To understand why I was issued with a Cost Order, I had to research the success rates of Race Discrimination cases at Manchester Employment Tribunal courts. I spent over two years researching case judgements at Manchester Employment Tribunal courts as I studied my MSc in Business Analytics. I found that Black Ethnic Minorities, Litigants in Person, who brought race discrimination cases whereby the Respondent had filed a defence, none of them won their cases. Statistically, of all the race discrimination cases, the black ethnic minorities were discredited. Claimants who were represented saw their chances of winning at 7%. I am currently doing research on Cost Orders; specifically, how many were issued to Litigants in Person vs represented parties. I noted that I am part of those statistics.
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:
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  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.
I raised concerns with Stockport Council’s internal legal team who were conducting the case. Mr Sean Reynolds (In house Solicitor ) advised management to discipline, the disciplinary statement stated “ Whilst there were clearly concerns about compliance with the directions of the Employment Tribunal in relation to disclosure, the Tribunal judgement does not provide any evidence to substantiate PM’s claim that “Stockport Council failed to disclose documentation despite 3 different judges giving orders, withheld information, deliberately mislead Manchester Tribunal Court”. Some individuals working within Stockport Council legal and management departments bragged they didn’t have to disclose documents as an Employment Judge had ruled in their favour and even issued a Cost Order against me to solidify their position on failure to comply with disclosure.
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 17th 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 19th 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 17th and 18th 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.
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  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”.
Lay Panelist falls asleep during proceedings
The Lay Panelist was asleep on several occasions (witnessed by a third party). On one occasion, such was his fatigue that he had asked the Employment Judge not to sit until 5pm to allow the evidence to finish but wanted the case to end at 4.30pm. I sent an email to ET raising concern, I did not receive a response. The Court of Appeal decided it was too late to open that point of law.
Cost Order reasons Had the power to award costs arisen?
According to the EAT in AQ Ltd v Holden  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.
Employment Tribunal Judges are very powerful, they have a lot of discretionary power. A witness who had travelled 200 miles to give evidence was not allowed to speak to the tribunal. The Employment Judge wrote in the judgement she gave evidence. Facts and findings of Employment Judges cannot be challenged, they are taken as facts by the Employment Appeal Tribunal. Despite my witness writing a letter of support as quoted below, it did not make any difference
“The first day at tribunal was extremely upsetting as I had travelled almost 200 miles to give evidence. This in fact did not happen and I left feeling that my friend was outnumbered on ALL fronts as both former bosses, counsel and judge were very hostile. I was never called upon to give evidence pertaining to the hostility that could be shown to colleagues as I myself experienced. The judge therefore decided not to hear this and so therefore one has to state that the tribunal was not 100% entirely fair. I have still kept my original e-mail of complaint to ISSK on my leaving, so if it is needed it will be to hand”
I submitted a complaint with the Employment Tribunal; the Regional Employment Judge rejected the complaint as it was over three months, not because it had no merit. I also submitted concerns to Stockport Council internal solicitor and Deputy Chief Executive, (Chair of Whistleblowing, Chair of Channel Panel Prevent), received acknowledgement from internal solicitor, he acknowledge “I have updated Laureen about your case and Laureen has asked me to acknowledge the email on her behalf.” No action was taken, in a document submitted in court, Lauren in her witness statement denies receiving the concerns, that’s what we call being in a position of power and being able to use public taxpayers’ money to buy the best defence with impunity.
It’s noteworthy I submitted written representations, none of them were considered, an Employment Judge has the power to disregard submissions, that’s within the law and can choose which evidence to prefer.
The disadvantages faced by litigants in person stem from their lack of knowledge of the law and tribunal procedure by failing to choose the best cause of action defence, present their points in the Tribunal. Most Cost Orders are issued against Litigants in Person.