THE FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   423/04 FET
202/05 FET

CLAIMANT:			James Ian Wilkinson

RESPONDENT:		Belfast City Council

DECISION

The unanimous decision of the Tribunal is that both the claimant’s claim in respect of additional costs and the respondent’s claim for costs are refused. 

Constitution of Tribunal:

Chairman:		Mr I Wimpress

Members:		Mr Margrain
Mr Collins

Appearances:

The claimant was unrepresented and appeared on his own behalf.

The respondent was represented by Mr Patrick Ferrity, Barrister-at-Law, instructed by the Director of Legal Services, Belfast City Council.

1.		The tribunal dismissed the claimant’s claims of discrimination and victimisation in a written decision which was issued on 27 April 2007.  The tribunal did however award the claimant £200.00 in respect of costs on the basis of unreasonable delay by the respondent in producing a document by way of discovery. The claimant subsequently wrote to the tribunal seeking an additional award of costs.  The claimant estimated that twenty five additional hours work was involved which at £25 per hour produced a total of £625.  The respondent also wrote to the tribunal and sought an order for costs against the claimant. 

2.	In our consideration of the respective submissions in relation to costs, we have had regard to the rules contained in the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Rules”) which insofar as relevant are as follows:

   9 (1) 	Subject to the following rules, the chairman may at any time either on the  application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing.

    (2)	Examples of orders which may be made under paragraph (1) are Orders –

(a)	as to the manner in which the proceedings are to be conducted, including any time limit to be observed;

(b)	that a party provide additional information

(d)	requiring any person in Northern Ireland to disclose documents or information to a party or to allow a party to inspect such material as might be ordered by a county court;

(e)	extending any time limit, whether or not expired (subject to Rules 4(5), 10(2), 21(5), 26(5), 29(1), 31(1), 34(7), 37(5) and 42(9));

(r)	that a witness statement be prepared or exchanged; 

  (3)	An order may specify the time at or within which and the place at which any act is required to be done. An order may also impose conditions and it shall inform the parties of the potential consequences of                    non-compliance set out in Rule 12.

  (4)	When a requirement has been imposed under paragraph (1) the person subject to the requirement may make an application under Rule 10 (applications in proceedings) for the order to be varied or revoked.

  (5)	An order described in paragraph (2)(d) which requires a person other than a party to grant discovery or inspection of material may be made only when the discovery sought is necessary in order to dispose fairly of the claim or to save expense.

 (6)	Any order containing a requirement described in paragraph (2)(c) or (d) shall state that under Article 84(9) and (10) of the Fair Employment and Treatment Order, any person who without reasonable excuse fails to comply with the requirement shall be liable on summary conviction to a fine and, if without reasonable excuse the failure continues after conviction, shall be liable on a second or subsequent summary conviction to a fine for each day on which the failure continues and the document shall also state the amounts of the current maximum fines.

 (7)	An order as described in paragraph (2)(i) may be made only if all relevant parties have been given notice that such an order may be made and they have been given the opportunity to make oral or written representations as to why such an order should or should not be made.

(8)	Any order made under this rule shall be recorded in writing and signed by the chairman and the Secretary shall inform all parties to the proceedings of any order made as soon as is reasonably practicable.

   12 (1)	If a party does not comply with an order made under these Rules or a practice direction, a chairman or Tribunal -

(a)	may make an order in respect of costs or preparation time under Rules 34 to 41; or

(b)	may (subject to paragraph (2) and Rule 18) at a pre-hearing review or a hearing  under Rule 22 make an order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, order that a respondent be debarred from responding to the claim altogether.

   (2)	          An order may also provide that unless the order is complied with the claim 
                    or, as the case may be, the response shall be struck out on the date of 
                    non-compliance without further consideration of the proceedings or the 
                    need to give notice under Rule 18 or hold a pre-hearing review or hearing 
                    under Rule 22.

             (3)	         …

         34 (1)	         Subject to paragraph (2) and in the circumstances listed in Rules 35 and    
             	         41 a tribunal or chairman may make an order ("a costs order") that –

(a)	a party ("the paying party") make a payment in respect of the costs incurred by another party ("the receiving party");

(b)	the paying party pay to the Department, in whole or in part, any allowances paid by the Department to any person for the purposes of, or in connection with, that person's attendance at the tribunal.

           (2)	       A costs order may be made under Rules 35 and 41 only where the 
receiving party has been legally represented at the hearing under Rule 22 
or, in proceedings which are determined without such hearing, if the 
receiving party is legally represented when the proceedings are determined. 
If the receiving party has not been so legally represented a tribunal or 
chairman may make a preparation time order (subject to Rules 37 to 39). 
(See Rule 40 on the restriction on making a costs order and a preparation 
time order in the same proceedings.)

          (3)	        For the purposes of these Rules "costs" shall mean fees, charges or 
       disbursements incurred by or on behalf of a party in relation to the 
       proceedings.
 
         (4) 	       …

         (5)	             …

         (6)	       …

  (7)	      A 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 the 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.

       (8)	      In paragraph (7), the date of issuing of the decision determining the claim 
                            shall be either -

(a)	the date of the hearing under Rule 22 if the decision was        issued orally; or
(b)	if the decision was reserved, the date on which the written decision was sent to the parties.
        (9)	       …

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

    35 (1)	      … 	

   (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.

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

     36 (1)	The amount of a costs order against the 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.

 37 (1)		Subject to paragraph (2) and in the circumstances described in Rules 38 and 41 
a tribunal or chairman may make an order ("a preparation time order") that a 
party ("the paying party") make a payment in respect of the preparation time of 
another party ("the receiving party").

       (2) 	A preparation time order may be made under Rules 38 or 41 only where the 
receiving party has not been legally represented at a hearing under Rule 22 or, 
in proceedings which are determined without such hearing, if the receiving party 
has not been legally represented when the proceedings are determined. (See: 
Rules 34 to 36 on when a costs order may be made; Rule 34(5) for the definition 
of legally represented; and Rule 40 on the restriction on making a costs order 
and a preparation time order in the same proceedings.)

       (3)	For the purposes of these Rules preparation time shall mean time spent by -
 
(a)	the receiving party or his employees carrying out preparatory work directly relating to the proceedings; and

(b)	the receiving party's legal or other advisers relating to the conduct of the proceedings,

up to but not including time spent at any hearing under Rule 22.

        (4)	A preparation time order may be made against a respondent who has not had a 
response accepted in the proceedings in relation to the conduct of any part 
which he has taken in the proceedings.

(5)	A party may apply to the tribunal for a preparation time 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 Secretary. An application for preparation time which is received by the Office of the Tribunals later than 28 days from the issuing of the decision determining the 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.

(6)	In paragraph (5) the date of issuing of the decision determining the claim shall be either -

(a)	the date of the hearing under Rule 22 if the decision was issued orally; or

(b)	if the decision was reserved, the date on which the written decision was sent to the parties.

        (7)	No preparation time 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.

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

   38 (1) 	…

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

        (3)       The circumstances described 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.

        (4)	      A tribunal or chairman may make a preparation time order against a party who   
        has not complied with an order or practice direction.

   39 (1)	In order to calculate the amount of preparation time the tribunal or chairman 
shall make an assessment of the number of hours spent on preparation time on 
the basis of –

(a)	information on time spent provided by the receiving party; and

(b)	the tribunal or chairman's own assessment of what it or he considers to be a reasonable and proportionate amount of time to spend on such preparatory work and with reference to, for example, matters such as the complexity of the proceedings, the number of witnesses and documentation required.

        (2)	Once the tribunal or chairman has assessed the number of hours spent on 
preparation time in accordance with paragraph (1), it or he shall calculate the 
amount of the award to be paid to the receiving party by applying an hourly rate 
of £25·00 to that figure (or such other figure calculated in accordance with 
paragraph (4)). No preparation time order made under these Rules may exceed 
the sum of £10,000.

       (3)	The tribunal or chairman may have regard to the paying party's ability to pay 
when considering whether it or he shall make a preparation time order or how 
much that Order should be.

       (4)	For the year commencing on 6 April 2006, the hourly rate of £25·00 shall be 
increased by the sum of £1.00 and for each subsequent year commencing on 6 
April, the hourly rate for the previous year shall also be increased by the sum of 
£1·00. 

3.	Before embarking on our consideration of the respective claims for costs, we remind ourselves that despite the now extensive provisions in relation to costs tribunals remain largely a costs 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 caselaw in this area.  We also bear in mind that a 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.  We will examine each party’s application for costs in turn.

	The claimant’s claim for costs

4.         423/04 FET

In his submission to the tribunal the claimant sought preparation time costs in respect of preparation time costs on the basis that the respondent acted disruptively and /or unreasonably in a number of respects which may be summarised as follows:-

(i)  Delay in replying to statutory questionnaire and failure to provide complete information.

	(ii)    Failure to comply fully with Order for Discovery dated 27 May 2005.

	(iii)    Delay in the grievance process.

	(iv)    Failure to provide documentation in relation to grievance process. 

	(v)    The manner in which the respondent dealt with requests for e-mails.

	(vi)    The manner in which the respondent dealt with other requests for information.

	(vii)    A threat made by the respondent in respect of costs.

(viii)    Failure to comply in a timely fashion with orders made by the tribunal in respect of the exchange of witness statements, failure to agree a bundle for the hearing and the production of the respondent’s bundle just three days in advance of the hearing.

      	The claimant also complained that a case relied upon by the respondent in its written  
submissions was quoted out of context.  In addition the claimant sought to rely upon events that occurred after the hearing of these proceedings and which relate to a separate claim brought by the claimant against the respondent.   We do not consider that this has any bearing on the application for costs made in respect of the present proceedings.

5.	   	Mr Ferrity, on behalf of the respondent drew attention to the claimant’s submissions in relation to costs at the main hearing which focussed on the respondent’s delay in producing an email sent by Mr Wright to Mr Smith and submitted that we should not award the claimant any further costs.   In relation to the alleged non-compliance with the order for discovery, Mr Ferrity submitted that the claimant had pursued discovery with considerable vigour and that discovery had become an end in itself.   Mr Ferrity submitted that we should not award costs in simply because the order had not been complied with to the claimant’s complete satisfaction.
	
6. 		Having given careful consideration the parties’ submissions, we do not consider that it 
would be appropriate to make any further award of costs to the claimant in relation to this claim.  

7.	202/05 FET

The claimant did not identify any discrete basis for his application for costs in respect of this claim although it is apparent that there is a degree of common ground between the two claims particularly in relation to the matters referred to at paragraph 4 (iii), (iv), (vi), (vii) and (viii) and we will examine each of these in turn.  Mr Ferrity sought to resist the claimant’s application for costs in relation to this claim on broadly similar grounds to the first claim.  

8.	Delay in grievance process.

As we are only concerned with preparation time costs in respect of these proceedings, we have no jurisdiction to consider costs incurred by the claimant in pursuing his grievance.

9.	Failure to provide documentation in relation to grievance process. 

Although there was some delay by the respondent in providing this documentation, we are satisfied that Ms Murtagh was genuinely and reasonably uncertain as to its relevance and we are not therefore prepared to make any award of costs in respect of same.

10.	The manner in which the respondent dealt with other requests for information.

While we are satisfied that there was some delay by the respondent in providing the information sought and responding to correspondence, we are not satisfied that it would warrant an award of costs.  It is clear from the evidence that Ms Murtagh has a heavy caseload and that this was a particularly demanding case.  While we appreciate that the claimant may have found some of the delays frustrating, we do not believe that an award of costs would be justified.

11.	A threat made by the respondent in respect of costs.

We do not believe that the correspondence between Ms Murtagh and the claimant provides any basis for an award of costs.

12.	Failure to comply in a timely fashion with orders made by the tribunal in respect of the exchange of witness statements, failure to agree a bundle for the hearing and the production of the respondent’s bundle just three days in advance of the hearing.

The matters in respect of which the claimant complains arise from an order made by the Tribunal at a Case Management Conference (‘CMD’) on 21 April 2005.   The order required the respondent to provide witness statements by 25 May 2006.  Ms Murtagh provided four statements on that date all of which were unsigned.  These remained unsigned by the date on which the claimant was ordered to produce his supplementary statement namely 8 June 2006. The claimant did however receive the signed statements under cover of a letter dated 8 June 2006.  The claimant suggested that the reason for holding back the signed statements was to enable the witnesses to change their statements in the light of the claimant’s supplementary statement.  While we are satisfied that the respondent failed to produce its signed witness statements within the time stipulated,  we do not accept the claimant’s suggestion that there was some sort of subterfuge in play with regard to the provision of signed statements.  There is no evidence before us that any statements were changed in this manner and we simply do not believe that this was a ploy designed to provide the witnesses with this opportunity.  Moreover, we would expect a party to provide an unsigned statement if it was anticipated that there might be a difficulty in having it signed and served within time.

We are therefore not persuaded that it would be appropriate to make any additional award of costs to the claimant under Rule 38.

The respondent’s claim for costs

13.	Mr Ferrity advanced the respondent’s claim for costs Mr Ferrity on the basis that the claims brought by the claimant were vexatious, misconceived and unreasonable.

14.	In relation to the vexatious heading, Mr Ferrity drew attention to the description of this type of conduct made by Sir Hugh Griffiths in E T Marler v Robertson [1974] ICR, NIRC 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 acts vexatiously and likewise abuses the procedure.  In such cases the Tribunal may and doubtless usually will award costs against the employee…” 

	Mr Ferrity also cited by way of example the award of costs made in the case of Keskar v Governors of All Saints of England School [1991] ICR 493, EAT where costs were awarded against a claimant in a discrimination case on the basis that he was ‘motivated by resentment and spite in bringing the proceedings’ and that there was ‘virtually nothing to support his allegations of race discrimination’.   This case is referred to in Harvey [1044] as an instance of vexatious conduct which the tribunal in fact labelled as unreasonable conduct notwithstanding the finding of an improper motive.

15.	Mr Ferrity pointed out that ‘misconceived’ is defined as including ‘having no reasonable prospect of success’ and drew attention to Scott Baker J’s comments in Gee v Shell (UK) Ltd [2003] IRLR 62 that the new rules ‘lowered the threshold’.  This must be read in the context of our Rules which are worded in terms of ‘the bringing or conducting of the proceedings by the paying party has been misconceived’.

16.	Mr Ferrity also drew attention to the remarks of Phillips J in Cartiers Superfoods Ltd v Laws [1078] IRLR 315, EAT where the judge considered that in order to determine whether a party had acted frivolously it was necessary ‘to look and see what that party knew or ought to have known if he had gone about the matter sensibly’.  On this basis Mr Ferrity contended that the claimant ought to have known that there was nothing to support his case. 

17.	Mr Ferrity also sought to rely on the tribunal’s reasoning and in particular our finding in respect of each of the incidents complained of that applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.  Mr Ferrity placed reliance on these findings as demonstrating that the claimant had failed to establish a prima facie case in respect of any of the incidents.    Mr Ferrity also sought to rely on a number of passages that appear at paragraphs 35 to 40 of our decision as providing evidence that the claimant did not genuinely believe that he had been discriminated against or victimised on the ground of his religion and that his claims were without foundation.  In particular, Mr Ferrity noted the lack of support of the claimant’s witnesses in respect of the allegation of discrimination made against Mr Smith and the absence of any properly identified comparators.  In addition, Mr Ferrity sought to rely on our decision that the claim in relation to Incidents 1 to 7 was out of time. 

18.	In terms of quantum, the respondent provided the tribunal with a draft bill of costs in respect of all work done in connection with the proceedings from 26 October 2004 to 27 June 2007 which totalled £53,238.31 inclusive of counsel’s fee.

19.	The claimant sought to resist the application for costs in relation to Claim No 423/04 FET on the basis that the tribunal’s findings in relation to Incidents 5, 8 and 9 were adverse to the respondent and demonstrated that there was a case to answer in relation to his unfair treatment.  In relation to Claim No. 202/05 FET, the claimant pointed out that the tribunal’s factual conclusions in relation to the same incidents were at variance with the findings of the officers who investigated his grievance.  The claimant also placed reliance on his correspondence with the Equality Commission in relation to financial assistance and believed that his claim would succeed on the basis of the Equality Commission’s statement that it was supporting many similar cases.  The claimant also drew attention to Ms Murtagh’s failure to follow up her letter of 15 February 2006 with reasons as showing that she did not genuinely believe that the claimant’s case had no prospect of success.  The claimant also drew encouragement from a remark made by me towards the end of the hearing that in the event of the claimant succeeding, a further hearing would be necessary to deal with remedies.

20.	With regard to ability to pay, the claimant pointed out that there had been a significant drop in his income due to his ill-health retirement.

21.	Finally, the claimant submitted that the award of costs should be an exceptional occurrence and drew attention to the considerable amount of work that he had put into the case, his full co-operation with the respondent’s requests for information and the deterrent effect of making such an order.

22.	In E T Marler v Robertson [1974] ICR, NIRC, Sir Hugh Griffiths stated ‘Ordinary experience of life frequently teaches us that which 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’.  This is not such a case as neither party appears to have moved from entrenched positions and both sides clearly believe in the rightness of their cause.  Nor are we faced with the type of situation that in Beynon v Scadden [1999] IRLR 700, EAT caused Lindsay J to observe:

‘A party who despite having had an apparently conclusive opposition to his case made plain to him, persists with the case down to the hearing in the “Micawberish” hope that something might turn up and yet does not even take such steps open to him to see whether anything is likely to turn up, runs a risk, when nothing does turn up, that he will be regarded as having been at least unreasonable in the conduct of his litigation.’

We do not regard the claimant’s case in this light or as such a case.

23.	As appears from our decision we were firmly of the view that the claimant was not subjected to unlawful discrimination or victimisation.  This does not mean, however, that the respondent is entitled to costs as it is only if the claimant’s behaviour falls within Rule 35(3) that the question of costs arises.  Having given the matter careful consideration, we are not satisfied that the claimant’s bringing or conducting of the proceedings was vexatious, unreasonable or misconceived and we therefore refuse the respondent’s application for costs.

Chairman:

Date and place of hearing:	28 June 2007, Belfast

Date decision recorded in register and issued to parties: