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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Jilley v Birmingham & Solihull Mental Health NHS Trust & Ors [2007] UKEAT 0584_06_2111 (21 November 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0584_06_2111.html Cite as: [2007] UKEAT 584_6_2111, [2007] UKEAT 0584_06_2111 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE RICHARDSON
MS U BRANNEY
MR J R RIVERS CBE
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APPELLANT |
AND OTHERS |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
APPEARANCES
For the Appellant | MR GARY MORTON (Of Counsel) Pro Bono |
For the Respondent | MR TARIQ SADIQ (Of Counsel) Instructed by: Messrs Browne Jacobson LLP Solicitors Victoria Square House Victoria Square Birmingham B2 4BU |
PRACTICE AND PROCEDURE
Costs
The Tribunal did not give any or any adequate reasons on the questions whether (a) it took into account the ability of the appellant to pay, and (b) if so, how it did so. Even though it ordered detailed assessment the Tribunal retained a power to modify an order to take account of ability to pay, for example by limiting the order to a specified part of the costs or capping the amount. Rule 41(1) and (2) of the ETR 2004 considered.
HIS HONOUR JUDGE RICHARDSON
Overview
Proceedings
The preliminary hearing of the appeal
"21. Here we consider that the Claimant has raised arguable grounds for an appeal. We note that she was ordered to pay the costs of the Respondent's unsuccessful strike-out application in the first and second judgments. She has been ordered to pay the whole of the Respondent's costs, subject to a detailed assessment. Three out of four of her claims post-date the inception of the 2004 Employment Tribunal Rules of Procedure which allow for a paying party's means to be taken into account. The Tribunal, in the second judgment, paragraph 96, set out their findings as to her modest income and capital but it is unclear to us at present whether and if so how those means were taken into account in the Tribunal's evaluation in the first case. The costs order of 21 June was made in the absence of the Claimant. She attended the Tribunal, lodged some documents and then left. It is unclear, however, from the Tribunal's reasons what submissions were made on behalf of the Respondent which were accepted by the Tribunal in making their further costs order."
Statutory provisions
""(1) Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides may make-
(a) an order containing an award against that party in respect of the expenses incurred by another party….
(3) An order containing an award against a party ("the first party") in respect of the expenses incurred by another party ("the second party") shall be-
(a) where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000.
(b) where those parties agree on a sum to be paid by the first party to the second party in respect of those expenses, an order that the first party pay to the second party a specified sum, being the sum so agreed; or
(c ) in any other case, an order that the first party pay to the second party the whole or a specified part of the expenses incurred by the second party as taxed (if not otherwise agreed)"
"38 General power to make costs and expenses orders
(1) Subject to paragraph (2) and in the circumstances listed in rules 39, 40 and 47 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");
40 When a costs or expenses order may be made
(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 as 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.
41 The amount of a costs or expenses order
(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 specified part of the costs of the receiving party with the amount to be paid in accordance with the Civil Procedure Rules 1998 or, in Scotland, as taxed according to such part of the table of fees prescribed for proceedings in the sheriff 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 paragraphs (1)(b) or (c) may exceed £10,000."
"15 Enforcement
(1) Any sum payable in pursuance of a decision of an [employment tribunal] in England and Wales which has been registered in accordance with [employment tribunal] procedure regulations shall, if a county court so orders, be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court."
"71.- Satisfaction of judgments and orders for payment of money.
(1) Where a judgment is given or an order is made by a county court under which a sum of money of any amount is payable, whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise, the court may, as it thinks fit, order the `money to be paid either-
(a) in one sum, whether forthwith or within such period as the court may fix; or
(b) by such instalments payable at such times as the court may fix.
(2) If at any time it appears to the satisfaction of the court that any party to any proceedings is unable from any cause to pay any sum recovered against him (whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise) or any instalment of such a sum, the court may, in its discretion, suspend or stay any judgment or order given or made in the proceedings for such time and on such terms as the court thinks fit, and so from time to time until it appears that the cause of inability has ceased."
The striking out application
"We have found that the claimant has behaved at least unreasonably, which is the threshold test in both sets of rules, the test is met. We find that it is just, fair, and proportionate that the claimant should pay the costs of and occasioned by the strike out application. However, we do not propose to deal with costs any further now but we will return to the assessment at the end of the Hearing. In the meantime, we direct the respondent to serve a schedule of costs, with supporting vouchers as appropriate, and any computerised time/cost recording information, grades of fee earner, and rate of charge applicable. We direct that this be done by 2.00pm on Friday 20 January 2006, and a further three copies are to be supplied for the tribunal."
The first and second proceedings
"The tribunal may take into account the means of a party who is being asked to pay costs. The claimant gave an indication of her current income, outgoings, assets and liabilities. She said that her current pay was about £1,500.00 (net) per month, but she found that this money was all accounted for in her budget and there was nothing left at the end of the month. As to her assets, the only one that she identified to the tribunal was her property in Lincolnshire. This has a sale price at the moment of £119,950.00. There is a mortgage of approximately £80,000.00 upon it. The claimant has no other assets, for example, in the form of savings, stocks, shares or other investments. Similarly, there are no other liabilities."
"Having heard both sides, we retired to consider the matter. Our unanimous judgment on the costs application is this. We start by acknowledging that it is unusual for a tribunal to make a costs award. However, the claimant has behaved at least unreasonably for the reasons advanced by Mr Sadiq in support of his application for costs. Unreasonableness is the threshold test. It is just that the claimant be ordered to pay the respondent's costs; and as asked by the respondent, we refer the matter to the County Court for a detailed assessment. We found that the claims were misconceived in substantial part, and without any reasonable prospect of success, and we accept and adopt Mr Sadiq's argument tin support of the costs application. Some issues were malicious, and fabricated at the time, intended to harm other employees, and to bring those issues to the tribunal was vexatious. The conduct of the claimant was such, with her scattergun approach to the number of people involved, that more work was generated than was necessary. She had conducted the proceedings in an unreasonable way. She has breached numerous orders, and as we have remarked before, this has been done wilfully. It is entirely appropriate in view of our conclusions and reasons in relation to both cases to make an order for costs in respect of both cases from the date of issue of each claim form up to and including the Hearing , and we do so."
The third and fourth set of proceedings
"We apply the law to the facts and come to the following conclusions. We confirm that as previously, the conclusions are the unanimous view of the tribunal. We conclude that the arguments put forward by Ms Badger are persuasive. We agree with her submissions and adopt them. We reject the claimant's submissions. We find that in both sets of proceedings, the claimant has acted vexatiously, and unreasonably in bringing them. Furthermore, the claims were misconceived when she brought them. Also, in the conduct of the proceedings, the claimant acted at least unreasonably, which is the threshold test for an award of costs, and at time she was vexatious, and behaved disruptively. Specific examples of these matters were drawn to the attention of the of the tribunal in Ms Badger's submissions, and some are self-evident from the judgment and reasons from the substantive Hearing.
We acknowledge that is unusual for a tribunal to make a costs award. However, when we consider the facts and conclusions that we gave in our judgment and reasons in the substantive Hearing, the test set out in the rules is met. We then consider that it is appropriate. We refer the case to the County Court for a detailed assessment as requested by the respondents. The individual allegations brought by the claimant were not made out, and not made in good faith. Substantial parts were simply unsustainable on the facts, and were misconceived, having no reasonable prospects of success. Proceedings were commenced against the first and second respondents, as individuals, simply because the claimant did not agree with their decisions. This is both unreasonable and vexatious conduct at the point of bringing the proceedings. During the course of conducting the proceedings the claimant has behaved at least unreasonably. She has breached numerous orders of the tribunal. When she was sent the respondents' witness statements she unreasonably returned them. The claimant's conduct at the Hearing was at least unreasonable, as demonstrated in the examples in Ms Badger's submissions.
In coming to our judgment, we had regard to the overriding objective. It is just, fair, and proportionate that we make this order. On reviewing our fact finding, conclusions, and reasons, arising from the substantive Hearing, the tribunal is unanimously of the opinion, and considers that the circumstances in rule 40(3) apply. Having so considered, the tribunal makes a costs order against the claimant, as we consider it appropriate to do so."
Submissions
"It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers, and that – in sharp distinction from ordinary litigation in the United Kingdom – losing does not ordinarily mean paying the other side's costs."
Our conclusions