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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gannon v Wave Trauma Centre [2008] NIIT 352_07IT (19 August 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/352_07IT.html Cite as: [2008] NIIT 352_7IT, [2008] NIIT 352_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 352/07

CLAIMANT: Paul Gannon

RESPONDENT: Wave Trauma Centre

DECISION

The decision of the tribunal is that the claimant is order to pay to the respondent the sum of £500 + VAT (£587.50) by way of costs.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr S A Crothers

Appearances:

The claimant was present and represented himself.

The respondent was represented by Mr Jackson, Solicitor, of Thompsons Solicitors.

THE CLAIM

1. A decision of this tribunal was issued on 21 February 2008 dismissing the claimant's complaint that he was entitled to one month's wages in lieu of notice, having found that the claimant was summarily dismissed. At the conclusion of the hearing on 5 February 2007, the respondent's solicitors indicated that, depending on the outcome of the case, an application for costs may be made. The respondent had also referred to costs in its response presented to the tribunal on 19 April 2007.

THE ISSUES

2. The issue for the tribunal was whether an order for costs should be made against the claimant and if so, in what amount.

THE FACTS

3. (1) The substantive case was part heard on 1 August 2007. The claimant did not return to the tribunal in the afternoon and the matter was postponed. The claimant left a note for the tribunal's attention stating that he had received bad family news. This was not disputed by the respondent. The tribunal attempted on several occasions to reconvene the hearing. The claimant made it clear that due to a variety of reasons he would not be attending any reconvened tribunal hearing. In correspondence received in the tribunal office on 21 January 2008 he indicated that his father had died before Christmas after a long illness and that he was still coming to terms with this and other family issues related to his death. He also pointed out that he would not be attending the hearing on 5 February but wished the tribunal hearing to proceed in his absence as he had already given his evidence and provided the tribunal with written evidence on specific issues which the Chairman may choose to raise with the respondent at the hearing. This was in fact done. Unfortunately this letter had not been copied to the respondent's solicitor and he therefore relented on any argument under Rule 40(1) of Schedule 1 to the Industrial Tribunals (Rules of Procedure) 2005 ("the Rules").

(2) The respondent's solicitor presented the tribunal with a breakdown of costs claimed. He also relied on a number of items of correspondence from the applicant contained in the bundle at the substantive hearing and further correspondence and e-mails generated by the claimant and forwarded to the tribunal office between 1 August 2007 and 5 February 2008.

(3) It was clear to the tribunal that the claimant has a limited income at the date of this costs hearing of approximately £350 net per week which, he indicated, was not set to continue. He also indicated that he had no savings. He did not have sufficient continuity of employment to bring a claim of unfair dismissal against the respondent. However, it was a finding of fact by this tribunal at the substantive hearing that the claimant was summarily dismissed within the terms and conditions of his employment and, this being the case, he was not entitled to a notice payment.

THE LAW

4. (1) Rule 40 of the Rules which was relied on by the respondent, provides that a tribunal may award costs in favour of a legally represented party. The relevant provisions are:-

"(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.

(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived."

"Misconceived" as defined in Regulation 2(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 "includes having no reasonable prospect of success". The tribunal also considered Rule 41 and the paying party's ability to pay under Rule 41(2).

(2) A tribunal's power to award costs under Rule 40 is discretionary. The Court of Appeal in England and Wales pointed out in the case of Gee v Shell UK Ltd [2003] IRLR 82 that costs in the employment tribunal is still the exception rather than the rule. Moreover, it is a two stage test. The tribunal must ask itself whether a party's conduct falls with Rule 40(3). If so, it must then ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party and the amount to be awarded.

SUBMISSIONS

3. The respondent's counsel relied on a number of tribunal decisions namely John Kirk v South Eastern Education and Library Board (Case Ref: 929/05) Stephen Carabine v Royal Mail (Case Refs: 655/06; 1120/06) and, insofar as relevant Thomas Bradin v Department for Regional Development (Case Refs: 1180/05; 1253/06 and 455/06), and Paul Quinn v Castlebay Diesel Ltd (Case Ref: 220/07). The claimant forwarded further written submissions after the conclusion of this hearing which the Tribunal considered in the interests of justice together with the further correspondence from the respondent's solicitors in response to these further submissions.

CONCLUSIONS

4. In order to be vexatious, there must be evidence of some spite or desire to harass the other side or the existence of some other improper motive. "Unreasonable" has its ordinary English meaning. The tribunal also considered the meaning of the words abusively or disruptively and the respondent's further submission that the proceedings were misconceived. In Scott v Commissioners of Inland Revenue [2004] IRLR 713, CA, (England and Wales) Lord Justice Sedley clarified that the key question with regard to the misconceived ground is not whether the party thought he was in the right, but whether he had reasonable grounds for doing so. The tribunal is satisfied that the claim to the tribunal was misconceived. It does not, however, conclude that the claimant in bringing the proceedings or in conducting the proceedings has acted vexatiously abusively disruptively or otherwise unreasonably. The tribunal does not accept his submission that the respondents ought to have sought a deposit hearing, as evidence was clearly necessary in order to determine the issue in the case and oral evidence is not permitted at a deposit hearing.
5. Having taken the appropriate rules and regulations into account together with relevant authorities, the tribunal is satisfied, that it should award the respondent an

amount in costs of £500 + VAT (total £587.50). In doing so it has also borne in mind that awarding costs is not a punitive matter.

Chairman:

Date and place of hearing: 9 June 2008, Belfast.

Date decision recorded in register and issued to parties: