Dr R J Heal v University of Warwick and others: 1303049/2018 and Others
EMPLOYMENT TRIBUNALS
Case No 1303049/2018, 2206218/2018, 3306697/2018, 3307522/2018
Between
Dr R J HealClaimantUniversity of Warwick and others (see annex A) Date: 6 May 2021Respondent
Before
Employment Judge A JamesDate 6 May 2021
JUDGMENT
(1) The following claims are struck out against all remaining respondents in the claims set out in Annex A and are dismissed because they have no reasonable prospect of success.a. Any remaining Equality Act 2010 claims arising from the claimant’s employment or application for employment, which come within Part 5 Equality Act 2010,b. Any whistleblowing claims under Part IVA Employment Rights Act 1996c. Any claims for breach of contract under the Extension of Jurisdiction Order 1994 against the same four respondents.(2) Such claims were also totally without merit.
REASONS
The Law
[1]Following the case management preliminary hearing on 5 February 2021, the claimant was notified, in an order dated 18 February 2021, that the Employment Judge was considering striking out the following complaints: Case Number: 1303049/2018, 2205140/18, 2206218/2018, 3306697/2018 & 3307522/2018 (see Annex A) 2 of 4a. The remaining Equality Act 2010 claims arising from the claimant’s employment or application for employment, which come within Part 5 Equality Act 2010, if any, against(1) The University of Warwick - Claim A;(2) University College London (“UCL”) - Claim I;(3) The University of Cambridge - Claims F and N;(4) The University of Oxford – Claim M; and(5) QMUL, claim A.b. Any whistleblowing claims under Part IVA Employment Rights Act 1996 against (1) The University of Warwick (A); (2) UCL (I); (3) The University of Cambridge (F and N); and (4) The University of Oxford (F).c. Any claims for breach of contract under the Extension of Jurisdiction Order 1994 against the same four respondents.[2]The claimant was informed that the reasons for the proposed strike out of those claims was because:a. they have no reasonable prospect of success.b. the claimant has not complied with the Orders of the Tribunal dated 24 December 2020.c. the claims are not being actively pursued.[3]If the claimant objected to the proposed strike out, he was to give his reasons in writing or request a hearing at which he could provide them to the tribunal and to the respondents by 4pm on 5 March 2021. The claimant failed to respond by that date. He did however, on 26 March 2021, in an email relating to claims against Queen Mary University of London (QMUL), allege that: The entire legal process for the Claimant has been prevented and perverted by the conduct of the Employment Tribunal Service and London Central Employment Tribunal (and individual therein)”. (sic) He also argues in that email: There are no lawful grounds to strike out the claim against QMUL (nor any other claims). Perverting the legal process and denying access to justice are not lawful; and not lawful basis for any judgements. Fraud Vitiates All.” (sic)[4]That response does not engage at all with the merits of the remaining claims listed in paragraph 2 above or set out any arguable legal or factual basis for them. I therefore conclude that the claims should be struck out because they have no reasonable prospect of success; because the claimant has not complied with the orders dated 24 December 2020, and the order dated 18 February 2021; and because the clams are not being actively pursued.[5]I also conclude, on the basis of the claimant’s failure to engage in any meaningful way with the ongoing legal claims or to set out what legal and factual basis there was for any such remaining claims, that the remaining claims are totally without merit. Case Number: 1303049/2018, 2205140/18, 2206218/2018, 3306697/2018 & 3307522/2018 (see Annex A) 3 of 4 ______________________________ Employment Judge A James 4 May 2021 Sent to the parties on: 06/05/2021 For the Tribunal: ……….………………………….. Case Number: 1303049/2018, 2205140/18, 2206218/2018, 3306697/2018 & 3307522/2018 (see Annex A) 4 of 4 ANNEX A – TABLE OF CLAIMS AND RESPONDENTS Case no Respondents A 1303049/2018 1 University of Warwick 2 Queen Mary University of London F 2205140/18 5 The Chancellor, Masters, and Scholars of the University of Cambridge I 2206128/18 3 University College London M 3306697/2018 1 The University of Oxford N 3307522/2018 1 The Chancellor, Masters and Scholars of the University of Cambridge Case Number: 3332712/2018 1 of 3 EMPLOYMENT TRIBUNALS Claimant: Dr R J Heal Respondent:(1) Oxford Health NHS Foundation Trust(2) University of Oxford(3) Harris Manchester College Oxford(4) Health Education England(5) The Secretary of State for Health and Social Care Before: Employment Judge A James Sitting at: London Central Date: 6 May 2021[1]A further preliminary hearing for case management purposes took place by video link on 5 February 2021. Orders dated 18 February 2021 were sent out following that hearing. They included notice to the claimant that the Employment Judge was considering striking out the above claims on the basis that they had no reasonable prospects of success. If the claimant objected to the proposed strike out, he was to give his reasons in writing, or request a hearing at which he could provide them, by 4pm on 5 March 2021.[2]The claimant has failed to do so, save that on 26 March 2021, in an email relating to claims against Queens Mary University of London, he alleges that: “The entire legal process for the Claimant has been prevented and perverted by the conduct of the Employment Tribunal Service and London Central Employment Tribunal (and individual therein)” (sic). He also argues in that email: “There are no lawful grounds to strike out the claim against QMUL (nor any other claims). Perverting the legal process and denying access to justice are not lawful; and not lawful basis for any judgements. Fraud Vitiates All.” (sic)[3]That response does not engage with the merits of the claims at all or set out any legal and/or factual basis for bringing or continuing such claims in the Employment Tribunal.[4]In relation to (1) above, the tribunal does not have jurisdiction to hear any of those claims. The claimant has not sought to argue otherwise. Nothing more need be said.[5]In relation to (3) above, such claims can only be brought where a claimant has been employed under a contract of employment by the respondents. It is not in dispute that Harris Manchester College Oxford, Health Education England and The Secretary of State for Health and Social Care, have never employed the claimant and the tribunal therefore has no jurisdiction at all in relation to those claims. As for the University of Oxford and Oxford Health NHS Foundation Trust (the Trust), the claimant alleges that he was employed by them between 1999 and 2004. It is the Trust’s primary argument that the claimant has never been employed by them. In any event, even if he had been, the claim should have been submitted within three months of the termination of the claimant’s employment. The claimant claims were not submitted until some 14 years later and are therefore hopelessly out of time.[6]For the above reasons, all of the breach of contract claims have no reasonable prospect of success. Further, the claimant is in breach of the order dated 18 February 2021; and the claims are not being actively pursued. For all of those reasons, the claims should be and are struck out. Case Number: 3332712/2018 3 of 3[7]In relation to (5) above, such claims can only be brought where a claimant has been employed (in the extended meaning of that term under the Employment Rights Act 1996) by the respondents. As noted above, it is not in dispute that Harris Manchester College Oxford, Health Education England and The Secretary of State for Health and Social Care, have never employed the claimant, whether under the extended meaning or at all, and the tribunal therefore has no jurisdiction at all in relation to those claims. Further, in relation to certain NHS employers, which includes Health Education England, claims can be taken where an application has been made for employment. The claimant does not allege that he has ever applied for employment with Health Education England. The whistleblowing claims therefore have no reasonable prospect of success against those respondents. Those claims remain against the University of Oxford and the Trust.[8]I have also determined that the claims which have been struck out were totally without merit. In relation to the claims that the tribunal has no jurisdiction in relation to, those claims are totally without merit for that reason. In relation to the breach of contract claims, the claims are totally without merit against those respondents who have never employed the claimant. Further, they are totally without merit, in relation to those claims that are hopelessly out of time. As for the whistleblowing claims, the claims are totally without merit, where the claimant has not been employed or applied for employment, with those respondents. None of those claims ever had any chance of succeeding.[9]As a result of the strike out of the claims referred to above, the only remaining claims appear to be the Part 5 Equality Act 2010 claims against all respondents and the whistleblowing claims against the first and second respondents only. Those claims remain listed for a preliminary hearing to determine various preliminary issues, on 23 and 24 June 2021 and remain subject to the directions made on 18 February 2021. ______________________________ Employment Judge A James 6 May 2021 Sent to the parties on: 06/05/2021. For the Tribunal: Case Number: 1303049/2018 & others (see annex A) 1 of 10 EMPLOYMENT TRIBUNALS Claimant: Dr R J Heal Respondent: University of Warwick and others (see annex A) Date: 13 August 2021 Before: Employment Judge A James (sitting alone) Sitting at: London Central Appearances: Not applicable - decision made on the papers
Introduction
[10]A small number of respondent’s representatives subsequently re-submitted applications for costs, that had previously been sent to the tribunal, but which had not by that stage been forwarded to the judge. In addition, representatives acting for the University of Southampton in claim H (R2), made a late application for costs on 11 June 2021, limited to counsel’s fees in the sum of £1,593.87.[11]The claimant responded to the application by the solicitors for the University of Southampton on 16 June 2021. He opposes the application by Southampton University on the basis that it had not been submitted in time in line with the original directions of the tribunal.[12]The claimant has still failed to submit a completed form EX140, despite having been directed to do so on two occasions. Nor has he specifically confirmed whether he owns his own home. His failure to do so demonstrates disrespect for tribunal orders.[13]On the basis of the information currently before the tribunal, the tribunal is in a position to determine the amounts to be awarded in relation to the costs claimed. In determining the amounts to be awarded, the tribunal has taken into account the relevant legal principles, as set out below. Case Number: 1303049/2018 & others (see annex A) 5 of 10
The Law
[14]Rule 76(1) Employment Tribunal Rules of Procedure 2013 provides: A Tribunal may make a costs 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 had no reasonable prospect of success.[15]Rule 78 (1) provides that a costs 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… .[16]Rule 84, headed ‘Ability to pay’, provides: In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.[17]The purpose of an award of costs is to compensate the party in whose favour the order is made and not to punish the paying party. Questions of punishment are irrelevant both to the exercise of the discretion whether to award costs under Rule 76(1) and to the nature of the order that is made (see Lodwick v Southwark London Borough Council [2004] EWCA Civ 306, [2004] IRLR 554, at para 23; and Davidson v John Calder (Publishers) Ltd and Calder Educational Trust Ltd [1985] IRLR 97, [1985] ICR 143, EAT).[18]The Court of Appeal in Yerrakalva v Barnsley Metropolitan Borough Council and ors [2012] ICR 420, CA, held that costs should be limited to those ‘reasonably and necessarily incurred’.[19]The findings in the judgment relating to PH1, as summarised above, in relation to the claimant’s unreasonable conduct of the proceedings, may also be relevant to the assessment of the amount of costs to be awarded - Yerrakalva v Barnsley Metropolitan Borough Council and anor [2012] ICR 420, CA.[20]The Court of Appeal in Kovacs v Queen Mary and Westfield College and another [2002] EWCA Civ 352 held that although a tribunal may take a party's ability to pay into account, this does not mean that: poor litigants can behave with impunity and without fearing that any significant costs order will be made against them, whereas wealthy ones must behave themselves because otherwise an order will be made.[21]Where the tribunal has regard to ability to pay, a tribunal must show that it has given proper consideration to such matters as future earning capacity and, where appropriate, the alternatives to making a whole costs order. The failure to do so may well result in the case being remitted to the tribunal - see Herry v Dudley Metropolitan Council [2017] ICR 610, EAT. In Herry, a tribunal ordered an impecunious claimant to pay all the respondents' costs, which, after a detailed assessment, amounted to over £110,000. It had regard to his ability to pay and Case Number: 1303049/2018 & others (see annex A) 6 of 10 held that, although he was currently off work due to stress, it was likely that he would return to work as a teacher and that his circumstances 'may well improve' in the future. However, what it did not do, according to the EAT, was to consider what the claimant's earning capacity and likely net earnings might be nor did it consider whether an award of the whole costs was reasonable and proportionate in the circumstances (see para 42). Judge Richardson, giving judgment, stated that it was difficult to see how he could pay off a figure 'remotely close' to the sum ordered, and that the tribunal did not explain how he could do so. Having decided to take ability to pay into account, 'there was an obvious case for capping the award or ordering a proportion of the award', yet the tribunal did not explain why it did not consider this option (para 42). The case was, accordingly, remitted to the same tribunal to consider these matters.[22]As noted by the EAT in Sumukan (UK) Ltd and nor v Raghavan UKEAT 0087/09, the tribunal must state: on what basis — and in accordance with what established principles — it is awarding any sum of costs (which the PH1 judgment has already done in relation to the decision to award costs in principle); on what basis it arrives at the sum; and why costs are being awarded against the party in question.[23]The case of Mirikwe v Wilson & Co Solicitors and others UKEAT/0025/11 is authority for the making of a costs order in circumstances where the paying party has made no submissions as to their ability to pay costs or any appearance in the costs proceedings. The unreasonableness of a party’s conduct can be taken into account in deciding whether to take ability to pay into account, and the failure to make submissions or take part is relevant conduct.[24]In Oni v NHS Leicester City (formerly Leicester City Primary Care Trust) [2013] ICR 91, EAT, Judge Richardson pointed out that if means have not been taken into account, and the case subsequently goes to the county court, the form upon which the paying party will set out his or her means is Form EX 140. He therefore suggested that a possible solution to the problem of how a litigant in person should deal with the question of means where he is confronted with an application for costs is for the tribunal, at least where it is giving directions in advance relating to a costs hearing, to say that a party who wishes his or her means to be taken into account should complete this form (see para 46). Conclusions on costs[25]Bearing in mind the matters referred to in Sumakan, these conclusions first set out the basis on which, and the principles applied, in deciding what sum of costs to award; second, on what basis the tribunal has arrived at the sums awarded; and third, why those sums have been awarded against the claimant. These are dealt with in turn below. The basis on which costs have been awarded[26]As for the basis upon which costs are being awarded, those have already been set out in the judgement following PH1. The other legal principles that have been applied are set out in the Law section above and ae further summarised where appliable in the following section setting out why costs are being awarded. Case Number: 1303049/2018 & others (see annex A) 7 of 10 The basis for the sums awarded[27]None of the amounts claimed have been challenged by the claimant. Those amounts appear to the tribunal to have been reasonably and necessarily incurred. In the absence of any challenge at all by the claimant to those amounts, there is no information upon which the tribunal could reasonably conclude otherwise.[28]The amounts claimed have on the whole excluded VAT. Where VAT has been inadvertently included, the sums have been reduced accordingly.[29]The amounts claimed appear on the whole to reflect the guideline hourly rates set by the courts. That did not appear to be the case in relation to the claims for costs in relation to the Oxford Colleges. It was suggested in the tribunal’s email of 27 May 2021, that a broad-brush approach be taken, by allowing 65% of the amounts claimed - save for those instances where that still exceeded £20,000, in which case the amounts awarded would be limited to a maximum of that sum. To the tribunal’s knowledge, those respondents have not objected to that suggested approach. Nor has the claimant.[30]In most instances, the amounts claimed were below the maximum a tribunal can award on summary assessment. The exceptions being the claim on behalf of the University of Warwick in claim A (£35,657.10); the University of Cambridge in claims F and N (£25,837.42 and £27,684.92 respectively); The Royal Holloway and Bedford New College in claim G (£20,898.12); and Christ Church in claim M (£23,877.18 after the 35% discount has been applied).[31]In some instances, costs have been claimed in relation to the same respondent, in more than one set of proceedings. In arriving at an appropriate sum, the tribunal has considered it appropriate and proportionate to split the costs equally between each claim. Hence the amounts awarded to Kings College London in claims G and J (arrived at by dividing the total sum claimed in half); similarly, in relation to Camden & Islington NHS Foundation Trust (claims I & J); and in claim N, in which the total amount claimed on behalf of the Cambridge Colleges has been divided by six.[32]I note in passing at this stage, that taking into account the actual amounts claimed (save in the case of the Oxford colleges, where just 65% of the actual amounts claimed has been used for the calculation), the costs are in excess of £500,000. That is just in relation to the respondents who have gone on to claim costs in the proceedings to which these claims relate. It is likely that the total cost, including those incurred by both parties were not pursuing the claim in these particular proceedings, and in relation to the other claims it is so far been determined, namely D, E, O and P, that the costs will be in the region of £750,000. That is a substantial amount, on any reckoning. Why the sums have been awarded[33]in deciding what amounts to award, I have reminded myself that the purpose of a costs award is to compensate, not punish. I have concluded that the power granted by Rule 78(1)(a), in a summary assessment, is to award up to £20,000 to each respondent, in each separate claim. Case Number: 1303049/2018 & others (see annex A) 8 of 10[34]I have taken into account my previous finding that in bringing and maintaining these proceedings, the claimant has acted unreasonably. That is also reflected, amongst other things, in the finding that the claims were also totally without merit.[35]The tribunal has a discretion to take into account a party’s ability to pay. The tribunal is entitled in appropriate circumstances to decide not to do so. The Tribunal has determined in this case that it is not appropriate to take into account the claimant’s ability to pay. That is partly because of his unreasonable conduct leading up to the award of costs. It is also partly because of the claimant’s failure to comply with the order to complete form EX140, which would have put before the tribunal all relevant information about means, in a format which is subject to a signed statement of truth. In line with the case of Oni, the claimant was ordered to complete Form EX140 if he wanted the tribunal to take into account his ability to pay. He has failed to do so, twice. Nor has the claimant confirmed, as ordered to do on 27 May 2021, whether he owns his own home. His continuing failures to comply with tribunal directions also amount to unreasonable conduct.[36]The purpose of ordering the claimant to complete form EX140, was to ensure that all relevant information was before the tribunal, before determining the amounts to be awarded against the claimant. It is not for the claimant to decide how to respond to tribunal orders by simply sending an email with some information about means contained in it instead.[37]In such circumstances, I have determined that the appropriate course of action is not to exercise the discretion given to the tribunal by rule 84.[38]As for the award in relation to the University of Southampton, the tribunal has taken into account that this was not made until a second opportunity had been given to the University to do so. However, the amount claimed is modest, and limited to counsel’s fees, not the solicitors costs incurred by the University. In such circumstances, the tribunal considers it just to award the modest sum claimed.[39]Having taken all of the above into account, the decision of the tribunal is to award the amounts set out in the judgement above. ______________________________ Employment Judge A James 13 August 2021 Sent to the parties on: 16/08/2021 For the Tribunal: OLu. Case Number: 1303049/2018 & others (see annex A) 9 of 10 ANNEX A – TABLE OF CLAIMS AND RESPONDENTS SUBJECT TO THE COSTS JUDGMENT Case no Respondents A 1303049/2018 R1 University of Warwick B 1303517/2018 R1 Birmingham University C 1400476/2018 R2 University of Bath F 2205140/18 R5 The Chancellor, Masters, and Scholars of the University of Cambridge G 2205365/18 R1 King’s College London H 2206127/18 R2 University of Southampton I 2206128/18 R2 Camden & Islington NHS Foundation R3 University College London R4 University of East London R7 Royal Holloway and Bedford New College J 2300463/18 R1 South London & Maudsley NHS Foundation Trust R2 King’s College London R5 Camden & Islington NHS Foundation Trust K 2302437/2018 R1 St George’s, University of London Case Number: 1303049/2018 & others (see annex A) 10 of 10 M 3306697/2018 R2 Green Templeton College R4 Magdalen College R5 Pembroke College R6 Somerville College R7 St. Anne’s College R8 St Catherine’s College R9 St Hugh’s College R10 St Peter’s College R11 Worcester College R12 Christ Church N 3307522/2018 R1 The Chancellor, Masters and Scholars of Cambridge University R2 Hughes Hall R3 St Edmund’s College R4 Wolfson College R5 Magdalene College R6 Wescott House R11 Ridley Hall Theological College Case Number: 1303049/2018 & others (see annex A) 1 of 7 EMPLOYMENT TRIBUNALS Claimant: Dr R J Heal Respondent: University of Warwick and others (see Annex A) Date: 11 February 2022 Before: Employment Judge A James (sitting alone) Sitting at: London Central Appearances: Not applicable - decision made on the papers The Costs Judgment was issued on 13 August 2021.[2]The relevant sections of the judgment read as follows:[7]The claimant did not complete form EX140 as he had been ordered to do….[12]The claimant has still failed to submit a completed form EX140, despite having been directed to do so on two occasions. Nor has he specifically confirmed whether he owns his own home. His failure to do so demonstrates disrespect for tribunal orders. … 35 The tribunal has a discretion to take into account a party’s ability to pay. The tribunal is entitled in appropriate circumstances to decide not to do so. The Tribunal has determined in this case that it is not appropriate to take Case Number: 1303049/2018 & others (see annex A) 2 of 7 into account the claimant’s ability to pay. That is partly because of his unreasonable conduct leading up to the award of costs. It is also partly because of the claimant’s failure to comply with the order to complete form EX140, which would have put before the tribunal all relevant information about means, in a format which is subject to a signed statement of truth. In line with the case of Oni, the claimant was ordered to complete Form EX140 if he wanted the tribunal to take into account his ability to pay. He has failed to do so, twice. Nor has the claimant confirmed, as ordered to do on 27 May 2021, whether he owns his own home. His continuing failures to comply with tribunal directions also amount to unreasonable conduct. 36 The purpose of ordering the claimant to complete form EX140, was to ensure that all relevant information was before the tribunal, before determining the amounts to be awarded against the claimant. It is not for the claimant to decide how to respond to tribunal orders by simply sending an email with some information about means contained in it instead. 37 In such circumstances, I have determined that the appropriate course of action is not to exercise the discretion given to the tribunal by rule 84. 3. An application was made by the claimant on 16 August 2021, for a reconsideration of the judgment. In his reconsideration request, the claimant asserted that contrary to what is stated in the judgment, form EX140 had in fact been filed by him. 4. As a result, the directions set out below were made. Before setting out what those direction were, and the responses to them, Employment Judge A James apologises to the parties to the proceedings and their representatives, that the emails setting out the claimant’s response to the costs application, including a copy of form EX140, were not provided to him prior to the decision on costs being made. Employment Tribunal Rules of Procedure 2013 5. Rules 70, 71 and 72 of the Employment Tribunal Rules of Procedure 2013 provide as follows: RECONSIDERATION OF JUDGMENTS Principles 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application 71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the Case Number: 1303049/2018 & others (see annex A) 3 of 7 original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. 6. The application for reconsideration has been considered under Rule 72(2). The parties have agreed that the application be dealt with on the papers, and have been given the opportunity to make written representations. The parties submissions 7. The following directions were sent to the parties on 27 October 2021: 7.1. The claimant is ordered to confirm on or before 4pm on 23 November 2021, whether or not other attachments were sent to the Employment Tribunal on or before 4pm on 11 June 2021? If so, any further emails sent to the tribunal attaching those documents, should be forwarded to the tribunal by the same time and date, via this email address (as well as to the London Central address), together with any acknowledgement email(s) in response from the tribunal. 7.2. If form EX140 was not in fact filed in time, the claimant is ordered to set out any written representations he wishes to make, on or before 4pm on 23 November 2021, as to whether or not his means should be taken into account now, and if so why? 7.3. Finally, the claimant is ordered to confirm on or before 4pm on 23 November 2021, whether or not he would like a hearing in relation to the reconsideration application, or whether he is content for the application to be determined on the basis of the written representations? If he does want a hearing, he should set out whether, and if so why, he wants a hearing in person, and if so which at which venue; or a hearing by video link. 7.4. The respondents are ordered to respond in writing to this email address by 4pm on 21 December 2021. They should also confirm whether they want the application to be determined on the basis of the written representations, or at a hearing; and if the latter, whether they are content for the hearing to be by video link, or in person (and if so where?). To the extent that the respondents are able to consolidate their responses, rather than sending individual responses, that would be appreciated by the tribunal, although they are at liberty to send individual responses if that is more convenient/ less costly for them. The claimant’s response 8. In his response, the claimant confirmed that he did send form EX140 to the tribunal. Enquiries with tribunal staff have confirmed that, contrary to the previous Case Number: 1303049/2018 & others (see annex A) 4 of 7 confirmation that no response had been received and that the form had not been filed, it had been filed just before the deadline. The claimant confirmed that he is content for the reconsideration application to be dealt with in writing. 9. The form EX140 is not signed and dated by the claimant. It states the following. 9.1. The claimant is a 59-year old man. 9.2. He is divorced. 9.3. He provides care to an elderly relative. 9.4. He has been unemployed since 2008. 9.5. He has been a part-time carer between 2008 to 2011 and from 2016 onwards 9.6. He is in receipt of Universal Credit, in the sum of £229.54 pcm. 9.7. He lives in lodgings in a relative’s home, presumably the same relative to whom he provides part-time care. 9.8. He pays £500 rent pcm. He does not receive housing benefit. He is said to be in rent arrears of £2500. He pays £502.07 Council Tax pa. 9.9. The claimant has two bank accounts, with a total of £219.80 in them (the balance in November 2021 was £54). He owns premium bonds to the value of £525 (current value £325) and Saga shares worth, £97.81 (the current value is £71.66). 10. It is apparent from the above that the claimant is a person of limited means. That does not appear to be likely to change anytime soon. The claimant’s email of 23 November 2021 shows a slight reduction in his capital since form EX140 was filled in. The respondents’ joint response 11. Nick Wright, on behalf of the University of Warwick, made the following representations, on behalf of his client and all of the other respondents. 12. The respondents accept that they received the claimant’s email of 11 June. As noted above, separate enquiries have confirmed that those emails were also received by the tribunal, in time.[13]Rule 84 gives discretion to take into account means. It is not compulsory. Insofar as the contents of paragraph 35 of the costs judgment refer to unreasonable conduct of the claimant in the litigation, they are still applicable.[14]The tribunal is asked not to exercise its discretion to take the claimant’s ability to pay into account. This is on the basis of: 14.1. The claimant’s unreasonable conduct in bringing this litigation. 14.2. Dr Heal is a prolific litigant in person; 14.3. He is subject to a General Civil Restraint Order (GCRO) as a result of him bringing several claims that have been found to be totally without merit. 14.4. A costs award is not made to punish the paying party but to compensate the party in whose favour the order is made. 14.5. The tribunal has found that the costs incurred are reasonable; Case Number: 1303049/2018 & others (see annex A) 5 of 7 14.6. Whilst there may be a low chance of full recovery of these costs, it is hoped that the award of costs award at the high end of the limit imposed on the tribunal by the summary assessment process shows that there can be consequences for litigants in person like the claimant.[15]The respondents are, like the claimant, content for the reconsideration application to be dealt with on the papers. Decision on the application[16]Bearing in mind the above representations, the decision of the tribunal is to refuse the application for reconsideration. Even though form EX140 was filed, it was not signed and dated, as required by the process.[17]In any event, the tribunal has the discretion to decide whether or not to take means into account. The tribunal considers that such discretion should be exercised in favour of the respondents in these claims, not the claimant.[18]The claimant has persisted, for a number of years, in pursuing unmeritorious claims, causing significant costs for all of the respondents involved. It is estimated that the true cost, for all of the respondents involved in this litigation, including claims not previously taken into account, pursued by the claimant against four respondents in the Cardiff Employment Tribunal and one respondent in the Birmingham Employment Tribunal is likely to be in the region of £1 million.[19]The claimant’s unreasonable conduct throughout this litigation persuades the tribunal that this is an appropriate case to decide not to take the claimant’s means into account. In doing so, the tribunal has had due regard to the principle that the purpose of a costs award is to compensate the respondents, not to punish the claimant.
Outcome
[20]The reconsideration application is refused for the reasons set out above.