Purohit V Hospira UK Ltd (Rev 1) (Practice and Procedure : Costs) [2012] UKEAT 0306_11

Appeal No. UKEAT/0306/11/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 18 April 2012

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR B PUROHIT APPELLANT

HOSPIRA UK LTD RESPONDENT

Transcript of Proceedings

JUDGMENT

(para 28 corrected under Rule 33(3))

SUMMARY

PRACTICE AND PROCEDURE

Costs

Review

The unsuccessful Claimant sought a review of the Employment Tribunal judgment. It was an extensive application. The Employment Judge sought a comprehensive response by the Respondent in his preliminary consideration under rule 35(3). The Respondent responded and sought its cost of so doing. Without a hearing, but after reading the Claimant’s submissions, the Employment Judge refused to order a review and awarded a portion of the Respondent’s costs. The Employment Judge did not err or exercise his discretion wrongly. Costs may be awarded at any stage of the proceedings if the criteria in rule 40(3) are met.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about costs. I will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against a Judgment of Employment Judge Smail, sitting alone and dealing with the matter on the papers at Watford. The judge refused to accede to an application for review of the substantive Judgment - that matter is not the subject of an appeal. He then made a further order on application by the Respondent that the Claimant pay a part of the Respondent’s costs, valued at £2,000, incurred in responding to the Claimant’s application for a review.

3. The Claimant represents himself. He has been before me on appeals and applications in relation to his wife’s case, also against the same Respondent, and the observations I made in both of those cases apply here. In particular, Mr Purohit himself is experienced in Employment Tribunal proceedings. He has some legal qualifications and, pending registration in the UK, provides services under the title of Suresh Legal Services. The Employment Tribunal recognised that he was experienced and understood his way around the law. In the hearing that I conducted with members in UKEAT/0229/11, we endorsed that view. So, he is not a UK solicitor or barrister but he is not a lay person wholly unfamiliar with legal procedures in the Employment Tribunals.

4. Invocation of his representation of his wife has been sought by Mr De Marco, who has throughout represented the Respondent and who provided the written submissions in opposition to the application for a review. In the other case in which I heard Mr Purohit as a representative I noted that very substantial arguments, at least in length, had been presented by Mr Purohit (see UKEAT/0296/11 and UKEAT/0297/11).

5. What the Respondent seeks to do is to point to Mr Purohit’s conduct in the litigation of his own and his wife’s cases as background to the decision in the present case; he unreasonably conducts litigation, fails, fails on appeal, cost orders are made. Mr Purohit objects to the joining together of the two contending that this is a breach of his human rights. In my judgement, the matters are separate but it is not irrelevant to note the Claimant and comments that have been made about his conduct as a representative of his wife against the same Respondent when I consider issues in relation to his conduct in his present case. That, however, is the limit of the cross-reference.

The facts

6. The facts of the case can be summarised very briefly by my drawing upon the work done by HHJ Peter Clark in this very case, for he said in UKEAT/1520/10 and UKEATPA/1557/10 in judgments given under Rule 3(10) the following:

“3. The Claimant, who is of Indian origin, was employed by the Respondent as a technician at the Park Royal facility from 15 March 2004 until his dismissal effective on 8 June 2009. By a form ET1 lodged on 30 July 2009 the Claimant complained of unfair dismissal, including automatically unfair dismissal by reason of his having made protected disclosures contrary to section 103A of the Employment Rights Act 1996 (ERA), direct race discrimination and unauthorised deductions from his wages. By the substantive Judgment the Tribunal held:

(1) That the disclosures relied on by the Claimant were not made in good faith and thus were not protected disclosures.

(2) That his dismissal was by reason of misconduct and was fair under section 98(4) ERA at the time of dismissal for having made an insinuation in bad faith that an assessor, Marcia Malkuszewiski, had failed him on a test by tampering with that test, in circumstances where he was already on a final written warning, unsuccessfully appealed, for making a false and malicious allegation that one Wesley Benjamin had poured a bottle of IMS alcohol over Marsha Brooks.

(3) That his complaints of direct discrimination raise no prima facie case transferring the burden of proof to the Respondent.

(4) That the Respondent claimed that they had incurred costs of £135,000 in successfully defending the claims. The Tribunal reduced that figure by a third to £90,000. They found that the claims of automatically unfair dismissal and race discrimination were misconceived, and attributed half of those costs (£45,000) to defending those claims and then ordered costs of £10,000, notwithstanding that the Claimant was of limited means.

4. The form ET1 in the second claim was lodged on 2 July 2010. It raised complaints of unfair dismissal, sex, race and disability discrimination, together with an equal pay claim. All claims were struck out by the PHR Judgment on the following bases:

(1) The Claimant sought to add the disability claim to the first claim by way of amendment. That application was rejected by Employment Judge Bedeau in the first proceedings on 16 June 2010. That decision has not, so far as I am aware, been the subject of appeal, or at any rate disturbed on appeal.

(2) All claims raised in the second proceedings could and should have been raised in the first proceedings. They arose prior to termination of the employment on 8 June 2009; the rule in Henderson v Henderson [1843] 3 Hare 100 applied.

(3) The new claims of disability discrimination and equal pay were raised, respectively, ten and seven months out of time. There were no grounds for extending time.

(4) There was no medical evidence to support the Claimant’s contention that he was disabled. The equal pay claim was misconceived. His complaint was that he ought to have been graded as a senior technician for the work that he did.”

7. Judge Clark reflects on the process which involved rejection of the appeals by HHJ David Richardson on paper under rule 3(7). Again, at least in respect of the first appeal, on a fresh application, on a fresh Notice of Appeal, Judge Richardson gave the opinion that it had no prospect and so both matters came before Judge Clark. What Judge Clark records in relation to Judgments given in PHRs at the Employment Tribunal is this:

“11. As to the PHR Judgment, it would seem, consistent with Ms Canavan’s submission, that the Claimant is determined to vexate the Respondent in that he is seeking in part to re‑litigate matters that have already been determined. He seeks to litigate matters that ought to have been raised in the earlier proceedings, and raises new disability claims that are unsupported by medical evidence and that are themselves well out of time. In these circumstances, it seems to me that the Tribunal was perfectly entitled to strike out all the claims in case number 3302489/2010.”

The claims were struck out.

8. Judge Clark went on to say the following:

“12. Finally, regarding the costs made following the substantive Judgment, costs remains an exceptional order in the Employment Tribunal; nevertheless, the Tribunal had in mind the discretion accorded by the rules to them to make an order for costs in an appropriate case. From the figures that I have earlier mentioned it is clear that the Respondent has been put to considerable cost in successfully defending the substantive claim. In the event, an order for £10,000 costs was made against a total schedule calculated at £135,000. In all the circumstances of the case, I am satisfied that that order was properly made, and hence that part of the appeal, as with the other parts, fails and is dismissed.”

The procedural history

9. The sequence of events can be summarised as a Judgment against the Claimant on all matters, given in a substantive Judgment of the Smail, three‑person Tribunal over some 10 days with Reasons sent to parties on 13 September 2010. Costs were awarded against the Claimant of £10,000. That provoked an application for review, which the Claimant made in documents extending to 17 pages plus further particulars which were attached to that totalling 25 pages on 26 September 2010. The application was made in accordance with rule 34. The Judge decided the following:

“[…] Employment Judge Smail has asked the Respondent “provide comprehensive comments in respect of the Claimant’s application”.

Please reply by 27 October 2010.”

10. The solicitor responded and effectively deconstructed, comprehensively I hold, the Claimant’s application. At the end of the 10‑page submission is how the Respondent viewed the application as a whole:

“44. The Respondent repeats its serious concern about the level of time and costs the Claimant’s continuing unreasonable and vexatious conduct is causing to it. The Respondent notes that not only was the Claimant wholly unsuccessful in all his claims before the Tribunal, but that he had the maximum award of costs made against him. It also notes that he is currently engaged in providing legal representation to his wife in a manner very similar to the manner in which he conducted these proceedings, and against the same Respondent. Already, following one Pre-Hearing Review in those proceedings, another Tribunal has made an order for costs against the Claimant’s wife. Whilst this may not apparently be strictly relevant to this application to Review, the Respondent submits it is yet further evidence of the unreasonable and vexatious nature and conduct of the Claimant in these proceedings.

45. In all the circumstances, and given the costs the Respondent has had to incur in (unusually) responding to the Claimant’s application for a Review, the Respondent requests the Tribunal make a further order of costs against the Claimant for making a misconceived application and/or for unreasonable and/or vexatious conduct.”

11. The costs schedule was enclosed indicating a total of £3,843.00 plus VAT. That response, application and schedule were faxed to the Claimant himself on 27 October 2010 by the solicitor, Ms Canavan, who said: “If you wish to object to our costs application please inform the Tribunal within seven days”. He did. He responded to Ms Canavan and lodged the same with the Tribunal on 1 November 2010. There is a straightforward joining of issue on the appropriateness of the costs order to be made against him. In the light of the way in which the case had been handled thus far, he returns to his contentions as to the reasons for a review.

12. In my judgement, this is an important summary of the application for a review for in his own words the Claimant says that the Smail Tribunal failed to address the correct legal or statutory questions and to consider significant evidence, and that he had been denied a fair hearing. Now, those are questions of law. They are concisely summarised in this second approach to the Tribunal but they are accurate because I have looked through the application for a review and almost every point the Claimant makes is a question of law. He disagrees with the decisions made by the Smail Tribunal.

13. The matter then came back before Judge Smail and he refused it under rule 35(3). He did so in five pages in a Judgment sent to the parties on 10 January 2011. There is no appeal against the refusal to review.

14. The Judge turned then to the question of costs and he said this:

“6. The Respondent applies for its costs in commenting, as invited by the Tribunal, on the Claimant’s application dated 26 September 2010. It does so on the basis that the Claimant’s application for review is misconceived and unreasonable. That argument, it seems to me, is potentially valid, not least by the sheer scale of the application for review. However, the Tribunal has already ordered £10,000 worth of costs. I am unsure that I have power to order more costs, unless the Respondent is applying for taxed costs, which I do not understand to be the position today.”

15. That provoked a response from Ms Canavan on 24 January 2011 pointing out that according to the Judgment of the EAT in James v Blockbuster Entertainment Ltd UKEAT/0601/05, a Tribunal did have power to make consecutive awards which totalled more than £10,000, provided each one related to a different matter and was within the bracket of £10,000. On that basis the Respondent asked for its application to be considered. This too was sent to the Claimant by fax from Ms Canavan on 24 January 2011 with the same invitation, that is if there were any objections to this, please let the Tribunal know within seven days.

16. On 26 January 2011 he made it clear that he objected to the Respondent’s application for further costs and set out his reasons. These were that the Tribunal Judge had no jurisdiction to deal with the latest costs application. Judge Smail had said he was unsure he had the power and should not, therefore, following a written Judgment and Reasons, be required to look again at the matter.

17. At about the same time, Employment Judge Ryan was dealing with Mrs Purohit’s case and this is relied on by Mr Purohit in today’s proceedings. So notwithstanding his resistance to the Respondent invoking Mrs Purohit, he himself puts her case before me. On 14 January 2011 Judge Ryan refused an application for costs. The application arose when Mr Purohit on behalf of his wife in his wife’s proceedings applied for a review of the adverse Judgment in that case by the Bedeau Tribunal, as to which see the appeals I dealt with above. Judge Ryan said this:

“I refuse the application for costs of commenting on the application for a review. An application for a review does not, in the first instance, as here, require a comment. There is no basis for requiring the Claimant to pay the costs of such a comment in any event.”

18. Now, with some force, Mr Purohit says there are two judges in Watford operating on different bases, but Mr De Marco points out - and Mr Purohit does not reply - that Judge Ryan did not invite representations to be made by the Respondent before he had made his decision under rule 35(3) in Mrs Purohit’s case. So the Respondent was a volunteer, it asked for costs and it was refused. Indeed, Mr De Marco goes further. He says the judge was right; notwithstanding his client had applied for costs and had been refused, the judge was right to refuse costs in those circumstances where the submissions had been volunteered without an invitation or an order. So Judge Ryan’s decision goes no further.

19. When the matter came before HHJ Richardson on the sift, large parts of the extensive Notice of Appeal were rejected, but three were ordered to go forward, together with a request to Employment Judge Smail to comment on one of the issues that had arisen. This was to do with what I will describe as the notice point. The Judge said this:

“3. Prior to the making of the costs order I did have the Appellant’s faxed submission dated 26 January 2011 on whether to make a further order for costs. The Appellant had plainly been copied into correspondence by the Respondent. A copy of the Appellant’s submissions is attached. Accordingly, there was no need to send out a notice under Rule 38(9) because the Appellant’s submissions were sent in anyway.

4. I explain in the Reasons for the Judgment dated 17 February 2011 the reason for inviting the Respondent to comment on the Appellant’s Review application of the original judgment and costs order. This was to help me deal with the scale of the Review application, 62 paragraphs over 17 pages. I wanted the Respondent’s comments so that I could be assisted in evaluating whether there were any arguable points raised by the Appellant making it worth ordering a Review Hearing.”

The Judgment appealed

20. The vehicle for today’s appeal, therefore, is the very short Judgment which Employment Judge Smail gave in relation to costs. He said the following:

“1. By letter received on 26 September 2010 the Claimant made an application for review of the judgment sent to the parties on 13 September 2010. Rule 35(3) of the Employment Tribunal Rules 2004 provides for preliminary consideration of an application for review without the need to hold a hearing. The application is to be rejected if it is considered that there are no grounds within Rule 35(3) for a review or if there is no reasonable prospect of the judgment being revoked or varied. The basis of the review application was set out in the Claimant’s emailed letter of 26 September 2010. The letter consists of 62 paragraphs stretching over 17 pages. By virtue of the scale of the letter I forwarded it to the Respondent for comments. They responded on 27 October 2010.

2. The Respondent applies for its costs in commenting, as invited by the Tribunal, on the Claimant’s application dated 26 September 2010. It does so on the basis that the Claimant’s application for review was misconceived and unreasonable within the meaning of Rule 40(3) of the 2004 Rules. I agree that the Claimant’s application was misconceived and unreasonable. I rejected the Claimant’s application in my Judgment dated 10 January 2011. No arguable review point was identified. The sheer scale of the application was oppressive on both the Tribunal and the Respondent having to comment on it.

3. I have had the parties’ submissions on costs in writing. I am satisfied that by reason of the decision in James v Blockbuster Entertainment Ltd UKEAT/0601/05/DM that I have power to award multiple costs orders up to £10,000 on each occasion. £10,000 has already been ordered at the conclusion of the Full Merits Hearing.”

The legislation

21. The relevant provisions of the legislation begin with the overriding objective under regulation 3, which is to ensure that matters are dealt with expeditiously. Rule 10(1) gives a very wide, general power for a Judge in relation to any matter which appears to him to be appropriate to make any order. Examples of such orders which he/she may make are contained in rule 10(2) and they include orders as to the manner in which the proceedings are to be conducted; that a party should provide additional information; and that written answers should be provided to questions put by the Judge (see rules 10(2)(a), 10(2)(b) and 10(2)(f)).

22. Notice of any application is regulated by rule 11 and, as in this case, where a party is legally represented rule 11(4) is applicable:

“11(4) When a party is legally represented in relation to the application (except where the application is for a witness order described in Rule 10(2)(c) only), that party or his representative must, at the same time as the application is sent to the Employment Tribunal Office, provide all other parties with the following information in writing –

(a) details of the application and the reasons why it is sought;

(b) notification that any objection to the application must be sent to the Employment Tribunal Office within 7 days of receiving the application, or before the date of the hearing (whichever date is the earlier);

and the party or his representative must confirm in writing to the Employment Tribunal Office that this rule has been complied with.”

23. Rule 34(3) sets out the grounds upon which a review may be ordered, and rule 35(3) provides for a preliminary consideration:

“35(3) The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the Tribunal which made the decision …

and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under Rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.”

As is clear, there is no objection to there being a hearing and there is no restriction on the way it is disposed of. If not, then it must go to a review: see rule 36(1):

“The review

36(1) When a party has applied for a review and the application has not been refused after the preliminary consideration above, the decision shall be reviewed by the chairman or Tribunal who made the original decision…”

24. Dealing specifically with costs, an application may be made by a party under rule 38 at any stage of the proceedings. A notice requirement is provided by rule 38(9):

“38(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.”

25. Costs orders may be made where a party has in the proceedings behaved unreasonably; or taken a step which is misconceived. The amount is for the Tribunal to decide. It may have regard to means of the paying party. No issue arises in this case as to that.

Discussion and conclusions

26. The first point the Claimant makes is that he was given no notice by the Secretary of the application of the Respondent, contrary to rule 38(9). It is true; he was not given notice by the Secretary. Mr De Marco argues that he was given notice by solicitors for the Respondent in accordance with rule 11, whose duty it is to provide such material. He also argues that the purpose of the notice provision under rule 38(9) is to ensure that an opportunity is given to the Claimant to respond to the costs application. In my judgement, this is a very technical failing. The Judge knew that the Claimant had received the application for costs made by the Respondent and its further application based on his judgment and the Judge had, in fact, the Claimant’s three responses on the subject of costs. So although the Secretary did not provide it, the Claimant had it.

27. The default position in rule 38(9) is that a notice need not be sent by the Secretary if the paying party has been given an opportunity orally to make submission. The obvious case is where at the end of a hearing an oral application is made by a party and it is accompanied by a schedule, and these days would have been preceded by a warning, but in any event there is an opportunity for the paying party to be able to make submissions. The purpose is to ensure the right to be heard. In my judgement it has been achieved in this case. The communication by fax from Ms Canavan of the applications and of the Judge’s Judgment are sufficient notice. In any event, the response of the Judge in his first Judgment, indicating he was unsure as to the matters, gives him notice too. So there is no error; there is certainly no prejudice to the Claimant and since this is a matter relating to the discretionary powers, the absence of prejudice is important. The whole point is the Claimant did, very substantially, respond three times on costs.

28. The second issue which he argues is that there is no power under rule 35(3) to have the Respondent’s intervention. I do not agree. Even if this is a proper ground of appeal, it has been answered by Mr De Marco. Nothing prescribes the way in which the preliminary consideration by the Judge under rule 35(3) is to be conducted. In this case the Judge decided that in the light of the prolix application made to him he needed the Respondent’s input. That was a matter for him; a matter of discretion. He did not use expressly the power under rule 10 but he had it - to conduct the proceedings in a way which involved the Respondent and he called for further information from it in respect of the application for review. The Respondent could not sit idly by, as Mr De Marco says with some force, given a request by the Judge to provide comprehensive comments. It would, of course, be put to further costs if the review had been accepted and I see no criticism of either the Judge for seeking or the Respondent for responding so comprehensively to this application for a review. It takes some time to go through and I can see the Judge was assisted by Mr De Marco’s written submissions.

29. The next issue is whether the costs part of it should have been the subject of further notices and orders. An award of costs can be made at any stage of the proceedings, as the rule makes clear. Provided the notice requirement, as I have described it, is met there can be no objection to the award of costs at the preliminary consideration of a review. Whether or not the Judge was right to seek submission is a matter of discretion.

30. In this case Mr De Marco argues, and I accept, that the Claimant is alleging perversity. That standard is high for a successful appeal (see Yeboah v Crofton [2002] IRLR 634). The Judge did not award the whole of the amount, in fact only slightly more than half. He considered a proportionate approach and it was open to him to make the award in the circumstances that he did. He had looked at the background - no one was in a better position than he having tried the case - and he looked at the reasonableness of the application itself. Mr Purohit says it is his constitutional right to make an application for review. Indeed, the Judge said to him at the end of the Judgment matters may be raised by appeal or review, but that does not affect the substance. The Judge was entitled to take the view that the review application was misconceived or part of unreasonable conduct. That was a matter for him.

31. Since there is no appeal against the review refusal itself, it is not necessary for me to add my view. But as I said earlier since I have looked with care at this, it does seem to me to raise matters which, if at all, are matters for appeal rather than review, and we know that that has indeed happened and failed at this Appeal Tribunal.

32. So, in those circumstances there is no error in the award of costs on the review application. The appeal is dismissed.

Review

33. An oral application for a review of my Judgment has been made by Mr Purohit. Applications are granted very sparingly in this jurisdiction. He complains that I have interpreted the Employment Tribunal Regulations. So I have, that is why I am appointed here: to apply and interpret the rules. This is not a ground for review in this jurisdiction. As to my failure to allude to rule 36(2) of the ET Rules, this is wholly misconceived since it deals with a case where there is no application. The application for review is dismissed.

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