Appeal No. UKEATPA/0559/11/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 October 2011

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR H BOUHENICHE	APPELLANT

SECRETARY OF STATE FOR WORK AND PENSIONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION – APPELLANT ONLY

APPEARANCES

For the Appellant	Written Submissions

	

SUMMARY

PRACTICE AND PROCEDURE - Costs

The Claimant asserted he had lodged a statutory grievance but he never had and did not so inform his representative.  His claim of per-employment race discrimination was struck out.  An Employment Tribunal went on to find in his favour in respect of later events.  The EAT would not interfere with the discretion of the Employment Judge in awarding a contribution (£2000) to the Respondent’s costs. 

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about costs.  I will refer to the parties as the Claimant and the Respondent.  My approach to this case is regulated by my Judgment in Haritaki v South East England Development Agency [2008] IRLR 945 at paragraphs 1 to 13, which should be read with this Judgment.  That approach was approved by the Court of Appeal in Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240.

2.	There has been pre-hearing correspondence in which the Claimant changed his view about whether he wished the hearing to go ahead or to make written submissions for it.  Those matters have been decided in advance of today and this is a hearing at which I consider the Claimant’s written submissions.  They are before me, in a number of letters and his Notice of Appeal.

Introduction
3.	It is an appeal by the Claimant in those proceedings against an order of Employment Judge Malone at a costs hearing, sent to parties on 10 March 2011.  The Claimant represented himself and the Respondent was represented by counsel.  There is a very significant, substantial and procedural background to this application today.

4.	The Claimant made claims against the Respondent and he succeeded in certain respects and was awarded compensation of £7,000 for race discrimination.  The award in his favour was made in Reasons sent to the parties on 1 October 2010 in a Judgment of an Employment Tribunal chaired by Employment Judge Garnon. His claim of unlawful discrimination on racial grounds was well-founded, and the orders are these:

“1.	The claim of unlawful discrimination on racial grounds is well founded.  We award compensation of £7053.94 and interest of £105.81
2.	The claim of breach of contract is well founded.  We award damages of £90.34 gross of tax and National Insurance.
3.	The costs application reserved by Employment Judge Malone is to be referred back to him in accordance with the case management orders given at the end of the reasons.”

5.	A number of his claims were struck out.  He had made claims against Ms Hailes and against the Department. The Judgment given by Judge Malone on 3 June 2010 reveals a dysfunctional relationship between the Claimant and his one time representative, and contains the suggestion that there should be costs. So the costs issue was left open and determined against the Claimant.

6.	The Claimant appealed against the order that he should pay £2,000.  The matter came on the sift before HHJ David Richardson who formed this opinion:

“This appeal is concerned with an order for costs made against the Claimant dated 10 March 2011 which followed upon a much earlier judgment dated 10 May 2010 partially striking out his claim.
At one point the Notice of Appeal complains about the earlier judgment partially striking out his claim.  It is, however, now far too late to appeal that judgment.  I am concerned only with the order for costs.
There is only an appeal to the Employment Appeal Tribunal if a question of law arises.  The Employment Judge applied correct legal principles.  I cannot detect any error of law in his reasoning.
The Claimant says that he never claimed that he lodged any grievance complaint.  But his claim form signed by him clearly makes this claim.  The Employment Judge was plainly entitled to make the finding set out in paragraph 10 of his reasons.
The Employment Judge took into account the Respondent’s failure to comply with the Tribunal’s order.  There is no error of law in this respect.
It is plain that the Respondent provided, and the Employment Judge properly considered, detail of the costs claimed: see paragraph 12 of the reasons.
For these reasons I consider that there are no reasonable grounds for appealing.”

7.	  The contention today is that Employment Judge Malone erred in law.  In his homemade Notice of Appeal he makes a number of criticisms about the lead-up to the award, based upon the striking out of parts of his claim.  The central basis upon which the judge ordered costs was that the Claimant had asserted that he had lodged a grievance in accordance with s.32 of the Employment Act 2002, as it was then in force, and did not disclose to his representative that he had not.

8.	The finding in the judge’s order, in the context of his striking out of the Claimant’s claims for non-pursuit, is that he behaved unreasonably in failing to make this clear.  He could not have brought a claim for race discrimination occurring during the course of his employment unless he had presented a grievance on it, and he never did.  Had this matter been made clear at the outset, then the costs would not have been incurred.  It was unreasonable for him to continue in that way.

9.	The judge addressed the relevant provisions of the law, recognising he had a discretion, and that costs in this jurisdiction are exceptional.  He summarised the position in the following way:

“9.	I refer first to the grounds of the costs application.  Although I found that the claimant had provided a misleading impression that he had asked his representative for his file and that this request had been refused, I do not take that particular matter into account in deciding this costs application.  It seems to me that whilst the claimant’s conduct in relation to that matter was unreasonable, it did not have any significant bearing on the additional costs incurred by the respondent.
10.	I do not accept the claimant’s submission that he had never claimed to have submitted a grievance nor his submission that the respondent knew and the Tribunal knew that no grievance had been submitted.  On the contrary, his claim to have submitted a grievance was clearly stated in his claim to the Tribunal and if he had acted reasonably in providing documents and information to his representative then the mistaken basis of that claim would have come to light very much earlier than it did.
11.	I decide the matter on the basis of my finding at the Pre-Hearing Review that the claimant acted unreasonably in failing actively to pursue his claim.  Nothing that has been said today, whether in the claimant’s evidence or in the submissions which he has made, has persuaded me to change the views which I adopted at that time.  If the claimant had acted like any reasonable litigant in providing documents and information to his own representative, then the complaint of racial discrimination during the employment could have been withdrawn at or very shortly after the Pre-Hearing Review in August 2009, the complaint against Ms Hailes could also have been withdrawn at that earlier time, the claimant’s representative could have provided copy documents when requested and the full Hearing could have proceeded in May 2010 without the need for a Pre-Hearing Review in that month.  The claimant was guilty of unreasonable conduct, it was of considerable gravity and it did put the respondent to substantial additional expense.”

10.	He also considered the amount of time and rates of pay of the solicitors, and concluded that they were rather more than was reasonable, and kept the award down to £3,000.  He took account of the Claimant’s means, noting that the Claimant had been awarded £7,000 in compensation, but he had not been paid this because the Claimant had put forward an appeal.

11.	The Claimant’s appeal was rejected at the sift stage by Cox J, and has been taken no further, so the monetary awards in his favour stand.  I see no reason why the Respondent should not now pay those.  It was in that context that the Claimant was ordered to pay the costs.  In the light of his ability to pay, the judge reduced the exposure from £3,000 to £2,000 which is the subject of the present application.

12.	HHJ David Richardson correctly identified the issues.  Those about which the Claimant complains are out of time, such as the strike out.  As to the depiction of his conduct as unreasonable, Employment Judge Malone was entitled to form that view in the light of the history and the straightforward refusal of the Claimant to acknowledge that he had not submitted a statutory grievance.  Costs were incurred by the Respondents and I see no reason to interfere with the judge’s exercise of discretion.  He paid attention to relevant factors and had no irrelevant factors in mind.

13.	I have read most carefully all the material the Claimant has put in front of me.  He continues to assert that there is relevant documentation in the hands of his previous representative. None of this has been put before me and I do not see how any of this could be relevant to the simple decision made by the judge as to the conduct he described, which is evident on the papers, and as to his assessment of it as being unreasonable. It must be most unusual for a court on appeal to interfere with the discretion of a judge on costs who directs himself correctly to the law and to the relevant factors. 

14.	This application is dismissed, and with it the underlying appeal.