Cass v AMT-SYBEX (Northern Ireland) L... [2010] NIIT 00007

THE INDUSTRIAL TRIBUNALS

CASE REF: 00007/08

CLAIMANT: Linda Mary Cass

RESPONDENTS: 1. AMT-SYBEX (Northern Ireland) Limited

2. Stewart Reid - Managing Director

3. Martella Millar - H R Manager

4. Christine Ramsey - Receptionist/Admin

DECISION

The decision of the tribunal is that the respondents’ application for costs is refused.

Constitution of Tribunal:

Chairman (sitting alone): Mr Brian Greene

Appearances:

The claimant was not in attendance nor represented.

The respondents were represented by Mr P Sefton, of counsel, instructed by
Murphys Solicitors.

The Claim

1. A decision of the Industrial Tribunal was issued on 30 September 2009 dismissing the claimant’s claim of discrimination on the grounds of sex or her part-time working status. By letter of 8 October 2009 the respondents made an application for costs against the claimant.

The Issues

2. The issues for the Industrial Tribunal were whether an Order for costs should be made against the claimant in favour of the respondents, and if so, in what amount.

The Facts

3. (1) The Industrial Tribunal dismissed the claimant’s claim for discrimination on the grounds of sex or of her part-time working status on 30 September 2009.

(2) The respondents sought costs against the claimant on 8 October 2009 on the basis that her claim was frivolous and vexatious.

(3) The parties were informed by the Office of the Tribunals that the application for costs would be listed in December 2009.

(4) On 10 November 2009 the claimant appealed the decision of the tribunal by way of case stated.

(5) A date for the cost hearing was not arranged in December 2009 because the claimant had sought to appeal the decision of the tribunal.

(6) On 14 April 2010 the respondents wrote to the Office of the Tribunals requesting that their application for costs be addressed expeditiously.

(7) The Office of the Tribunals replied to the respondents on 16 April 2010 and indicated that it would not list the application for costs pending the outcome of the appeal process.

(8) On 6 August 2010 the respondents renewed their application for costs and sought that the matter be listed soon.

(9) The respondents were told by the Office of the Tribunals on 10 August 2010 that a costs application would not be listed until the outcome of the appeal process.

(10) By letter of 6 September 2010 the respondents renewed their application for costs. They further requested that the matter be listed for 24 September 2010 as they were involved in another matter on the same day in order to reduce costs.

(11) By letter of 14 September 2010 the Office of the Tribunals advised the parties that a Case Management Discussion would be listed for 24 September 2010 to consider the listing of the respondents’ application for costs.

(12) The parties were again informed by letter of 17 September 2010 of the Case Management Discussion listed for 24 September 2010 to consider the listing of the respondents’ application for costs.

(13) On 20 September 2010 the claimant e-mailed the Office of the Tribunals and indicated that the applications by the respondents and herself for costs had been disallowed.

(14) The claimant wrote to the President by letter of 22 September 2010. In that letter she indicated she would not be attending any hearings on 24 September. She stated in her letter that the tribunal had already ruled no costs for either party and that the case was not vexatious, scandalous or unreasonable and sought an explanation from the tribunal. She further stated that it was the respondents’ choice to engage the services of a legal team and thus incur legal expenses for themselves.

Enclosed with her letter the claimant attached a copy of a letter from the Legal Services Commission. The letter is dated 1 September 2010 and it appears to be an acknowledgement of an appeal lodged by Mrs Cass against a decision of the Legal Services Commission. The letter informed the claimant that her appeal would be heard as soon as possible. The letter does not name or give any suggestion or hint as to what this document refers.

(15) In her letter of 22 September 2010 the claimant stated that it would be unfair and unjust for the tribunal to even give consideration to this application for costs having already decided that there would be no costs.

(16) On 23 September 2010 the claimant e-mailed the Office of the Tribunals. In her e-mail she stated that she was awaiting legal aid and, “… it will be heard along with case 07/08 at the Court of Appeal”. She further indicated she could do nothing until she received legal aid to help to represent her within a legal framework and to force her to do so would be morally wrong and an order for costs would be totally unjust.

(17) At the Case Management Discussion on 24 September 2010, having considered the oral representations from the respondents and the written representations on behalf of the claimant, the tribunal directed that the respondents’ application for costs be heard on Friday 12 November 2010 at 2.00 pm. The tribunal also indicated that at that hearing it would also consider, what it understood to have been, an application for costs that the claimant had made against the respondents in relation to the same matter. The tribunal further directed that both parties should set out a detailed schedule of the costs that they were claiming against the other parties before the hearing on 12 November 2010.

(18) By letter of 20 October 2010 the claimant again wrote to the President. In that letter she stated that she was not seeking costs against the respondents. She further indicated that the tribunal had already ordered that no costs would be allowed in this case and it would be unfair and unjust for the tribunal even to give consideration to this application for costs. She added that the respondents had chosen to engage a legal team and had incurred the legal expenses consequent on that decision for themselves.

(19) The respondents submitted a schedule of costs for solicitor and counsel amounting to £68,955.33. They issued a further supplementary schedule of costs for solicitor and counsel amounting to £10,167.35.

(20) The hearing for costs was heard on 12 November 2010. The claimant was not in attendance as she had indicated she would not be. Nor was she represented.

Law

4. (1) The Industrial Tribunal may make an order for costs (Regulation 38 (1), Schedule 1, The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005).

(2) The Industrial Tribunal shall consider making an order for costs where in bringing or conducting the proceedings the paying party has acted vexatiously or unreasonably (Regulation 40(2) and (3), Schedule 1, The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005).

(3) The maximum amount of costs that the Industrial Tribunal can order is £10,000.00. If a party is seeking costs in excess of that the quantum needs to be assessed by the County Court (Regulation 41 (1) Schedule 1, The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005).

(4) Vexatious conduct involves the bringing or conducting of proceedings for some spiteful or improper motive amounting to an abuse of the process of the tribunals. In terms of a claimant’s conduct it was described in the decision of ET Marler Ltd v Robertson [1974] ICR 72 NICR at 76 as follows;-

“If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acted vexatiously, and likewise abuses the procedure. In such cases the tribunal may and doubtless usually will award costs against the employee …”

(Harvey on Industrial Relations and Employment Law P1[1044]).

(5) Tribunals have a wide discretion to award costs where they consider that there has been unreasonable conduct in the bringing or conducting of proceedings. Every aspect of the proceedings is covered, from the inception of the claim or defence, through the interim stages of the proceedings, to the conduct of the parties at the substantive hearing. Unreasonable conduct includes conduct that is vexatious, abusive or disruptive. When making a costs order on the ground of unreasonable conduct, the discretion of the tribunal is not fettered by any requirements to link the award causally to the costs incurred as a result of the conduct that has been identified as unreasonable. … in McPherson v BMP Paribas (London Branch) [2004] ICR 1398, Mummery LJ stated (at paragraph 40);-

“The principal of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion but that is not the same as requiring [the receiving party] to prove that specific unreasonable conduct by [the paying party] caused particular costs to be incurred”. [Harvey on Industrial Relations and Employment Law P1 [1043]).

(6) When considering whether to award costs in respect of a party’s conduct in bringing up pursuing a case that is subsequently held to have lacked 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 be taken to have known that his case is unmeritorious. (Harvey on Industrial Relations and Employment Law P1 [1047]).

(7) In the case of Wilkinson v Belfast City Council at paragraph 3 of the decision the tribunal recorded:-

“Before embarking on our consideration of the respective claims for costs, we remind ourselves that despite the now extensive provision in relation to costs tribunals remain largely a cost free zone and that an award of costs is very much the exception rather than the rule as is emphasised by the limited circumstances in which costs may be awarded and the case law in this area. We also bear in mind that the tribunal should be slow to award costs against an unsuccessful claimant in a discrimination case given that it remains difficult to prove discrimination particularly in the absence of direct evidence. …”

(8) In the case of ET Marler v Robertson [1974] ICR NICR Sir Hugh Griffiths stated;-

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

Submissions

Respondents

5. (1) The respondents are seeking costs under Regulation 40(3), Schedule 1, The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on the grounds that in bringing the proceedings and conducting the proceedings the claimant has acted vexatiously and unreasonably.

(2) The respondents indicated to the tribunal that, although their schedule of costs far exceeded the jurisdiction of the tribunal in relation to costs, they were seeking that the tribunal make an order in the full sum of £10,000.00 in their favour.

(3) The respondents stated that as far as they are aware the claimant has not appealed the decision of the tribunal.

(4) In support of the application for costs the respondents made the following points;-

(a) In the decision the claimant lost on all issues.

(b) The claimant wasted a lot of time in the course of the hearing, thereby elongating it, despite being advised by the tribunal as to how to conduct the proceedings and present her evidence.

(d) The respondents’ counsel referred the tribunal to its findings of fact at paragraphs 4(7), (9), (10) and (12) where the tribunal recorded that it was not persuaded on a number of factual matters upon which the claimant relied in support of her claim.

(e) Mr Sefton also referred the tribunal to its findings of facts at paragraph 4(22), (26), (29) and (30) where the tribunal, in relation to factual disputes, concluded that there was no persuasive evidence or not any evidence to support the claimant’s contentions. These matters again were issues upon which the claimant sought to rely in support of her claim for discrimination.

(f) Mr Sefton then referred the tribunal to its decision at paragraph 7, Legal Issue (1) “Did the respondent subject the claimant to less favourable treatment?” The tribunal concluded that it was not persuaded that the respondents had treated the claimant less favourably than her comparator.

(g) Similarly, in relation to Legal Issue (2), which sought to establish the grounds of any less favourable treatment, the tribunal concluded that it was not persuaded that any of the treatment suffered by the claimant was on the basis of her family status.

(h) In relation to Legal Issue (3), “… was the less favourable treatment as a result of the claimant being a part-time worker?”, again the tribunal concluded that there was not any evidence before the tribunal that the treatment visited on the claimant was as a result of her status as a part-time worker.

(i) As regards Legal Issue (4), “Did the respondent subject the claimant to indirect sex discrimination?”, the tribunal found that there was no indirect sex discrimination as there was no evidence to satisfy the requirements for indirect sex discrimination.

(j) In relation to Legal Issue (5) which dealt with the issue as to whether the claimant was the subject of victimisation, the tribunal was not persuaded of that either.

(k) Mr Sefton also referred the tribunal to paragraph 15 where it found that there was no proper comparator for the part-time work claim and that there was no persuasive evidence to support it.

Mr Sefton argued that the comprehensive rejection of the claimant’s claim amounted to vexatious or unreasonable conduct by the claimant in bringing and continuing with the proceedings.

(5) Addressing the question of the claimant’s ability to pay the respondents’ counsel intimated to the tribunal that there was not any evidence before the tribunal on which it could make any judgement on this matter.

(6) Mr Sefton accepted that the costs of events after the hearing are not recoverable in this application.

Claimant

6. (1) The claimant did not attend nor was she represented. She had, in an e-mail to the Office of the Tribunals and the President, made three points in relation to the respondents’ application for costs;-

(a) That the issue of costs in this matter had already been decided and disallowed by the tribunal.

(b) That the costs incurred by the respondents were the result of their choice of engaging a legal team to represent them at the hearing.

(c) That until legal aid was granted to her she was not in a position to adequately or properly deal with these issues in a legal forum.

Conclusions

7. The tribunal has carefully considered the matters put before it in this costs’ application, the applicable law and the submissions of the parties. It has concluded that it will refuse the respondents’ application for costs. In so concluding the tribunal had regard to the following matters;-

(1) The tribunal has not made any previous decision to disallow costs of this claim.

(2) The award of costs is discretionary and not punitive.

(3) As stated by Sir Hugh Griffiths in Marler v Robertson, “ordinary experience of life frequently teaches us that what is plain for us all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms.”

(4) The warning of the English Court of Appeal in the case of Igen v Wong [2005] 3 all ER 812 in its annex at paragraph 3 where it stated;-

“It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such evidence, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that he or she would not have fitted in.”

(5) Similarly in Nagarajan v London Regional Transport [1999] ICR 877, 884 Lord Nicholls said;-

“… Treatment, favourable or unfavourable, is a consequence which flows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”

(6) The claimant was absolutely convinced from start to finish of this hearing that she had been less favourably treated by the respondents. She believed that such treatment arose from discrimination on the basis of her family status and or by reason of her part-time working status. The tribunal is not persuaded that the evidence in this case manifested, on the part of the claimant, any spiteful or improper motive or an abuse of the process in bringing this claim and continuing with it. The tribunal therefore rejects the respondents’ contention that the claimant acted vexatiously.

(7) The claimant is a lay person, not a qualified lawyer. While she pursued and presented her claim tenaciously the tribunal is not persuaded that she would have had the knowledge to know that the evidence that she intended to adduce would fall short of the legal requirements in order to sustain her claims of discrimination on the grounds of sex and on her part-time working status.

(8) The question the tribunal asks itself is, should the claimant have realised at some stage in the course of presenting and conducting this claim that her evidence would not attain the requisite standards of proof. In considering this matter the tribunal notes that for a brief period of time, a number of weeks, the claimant had the benefit of solicitors and counsel at the case management stage.

(9) Having observed the claimant closely during a long case and having observed the absolute commitment with which the claimant conducted her case and the total conviction that she was the victim of discrimination the tribunal is not persuaded that she knew that her claim would not attain the requisite standards of proof or had grounds for so believing.

(10) The tribunal is not persuaded that in pursuing or conducting this claim the claimant has acted unreasonably.

(11) In relation to the elongation of the hearing the approach adopted by the respondents in some of the applications they made and in comprehensive cross-examination of the claimant also had the effect of lengthening this hearing.

Chairman:

Date and place of hearing: 12 November 2010, Belfast.

Date decision recorded in register and issued to the parties:

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Industrial Tribunals Northern Ireland Decisions