, to deal with the costs application as it was apparent that the Pre-Hearing Review would not require to proceed, given the withdrawal of the claimant’s claims; and the tribunal further would have been in a position to avoid requiring the respondent’s representative to attend the hearing.  Given the late notice, the respondent’s representative had to attend the hearing.  The claimant’s representative indicated in his said email that he asked his GP if he could attend the hearing by telephone but this was apparently not advised due to the seriousness of the illness.  Again, I would be very surprised to find that the GP had only told the claimant this on the 28 March 2018 at or about 07:43; and, if the GP was consulted, I assume that this must have taken place before the 28 March 2018.  It is apparent from the email that the claimant’s representative was still able to take instructions from the claimant in relation to withdrawal of the claims and also to send the said email itself.  However, despite the tribunal’s email asking the claimant’s representative to attend by way of telephone conference, it seems he was unable to answer his mobile telephone to confirm his position, let alone attend the said hearing.  This was despite the fact DK had indicated that Mr Hanna could attend on 26 March 2018 or 27 March 2018 but for some reason, unexplained, he was unable to attend on 28 March 2018.  Then when the tribunal refused to postpone the matter from the 28 March 2018, came this late email on 28 March 2018 at 07:43.  In this context, it has to be remembered that at no time, despite what was stated in the emails of Mr Hanna and/or DK, no medical evidence relating to the illness of Mr Hanna has ever been produced to the tribunal.  In light of the foregoing, and given the previous pattern in which the claimant’s representative, Mr Hanna, has sent in such late emails to the tribunal requesting postponements and/or then not attending hearings or making himself available on the telephone, I came to the conclusion that I should hear and determine this application for an Order for Costs, taking into account, the fact that the respondent’s representative was present at the hearing, in the circumstances referred to above, and that Mr Hanna had been provided with the schedule of costs and had acknowledged receipt of same.  As indicated previously, whenever the tribunal sought to contact Mr Hanna by telephone, the tribunal was unable to make contact.  In these circumstances I decided to proceed to hear the application by the respondent’s representative for an Order for Costs, in the absence of Mr Hanna and/or the claimant.  To have to adjourn the application in the circumstances where the respondent’s representative was present at the hearing would undoubtedly have led to a further application for costs of this hearing by the respondent’s representative.

4.2	In the said schedule of costs, the respondent’s representative stated that, pursuant to the said rules of procedure, the application was made on the basis the claimant and/or his representative had in conducting these proceedings acted abusively, disruptively or otherwise unreasonably in the following respects:-

		“The failure to provide the claimant’s witness statement until 15:56 on 5 March 2018 and breached the terms of the seven day Unless Order which initially expired on 26 February 2018 and was subsequently extended until 15:30 pm on 5 March 2018.

		The ongoing failure to comply with parts 2 and 3 of Unless Order which initially expired on 26 February 2018 and was subsequently extended until the 5 March 2018.

		The failure to attend the 3 case management discussions and Pre-Hearing Review as outlined below in relation to the necessary applications for an Unless Order, strike out and Deposit Order as outlined below.

		The claimant’s representative was placed on notice of the respondent’s intention to seek a Costs Order in the email correspondence of 19 February 2018, 1 and 6 March 2018.

		Attendance at case management discussions: 

	Tribunal office - 19 February 2018 - 40 minutes

	Teleconference - 1 March 2018 – 20 minutes

	Tribunal office - 6 March 2018 – 20 Minutes

Attendance at the Deposit Order Pre-Hearing Review

	Tribunal office - 22 March 2018 – 1 hour 15 minutes

		Correspondence to the tribunal office re applications for Unless Order and strike out

	Letter - 6 February 2018 – 12 minutes

	Letter - 14 February 2018 – 6 minutes

	Letter - 27 February 2018 – 6 minutes

		Email correspondence to the claimant’s representative re applications for Unless Order and Strike Out

			Email - 6 February 2018 – 6 minutes

			Emails - 19 February 2018 – 6 minutes
			
	Email - 26 February 2018 – 6 minutes

	Email – 27 February 2018 – 6 minutes

	Email – 1 March 2018 – 6 minutes

	Email – 6 March 2018 – 12 minutes

	Total time spent – 3 hours 41 minutes

	Solicitor’s hourly rates - £150 per hour plus VAT

	Total professional fees - £552.50 plus VAT

	Total costs applied for - £552.50.

	In submissions, the respondent’s representative made it clear her application related to the unreasonable conduct of the Claimant and/or his representative.
4.3	I was satisfied, in the circumstances, the costs claimed were an appropriate basis for calculation, in the absence of any other evidence and that the rates claimed by the respondent’s representative were reasonable in the circumstances and in accordance with hourly rates allowed by the taxing master, together with any appropriate mark-up/uplift (see Donaldson  v  Easton Health and Social Services Board (1997) NI 232).   I was also satisfied that the claimant and the claimant’s representative had been given the appropriate warnings that the respondent would be seeking to make this application for an Order for Costs.

4.4	The respondent’s representative referred, in the course of her submissions, to the matters set out in paragraph 1 of this decision and the history of the proceedings and, in particular, the matters referred to in the said schedule, as referred to above.  I have no doubt in this matter that the claimant and/or the claimant’s representative, for the reasons referred more specifically in paragraph 1 of this decision, have conducted these proceedings otherwise unreasonably.  Indeed, this could not be a more clear example of such unreasonable conduct.  It should not have occurred, especially after the warnings by the tribunal about such conduct and how it could not tolerated.  The terms of the overriding objective were completely ignored by the claimant and/or his representative.  However, in light of the legislation and case law referred to in paragraphs 2 and 3 of this decision, the fact that I have so found does not mean that an Order for Costs should be made by this tribunal.  The tribunal has a discretion in whether to make any such Order for Costs in a particular circumstances of this case.  Having taken account of the detailed guidance set out in the legal authorities referred to in paragraph 2 of this decision, I have come to the conclusion, as set out in the following sub-paragraphs of this decision.
	
4.5	Having considered carefully the case law referred to in paragraph 3 of this decision, I had no doubt given the history of this matter, as set out in paragraph 1 of this decision, that an order for costs should be made, in the exercise of my discretion.  Since Mr Hanna came on record, as the claimant’s representative, there has been little or no progress in this matter.  The tribunal has had to arrange numerous case management discussions, as referred to above, of which the claimant’s representative only attended one such hearing, despite the tribunal giving every indulgence to the claimant’s representative and granting extensions of time, in the discretion of the tribunal, despite strong objections by the respondent’s representative.  At the end of the day, with the Unless Order still remaining outstanding, in the respects referred to above, the claimant has simply withdrawn his claims to the tribunal, as he is entitled to do.  However, to reach that situation, the respondent’s representative has been required to incur the costs referred to in the said schedule.  If the claimant’s representative had properly conducted these proceedings, most of the said case management discussions could have been avoided, for the reasons set out in the record of proceedings, referred to in paragraph 1 of this decision.  Given the nature of the unreasonable conduct, in my judgment, it was necessary for my discretion to be exercised, requiring the claimant to be ordered to pay costs.  

4.6	The claimant’s representative did not attend the hearing, on 28 March 2018 or provide any information to the tribunal in relation to the claimant’s ability to pay any such Order for Costs.  The tribunal, pursuant to the said Rules of Procedure, is not required to consider the claimant’s ability to pay any such Order.  This issue was made more difficult for the tribunal due to his non-attendance at the Costs Hearing.  It must not be forgotten, in this context, that one of the matters, the subject matter of the Unless Order, which was never complied with related to the schedule of costs.  However, I noted that at the date of termination of his employment, with the respondent, the claimant was receiving in or about £288 net per week.  I further understand from the respondent’s representative that she had been informed that the claimant had obtained new employment from in or about August 2017.  She was not in possession of any information as to the precise nature of that employment and/or the earnings the claimant was receiving in his new employment; but she believed that it was, at least, at or about the same level as the earnings he received when employed by the respondent.  

	In the circumstances, and doing the best that I could in the circumstances, I took into account that the claimant was likely to be in receipt of earnings, at the present time, in or about £290 net per week.  

4.7	Although I am satisfied that the costs, set out in the respondent’s representative schedule of costs were reasonable and all had been incurred by the respondent, I decided that I should not make an Order for Costs in the total sum set out in the said schedule; but should make some reduction on the basis that, despite the conduct of the claimant and/or his representative, it was inevitable in tribunal proceedings, such as these, that some costs would be incurred by a respondent in relation to such interlocutory Hearings before any substantive Hearing and which would not normally be recoverable by a respondent in tribunal proceedings, in contrast to the situation in High Court/County Court proceedings where costs normally follow the event.  Further, although the conduct of the claimant and/or his representative was unreasonable, as set out above, the unnecessary hearings and work of the respondent’s representative relating thereto, did achieve some limited progress towards a substantive Hearing

4.8	Therefore, taking all of the above matters into account, I came to the conclusion that an order for costs in the sum of £375.00 plus value added tax properly payable by the claimant to the respondent should be ordered to be paid by the claimant to the respondent, as a contribution towards the costs of the respondent in this matter.

Employment Judge Drennan QC:

Date and place of hearing:   28 March 2018, Belfast.

Date decision recorded in register and issued to parties: