THE INDUSTRIAL TRIBUNALS

CASE REF:  01928/07

CLAIMANT:			Gillian Holdsworth

RESPONDENT:		Right Price Carpets & Furniture Ltd

DECISION ON COSTS
The unanimous decision of the tribunal is that the respondent is ordered to pay costs to the claimant in the sum of £7,475.00 inclusive of VAT.

Constitution of tribunal:
Chairman:		Mr P Kinney
Members:		Dr Ackah
			Mr Hughes

Appearances:
The claimant was represented by Mr Mulqueen, BL, instructed by Worthingtons Solicitors
The respondent was represented by Mr Randall of Peninsula Business Services

1.	The tribunal issued a decision in this matter on 19 December 2008.  The tribunal decided that the claimant had been unfairly dismissed and that the respondent had discriminated against the claimant both for a reason relating to her disability and by failure of the respondent to make reasonable adjustments contrary to the Disability Discrimination Act 1995.

2.	The claimant now seeks costs under Rule 40(2) and (3) of the Industrial Tribunals Rules of Procedure 2005.  The relevant provisions relating to costs orders are found in Rules 40 and 41 of the Industrial Tribunals Rules of Procedure 2005.  They state as follows:

40.	– 
(1)	A tribunal or chairman may make a costs order when on the application of a party it or he has postponed the day or time fixed for or adjourned a hearing under rule 26 or pre-hearing review. The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.
(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.
The amount of a costs order
41.  – 
(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.

Submissions

3.	Mr Mulqueen submitted that the tribunal has a wide discretion to award costs.  In this case the tribunal had made findings of fact which demonstrated that the respondent’s case was misconceived, ie, there was no reasonable prospect of success.  He pointed in particular to:

(a)	The absence of evidence from Lisa Pollock and Raymond Pollock.

(b)	The tribunal finding at paragraph 50 of their decision that the medical capability procedure was flawed, and later in the decision it was described as a sham.

4.	Mr Mulqueen submitted there was no defence to the case for unfair dismissal.  Similarly there was no justification for the respondent’s failure in their duty to make reasonable adjustments nor any defence or reason for the disability related discrimination.  He contended that there was no reasonable defence to the claimant’s claims.  The tribunal did not accept significant portions of the respondent’s evidence.  He submitted that the respondent’s actions were malicious and vexatious and pointed in particular to the conduct of Lisa Pollock.  Mr Mulqueen said that the bringing and conducting of proceedings by the respondent was misconceived.  There was no reasonable prospect of success.  The conduct of the respondent in conducting the hearing was unacceptable and unreasonable.  Late discovery was made of matters crucial to the case and the claimant had to be recalled to deal with parts of the respondent’s case not put to her despite warnings given at the time.

5.	Mr Mulqueen submitted a detailed breakdown of the costs which were sought by the claimant.  The detailed bill of costs provided by the claimant’s solicitors including Counsel’s fee and VAT came to £12,395.49.  A further £1,593.85 was sought in relation to this costs application, making a total of £13,989.34.  Mr Mulqueen did not seek an assessment in the County Court under Rule 41(1)(c).  He confined his application to the sum of £10,000 being the maximum the tribunal can award under Rule 41(1)(a).

6.	Mr Randall for the respondent submitted that its defence was not misconceived.  A procedure had been carried out by the respondent which the tribunal, on the evidence before it, found to be inadequate.

7.	A decision was made not to call Lisa Pollock.  However, a witness statement had been provided and her evidence concerned a claim that the claimant only withdrew at hearing.  She wasn’t called and the respondent suffered accordingly. 

8.	Raymond Pollock was only involved in the appeal hearing which was not an issue determinative of the case.  

9.	Mr Randall conceded that with hindsight one could say the defence was misconceived, but that was not how it appeared to the respondent at the time.  He referred to the case of E T Marler v Robertson [1974] ICR 72.  There is a danger in assessing a case with hindsight.  In that case the NIRC said:

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

10.	Ryan Pollock considered that he could give all the evidence that was required in the case.  The tribunal did not accept that.  However that was the function of the tribunal.  The respondent felt that it had taken reasonable steps.

11.	Mr Randall submitted that the case would have in any event proceeded on remedy and quantum.  This case did not settle.  The schedule of loss provided by the claimant needed to be proved and was for more than the case was ultimately worth.  The claimant only withdrew certain claims at hearing and only withdrew her request for reinstatement at the hearing.  

Mr Randall submitted that costs are the exception rather than the rule in tribunal proceedings.  Although he accepted that there is nothing in the legislation to that effect that is the stance taken in the authorities.  He referred to the case of Gee v Shell (UK) Ltd [2003] IRLR 82.

12.	Mr Randall submitted that the respondent’s defence was not misconceived.  The case needed to be argued.  Mr Randall accepted that there had been difficulties at hearing.  The late identification of comparators and the discovery of related documents only came out in the evidence of Mr Ryan Pollock.  This was unfortunate but sometimes matters only arise from the evidence.  Mr Randall contended there was not a strong enough basis for the tribunal to exercise its discretion and order costs.  Liability in the case may be obvious now with hindsight but it was not obvious at the time.  In any event, remedy remained an issue and much of the evidence was necessary to consideration of both liability and remedy.

Tribunal’s conclusions

13.	In considering an application for costs, the tribunal must first be satisfied as to the grounds for making such an order and then whether it is appropriate to exercise its discretion to award costs.  

14.	The purpose of an award is to compensate the claimant, not to punish the respondent.  When making a costs order on the grounds of unreasonable conduct, any costs awarded need not be causally linked to the costs incurred as a result of a conduct that has been identified as unreasonable.  In McPherson v BNP Paribas [London Branch] [2004] ICR 1398 Mummery LJ stated:

“The principle 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 BNP Paribas to prove that specific unreasonable conduct by the applicant caused particular costs to be incurred”.

15.	The question of whether or not the respondent behaved unreasonably is dependent on the facts of an individual case.  There is no hard and fast principle applicable to every situation.  Reasonableness is to be given its ordinary meaning. 

16.	In this case should the respondent have known or to be taken as known that proceeding with the case was unreasonable?  In Cartiers Superfoods Ltd v Laws [1978] IRLR 315, the EAT considered whether the party had acted frivolously under the rules then in force.  Philips J said that to determine whether a party 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”.

17.	The tribunal is mindful also of the caution it should exercise in examining a case with the benefit of hindsight.  However, in this case the tribunal concludes that the respondent did behave unreasonably in the conduct of proceedings for the following reasons:

(a)	There was a failure by the respondent to identify appropriate comparators and to disclose documents to the claimant.  The existence of the comparators was known to the respondent and any sensible and reasonable enquiry, should the respondent have “gone about the matter sensibly” would have revealed both the existence of the comparators and the absence of any credible reason for the more favourable treatment afforded to them.  This was only addressed by the respondent in the middle of the hearing during the cross-examination of Ryan Pollock and necessitated an adjournment of the hearing to allow the information to be brought before the tribunal.

(b)	The manner in which the hearing was conducted:

(i)	It was clear to the tribunal that Lisa Pollock could provide relevant evidence but she was not called to do so despite being present at the tribunal;

(ii)	There were considerable delays in proceedings occasioned by the manner in which the respondent’s case was put forward, which necessitated the recall of the claimant to be cross-examined and to several delays and breaks in proceedings.

18.	Having reached this conclusion, the tribunal must now consider its discretion to award costs.  The tribunal has taken into account the respondent’s ability to pay costs.  At the hearing of this matter, Ryan Pollock described the respondent as a large company with a turnover in excess of £4 million per annum and employing 36 employees.

19.	The claimant has provided a detailed breakdown of costs to the tribunal.

20.	The tribunal is satisfied that it is appropriate to make an award of costs to the claimant.  However in arriving at the appropriate figure, the tribunal also took into account that a hearing for remedy would, on the balance of probabilities, have been required in any event.  The tribunal also took into account the fact that the claimant only withdrew claims for unlawful deductions from wages, breach of contract and failure of the respondent to follow the statutory disciplinary procedure after the commencement of the substantive hearing, and that she also only confirmed that she no longer sought reinstatement by way of remedy at the hearing. 

21.	In light of these matters, bearing in mind the detailed breakdown of costs provided, the tribunal determines that the appropriate figure for an award of costs is £6,500 plus VAT making a total of £7,475.00.

Chairman:

Date and place of hearing:	3 March 2009, Belfast.

Date decision recorded in register and issued to parties: