Cost Order

The Legal framework – Employment Tribunal

Rule 76 sets out when a Tribunal has the power to make a cost order:

76 (1) A Tribunal may make a Cost Order …, and shall consider whether to do so, where it considers that – (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response has no reasonable prospect of success.

Rule 78 sets out the amount of a costs order

78 (1) a Cost Order may – (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000 in respect of the costs of the receiving party; (b) 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, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; … ….  (e) if the paying party and the receiving party agree as to the amount payable, be made in that amount (3) for the avoidance of doubt, the amount of a costs order under subparagraphs (b) to (e) of paragraph (1) may exceed £20,000

Rule 84 covers ability to pay:

84. In deciding whether to make a cost … order, and if so, in what amount, the Tribunal may have regard to the paying party’s … ability to pay.

Employment Tribunal costs are the exception, not the rule in that they are designed to compensate the receiving party for costs unreasonably incurred, not to punish the paying party for bringing an unreasonable case, or for conducting it unreasonably. 

Lord Justice Mummery had set out the general principle to follow at this third stage, in his judgement in Yerrakelva v Barnsley MBC [2012] ICR 420, on page 428:

The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case. Also, to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct; what was unreasonable about it and what effects it had.  The main thrust of the passages cited above from McPherson’s case was to reject as erroneous the submission to the court that, in deciding whether to make a Cost Order, the employment Tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed

Stockport Council and Individual Solutions rewarded for their noncompliance

A Cost Order of £5000 was  issued in a race discrimination case which I lost against Individual Solutions SK, a wholly owned company of Stockport Council.  This was a case where the Employment Judge used discretionary power to reward both Stockport Council  and Individual Solutions SK for their noncompliance of disclosure.  In her decision 1.2.1 that ‘The Tribunal observes that the Respondent failed to promptly comply with the directions of this Tribunal in relation to disclosure and its ongoing duty of disclosure generally”.  Stockport Council’s disclosure of documents, the fact that most  of the important documents initially disclosed were ineligible copies, Employment Judge  Porter had made an order for legible copies on 7 March 2014, four weeks into the hearing. I was represented by Counsel who wrote a supporting letter in which he stated “That hearing was concerned with your application to amend your case to allege detriment(s) pursuant to s43B ERA 1996. Prior to that hearing the Respondent had served a bundle of disclosure documents for the main hearing (listed for 7-11/4/14). There were several pages in that bundle which were poorly copied in that they were faint and barely legible. However, these documents had no bearing upon the outcome before EJ Porter and I cannot comment upon whether or not they became relevant for the purposes of the main hearing. Further, I must observe that there was ample time before the main hearing for the Respondent to supply better copies if requested.

Wasted Cost Order threats

I should not have been threatened with a wasted costs order by the ET Judge for having arrived late to court in circumstances where I had suffered a puncture and had to wait for the repair services. These were circumstances beyond my control. If Stockport Council’s legal team wanted to make such an application, having heard my  reasons for being late on the 17^th June 2014, then that was a matter for Stockport Port . However, it was incumbent on the ET Judge, to have acted impartially in both her attitude and language to me. The ET Judge’s failure to act impartially in her attitude and language, meant that I felt intimidated from asking for the necessary time to read to Stockport Council’s closing submissions.  Despite the Employment Tribunal having been allocated hearing time until the 19^th June 2014 and the ET having decided to reserve its Judgement so that deliberations in chambers could take place on two further listed dates for the 17^th and 18^th July 2014.  However, the Court of Appeal ruled the Employment Judge’s conduct was inappropriate.

List of issues

Other reasons for the Cost Order were list of issues should have been decided before the hearing, yet Stockport Council legal team did not provide any, yet a different Judge made judgement they should be discussed at the outset of the hearing. It is noteworthy that the Stockport Council’s Counsel  Macy did not produce her list of issues subsequent to the commencement of proceedings, yet she argued fearlessly that a cost order should be issued to me (See reasons below).  It was not even my mistake that an  Employment Judge made a Preliminary order that lists the issues to be discussed at the outset of the  case hearing on 7 March 2014 as shown below.

5. Without that information it was not possible to fully identify the issues today. It was noted the claimant was hoping to be represented at the final hearing. It was agreed and ordered that if the claimant did obtain legal representation then the parties should make reasonable efforts to agree a list of issues prior to the start of the hearing. If the claimant is not represented then the issues shall be identified at the outset of the hearing, with assistance of the Employment Judge.

Yet Stockport Council internal Solicitor Mr Mark Nolan continues to abuse me, even writing to their parties saying, “We are simply dealing with ongoing enforcement proceedings, which incidentally relate to a costs order that was made against Phoebe in her first Tribunal claim, for acting vexatiously and unreasonably in her conduct during those proceedings.” I won the enforcement proceedings, please read about it on the enforcement page.

I therefore draw you  to the attention of an important point of what was said by the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR , 96 (paragraph 54):

“Before the applications proceed to a substantive hearing the parties should attempt to agree a list of issues and to formulate proposals about ways and means of reducing the area of dispute, the number of witnesses and the volume of documents. Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations.”

It is noteworthy that the Stockport Council’s Counsel did not produce her list of issues subsequent to the commencement of proceedings. Yet Stockport Council’s internal Solicitor Mr Mark Nolan  has persistently shared untrue information to third parties, an example on 21 December 2018, he sent an email to my MP, he stated “We are simply dealing with ongoing enforcement proceedings, which incidentally relate to a costs order that was made against Phoebe in her first Tribunal claim, for acting vexatiously and unreasonably in her conduct during those proceedings. I won the enforcement proceedings in the High Court on 15 June 2019”.

Cost Order reasons Had the power to award costs arisen?

1. The first matter we considered was whether any of the circumstances defined by rule 76(1) had arisen. It was convenient to consider the allegations that the claimant had acted unreasonably in conducting the proceedings before considering whether the claim had any reasonable prospects of success. Miss Macey pointed out that the only claim out of all the allegations made by the claimant that was not out of time was the allegation referring to the St Christopher’s Trust incident. Miss Macey also says that there was clear evidence of unreasonable conduct on the part of the claimant during the course of the proceedings. There were significant parts of two  days in the first week that we sat that was spent sorting out what the claimant’s  claims were when these should have clearly been identified before this time. In addition, the claimant made a further application to amend her claim, having once been refused previously by the Employment Judge.

2. There were other incidents that occurred during the proceedings whereby on one day she did not attend at all due to the fact she had had a fall, and on another occasion arrived extremely late because she had had a puncture and decided to take it to the garage to have it repaired. Miss Macey says that these are all examples of unreasonable conduct. She also maintains that much of the claimant’s questioning was irrelevant to her claim, repeatedly asking witnesses when they had last attended HR training even though these questions were not relevant to the witnesses concerned. The hearing was taken up with two applications for lengthy reconsiderations of her claim, which she also says were unreasonable. She maintains that her claims had no reasonable prospects of success because the claimant was unable to identify any detriment suffered in relation to any of her claims and therefore they could never go any further.

3. We took into account a range of factors. In general terms we noted the claimant’s inability to understand the case brought before the Tribunal

4. We noted that the claimant is in principle unable to satisfy a substantial award at this time, but we were satisfied that she continued in employment and had many years to work before retirement and therefore should be able to satisfy any award from her employment income without undue difficulty over a period of time. We took into account the fact that the respondent is a public body and the money expended in defending these proceedings should have been available for the benefit of the  citizens of Stockport.

According to the EAT in AQ Ltd v Holden [2012] IRLR 648 EAT, an Employment Tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Respondents have been legally represented throughout.