Employment Judge Meichen, Mr C Greatorex, Mr E StanleyIn person for claimantMr P Gorasia (instructed by counsel) for respondentDate 31 July 2024
JUDGMENT
[1]The Claimant is ordered to pay the Respondent’s costs summarily assessed in the sum of £14000 pursuant to rule 76 (1) of the Employment Tribunal Rules 2013. Signed by: Employment Judge Meichen Signed on: 20 September 2024 Reasons for the judgement having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. 1 of 1[2]JUDGMENT ON TWO APPLICATIONS FOR RECONSIDERATION The claimant’s applications for reconsideration are refused because there is no reasonable prospect of the original decisions being varied or revoked.
REASONS
[1]Following a 4 day final hearing in July 2024 the claimant’s claims, for failure to make reasonable adjustments and direct disability discrimination, failed and they were dismissed. The claimant attended the hearing and represented himself. The respondent applied for costs but there was insufficient time to hear the application. The tribunal ordered that the respondent’s application for costs would be heard on 19 September 2024. The claimant was given the opportunity to respond to the costs application in writing and he attended the hearing and represented himself. The claimant was ordered to pay part of the respondent’s costs. The claimant is an intelligent and experienced litigant. At both hearings he presented detailed evidence and arguments in both oral and written format. The claimant participated fully in both hearings.[2]The claimant sends quite a lot of emails to the tribunal. The claimant’s request for reconsideration of the liability judgment had not been identified until he raised it at the costs hearing. Following the decision on the costs application the claimant submitted further emails applying for reconsideration of the costs decision.[3]After the hearing on 19 September I wrote to the parties to say that I would consider the claimant's applications for reconsideration in accordance with Rule 72(1) of the Employment Tribunal's Rules of Procedure on 30 October 2024 and a decision would be sent to the parties as soon as possible after that date. I explained that I would consider the claimant's application for reconsideration of the liability judgment as set out in the 33 page pdf attachment to the claimant's email to the tribunal sent at 1 30 pm on 19 September and the claimant's 1 of 4 application for reconsideration of the costs judgment as set out in the claimant's emails to the tribunal sent at 16.48, 17.37, 18.03 and 23.50 on 19 September.[4]Following that letter the claimant wrote a number of further emails which appear to contain extra information which he considers relevant to his reconsideration applications. I have considered the matters raised in those emails aswell. Overall, there was a substantial amount of information to consider which does not lend itself to easy summarisation and I shall not attempt to do so. I have however considered all of the points raised. Law[5]Rule 70 of the Tribunal’s rules of procedure provides as follows: “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.”[6]Rule 71 sets out the procedure for applying for reconsideration. It includes that any reconsideration application shall set out why reconsideration of the original decision is necessary.[7]Rule 72(1) then provides as follows: “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the 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…”.[8]When dealing with the question of reconsideration I must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ (Rule 2). This includes:a. ensuring that the parties are on an equal footingb. dealing with cases in ways which are proportionate to the complexity and importance of the issuesc. avoiding unnecessary formality and seeking flexibility in the proceedingsd. avoiding delay, so far as compatible with proper consideration of the issues; ande. saving expense.[9]I should also be guided by the common law principles of natural justice and fairness. This would include the importance of finality in litigation.[10]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, Her Honour Judge Eady QC explained that the wording ‘necessary in the interests of justice’ allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the 2 of 4 interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’.[11]Reconsideration of a judgment may be necessary in the interests of justice if there is new evidence that was not available to the tribunal at the time it made its judgment. It is incumbent on the party applying for reconsideration to explain why the new evidence was not produced beforehand and why it is now in the interests of justice to consider that evidence.[12]The principles to be applied in this scenario come from the case of Ladd v Marshall 1954 3 All ER 745, CA. In summary, it is necessary to show:a. that the evidence could not have been obtained with reasonable diligence for use at the original hearing,b. that the evidence is relevant and would probably have had an important influence on the hearing; andc. that the evidence is apparently credible.[13]The EAT has confirmed that the tribunal should refuse an application for reconsideration unless the new evidence is likely to have an important bearing on the result of the case (Wileman v Minilec Engineering Ltd 1988 ICR 318, EAT).[14]The EAT in Outasight also held that the interests of justice may allow fresh evidence to be adduced where some additional factor or mitigating circumstance has the effect that the evidence in question could not have been obtained with reasonable diligence at an earlier stage. This might apply where, for example, a party was ‘ambushed’ by the introduction of evidence at the hearing or was incorrectly refused an adjournment. However, it is not generally in the interests of justice that parties in litigation should be given a second bite of the cherry simply because they have failed as a result of oversight to provide all the evidence available in support of their cases at the original hearing. Analysis and conclusion[15]I have read all the documents submitted by the claimant. I cannot discern any valid grounds for the claimant’s reconsideration applications. Much of the material seems to have been cut and pasted from different sources and/or it is generated by AI. I do not think the claimant has provided any cogent explanation as to why reconsideration is necessary in the interests of justice.[16]It is relatively clear that the claimant seeks to challenge or question some of the findings of the tribunal. He also seeks to provide further information, commentary or submissions about the issues the Tribunal had to determine and the findings we reached. These are not valid grounds for reconsideration.[17]To the extent that the applications seek to rely on new evidence the claimant has not shown that the evidence could not have been obtained with reasonable diligence for use at the original hearings or that the evidence would probably 3 of 4 have had an important influence on the hearing. Rather, the evidence is designed to support arguments the claimant deployed at the hearings which we have already considered or arguments he could have raised and he could have submitted the evidence at the time of the original hearings. There is nothing new that I have seen that could possibly lead to the tribunal varying or revoking its decisions – our original analysis remains accurate.[18]There is no reasonable prospect of the original decisions being varied or revoked, because it appears that the reconsideration applications are an attempt by the claimant to reargue his case. The claimant’s applications are based upon expanding upon points which were raised and considered at the hearings or raising arguments which could and/or should have been deployed at the hearing. The applications read as though the claimant has taken the opportunity to make further submissions following the judgments. It is not in the interests of justice to reconsider a judgment on that basis. The claimant had the opportunity to provide evidence, ask questions and make submissions on all the issues the Tribunal had to determine at the hearings.[19]I have considered all of the matters raised by the claimant and none of them are such that they would give any reasonable prospect of the original decision being varied or revoked. All that the application shows is that the claimant disagrees with, or at least questions, the decisions but this is not sufficient to justify reconsideration. The applications are simply an attempt to have a second bite of the cherry. The interests of the parties and of justice are best served by finality of litigation and in particular confirming the Tribunal’s judgments. ____________ ______________ Signed by: JUDGMENT was sent to the parties dated 20 September 2022. The tribunal ordered the claimant to pay the respondent’s costs summarily assessed in the sum of £14000. Written reasons were subsequently requested by the claimant on 27 September 2024. The following reasons are provided. Full oral reasons were given at the end of the costs hearing on 19 September 2024 and so these written reasons are based on the reasons already given orally.[20]In Radia the tribunal was dealing with a case where the respondent was seeking the whole costs of the litigation on the basis that the claim had no 5 of 17 reasonable prospect of success from the outset. HHJ Auerbach said that in such a scenario the tribunal: “… should first, at stage 1, consider whether that was, objectively, the position, when the claim was begun. If so, then at stage 2 the Tribunal will usually need to consider whether, at that time, the complainant knew this to be the case, or at least reasonably ought to have known it. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation.”[21]In that context HHJ Auerbach went on to comment on the difference between the task of considering no reasonable prospect of success in relation to costs and in relation to strike out. HHJ Auerbach said: “When considering a strike-out application, the Tribunal must decide whether the complaint or argument in question “has” – at the very same time when it decides that application – no reasonable prospect, based on the information available to the Tribunal at that point. Such applications are often considered at an early stage in the litigation, without the benefit of sight of any evidence; and the Tribunal’s task is to assess the prospects of the claim succeeding if or when it comes to trial in the future. Those prospects are usually considered, therefore, on the basis of the case asserted, taken at its highest, although the Tribunal can also take account, for example, of key documents that may be before it at that point. Where the Tribunal is considering a costs application at the end of, or after, a trial it has to decide whether the claims ‘had’ no reasonable prospect of success judged on the basis of the information that was known or reasonably available at the start, and considering how at that earlier point the prospects of success in a trial that was yet to take place would have looked. But the Tribunal is making that decision at a later point in time, when it has much more information and evidence available to it, following the trial having in fact taken place. As long as it maintains its focus on the question of how things would have looked at the time when the claim began, it may and should take account of any information it has gained and evidence it has seen by virtue of having heard the case, that may properly cast light back on that question. But it should not have regard to information or evidence which would not have been available at that earlier time.”[22]This is potentially relevant because, as we shall explain, the respondent made an unsuccessful application for strike out at an early stage in this claim.[23]As set out above Rule 84 provides that in deciding whether to make a costs order or in what amount the tribunal may have regard to the paying party’s ability to pay. Rule 84 allows the tribunal to have regard to the paying party's ability to pay, but it does not have to (Jilley v Birmingham and Solihull Mental 6 of 17 Health NHS Trust and ors EAT 0584/06). The tribunal does not have to limit a costs order to what the paying party can afford to pay, or is able to pay at the time the order falls to be made (Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797).[24]The threshold to trigger costs is the same whether a litigant is or is not professionally represented, although in applying those tests the EAT has held that the status of a litigant is a matter which the tribunal should take into account. The fact that a party is not represented may be relevant to whether the direction to award costs should be exercised. In particular professional standards should not be applied to lay people as they are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. But lay people are not immune from orders for costs: some litigants in person act unreasonably even when proper allowance is made for their inexperience and lack of objectivity, and they are consequently ordered to pay costs. See AQ Ltd v Holden 2012 IRLR 648 and the approval of the reasoning in Holden by Underhill P in Vaughan v London Borough of Lewisham and ors 2013 IRLR 713.[25]When considering whether a claim had any reasonable prospects of success (for the purposes of Rule 76(1)(b)) it is clear that Tribunals are required to assess this objectively (see Hamilton-Jones v. Black EATS/0047/04). However, and as made clear by the AQ case, the fact that the claim was brought by a litigant in person may be relevant when the tribunal goes on to consider whether to make a costs order once the threshold of 76(1)(b) has been met.[26]Offers of settlement accompanied with a warning that an application for costs will be made if the offer is rejected and the case pursued do not necessarily lead to a successful costs application in Employment Tribunals, in the event that the party rejecting the offer does not succeed at a full Tribunal hearing. It is Rule 76 which sets out the circumstances in which costs orders may be made. However, Tribunals can take these types of letters into account in appropriate circumstances when applying Rule 76. In particular the failure to accept a prior offer may have a bearing on whether the claimant has conducted proceedings unreasonably or pursued a claim that has no reasonable prospect of success. (see for example Anderson v. Cheltenham & Gloucester plc UKEAT/0221/13). Issues[27]The issues to determine were:a. Whether the claim had no reasonable prospect of success.b. Whether the claimant’s conduct of the proceedings had been unreasonable.c. Whether to award the respondent costs.d. What amount of costs should be awarded. Findings[28]This claim originally involved complaints of disability discrimination in respect of job applications the claimant made to the respondent in 2020 and 2021. 7 of 17[29]The respondent applied to strike the complaints out or in the alternative for the claimant to pay a deposit order. That application was heard by EJ Wedderspoon at a hearing on 16 May 2023.[30]EJ Wedderspoon refused the application to strike out. However, she found that the complaints regarding the 2020 application had little reasonable prosect of success and ordered the claimant to pay a deposit in respect of them.[31]The claimant did not pay the deposit in respect of his complaints about the 2020 application. Consequently they were struck out by EJ Wedderspoon in a judgment dated 18 July 2023.[32]EJ Wedderspoon’s reasons for concluding that the complaint about the 2021 application had more than a little reasonable prospect of success were explained at paragraph 27 of her decision which was sent to the parties on 12 June 2023: “The application made on 19 February 2021 concerns a complaint of direct disability discrimination; a failure to make reasonable adjustments and a failure to provide an auxiliary aid. The respondent’s case is that a better candidate was recruited (page 198). The claimant’s case is that he was not recruited because he was disabled; the respondent failed to grant him his requested reasonable adjustments of an oral application; a short 5 to 10 minute explanation (not a standard interview) or specific interview questions or provide him with an auxiliary aid of an oral interview. The tribunal concluded that on a summary assessment it cannot be said that the allegations of this claim have little reasonable prospects of success. It is a matter for evidence for the tribunal to determine at a final hearing whether the provision of a standard interview; as opposed to an oral 5 to 10 minute interview or the requirement to have a standard interview in the absence of being informed of specific questions placed the claimant at a disadvantage and whether the provision of 5 to 10 minute oral interview or provision of specific questions was a reasonable adjustment in the circumstances. These are fact sensitive matters and can only be determined when the tribunal hears all the facts of the case. The application for a deposit order in respect of 2021 application is therefore refused.”[33]It can therefore be seen not the basis for EJ Wedderspoon’s decision was that she considered that there were issues of evidence which needed to be determined and on a summary assessment at that early stage it could not be said that the complaint had little reasonable prospect of success. Disclosure had not taken place by the time of EJ Wedderspoon’s decision and witness statements had not been exchanged.[34]On 8 August 2023 the respondent sent the claimant its first cost warning letter. That letter referred to EJ Wedderspoon’s decision but pointed out that it was not saying that the claimant’s claim had merit; rather it was simply stating that all facts would need to be heard. The letter stated that given the evidence which the parties were now aware of there was no doubt that the claims would fail. The respondent set out its analysis of the claim and explained the flaws which it 8 of 17 said meant that the claim was bound to fail. The tribunal agrees with the respondent’s submissions on the costs application that this analysis was effectively repeated by the tribunal in our liability judgement dismissing the claims. In other words the reasons why the claim failed were essentially the same as the reasons which the respondent brought to the claimant’s attention in their letter of 8 August.[35]The offer which the respondent made to the claimant was a “drop hands” settlement – that the parties would bear their own costs in exchange for the claimant withdrawing his claim. The respondent advised the claimant to seek legal advice on the contents of the letter and the offer which had been made.[36]The respondent attempted to engage with the claimant about the points raised in the letter including via ACAS. We agree with the respondent’s submission that the claimant did not engage with the substance of the letter. The respondent then offered to pay for the claimant to get some legal advice. The respondent offered to contribute up to £500 plus vat for the claimant to get independent legal advice on the 8 August letter explaining why the claim did not have a reasonable prospect of success. The claimant did not take that opportunity up. He did not go back to the respondent to suggest that more money would be required. He did not request more time to arrange legal advice. We do not think he made any serious attempt to obtain legal advice. The claimant explained he made some efforts to obtain advice from a coaching organisation, Valla. But this was after the timescale the respondent had set for its offer, and it was unclear to us why the claimant proposed a coaching organisation rather than a lawyer who could advise him properly.[37]In our view the claimant could and should have obtained independent legal advice to assess the merits of his claim following the offer by the respondent. The claimant did not make reasonable attempts to get the legal advice which the respondent had offered to pay for. The claimant did not get any advice, he did not respond meaningfully to the points raised in the respondent’s letter and he did not accept the drop hands settlement.[38]The parties finalised preparations for the final hearing. Following disclosure and the agreement of the bundle witness statements were exchanged in late November 2023.[39]On 1 December 2023 the respondent sent the claimant a further costs warning letter. By that letter the respondent offered the claimant a further opportunity to settle the case on a drop hands basis. The respondent explained that following the exchange of evidence and witness statements it was clear that the claimant’s claim was without merit. The points identified by the respondent as to why the claim was bound to fail in their letter of 8 August 2023 were again set out and the claimant was again encouraged to take legal advice. The respondent said: “There is nothing in your evidence which advances the merits of your claim. Further, having regard to the disclosure you have provided we would again make the point that many documents do not comment on you but rather people 9 of 17 with autism generally. This is not relevant therefore to the question of whether anything [the respondent] did, or did not do, put you at a substantial disadvantage.”[40]The point about the generic nature of the evidence provided by the claimant and the fact that this did not assist with the crucial point of whether the claimant was put at a substantial disadvantage was relied upon by the tribunal in our liability judgment; it was part of our analysis which led to the claim being dismissed.[41]The claimant did not take the opportunity to take legal advice. He did not engage meaningfully with the issues raised by the respondent in their letter. He did not seek to address the deficiency identified concerning generic evidence. In our view it was clear that the claimant did not properly consider and reflect upon the points raised by the respondent. He was fixated solely on getting a financial settlement and that was what he proposed in response.[42]The claim proceeded to final hearing before us, and we dismissed all of the claims. The key factors in our decision were, in summary, as follows:42.1 Despite the fact that EJ Wedderspoon had found that the discrimination claim in respect of the 2020 application had little reasonable prospect of success and it had been struck out the claimant placed some reliance on his 2020 application as a matter of relevant background from which we could draw an inference of discrimination. We declined to draw any inference of discrimination based on the claimant’s 2020 application. The clear reason why the claimant’s application was not progressed in 2020 was because he was obviously unsuitable for the particular role that he had applied for at that time. It had nothing to do with disability.42.2 In respect of the claimant’s claim for direct disability discrimination a hypothetical comparator without the claimant’s disability would have been treated the same way i.e. they too would not have been successful in the application because Mr Banks would still be regarded as the best candidate. The claimant failed to prove any facts from which we could conclude that the treatment was directly discriminatory. The reason why Mr Banks was appointed over the claimant was not disability. The comprehensive evidence presented by the respondent showed that Mr Banks had been appointed because he was judged to be the best candidate. The claimant had failed to undermine that evidence in any meaningful way. The detailed reasons behind their decision were explained in the respondent’s evidence. The claimant did not establish any inconsistency or weakness in the respondent’s evidence relevant to this point.42.3 We observed that the claimant had provided a large amount of generic material, some of which discussed the type of adjustments which people with his disabilities may benefit from. However even that material itself made it clear that people with the claimant’s disabilities 10 of 17 are affected in different ways by the conditions and so what works for one person may not work for another. We felt that was an obvious and important point. Accordingly the generic evidence provided by the claimant did not assist him with establishing that he was put at a substantial disadvantage or that he required a certain type of adjustment. The claimant failed to provide sufficient evidence that he was put to a substantial disadvantage which would trigger the duty of the respondent to make reasonable adjustments for him.42.4 In the CV which the claimant was using at the time he made a disability disclosure in which he explained that he had been diagnosed with both dyspraxia and autism. He requested a specific reasonable adjustment which would be an oral application described as a 5 to 10 minute phone call to talk about his relevant experience. The claimant also asked for the essential criteria so that he could prepare his oral application accordingly. In his witness statement the claimant described the oral application as his opportunity to showcase his skills. He further explained that the reason why he requested an oral application is because he expresses himself better verbally than in writing and he didn’t want to be judged on what he wrote he wanted to be judged on what he said. The claimant applies for a large number of jobs, and he does not adapt his CV for the jobs he applies for. He saw the oral application as an opportunity to tailor an application to the skills which a prospective employer was looking for.42.5 The first PCP relied upon was that the claimant was in 2021 required to make a written job application. This PCP was not made out because the claimant was not required to make a written job application in 2021. The respondent’s usual application process was to require candidates to apply online and as part of that they would have to answer some questions and submit a CV. The claimant however was not required to go through that process. In 2021 the claimant was simply asked by Tina Woods if he would be interested in the role of research and development tax consultant and his application was progressed when he expressed an interest. Mrs Woods sent the claimant the details of that role, including a list of the key skills and experience that the respondent was looking for and he was invited to interview. The claimant effectively bypassed the written job application stage of the process. Mrs Woods did not require the claimant to make a written application, and she indicated no expectation that he should do so. The broader PCP of requiring external applicants generally to make a written job application did not put the claimant at a substantial disadvantage in 2021 because he was not required to comply with it.42.6 It was accepted by the respondent that they had the second PCP relied upon that in 2021 he was required to attend an interview. However we did not accept that the claimant was put at the claimed substantial disadvantage of being unable to articulate his skills and experience at an interview without adjustments, for these reasons: 11 of 1742.6.1 The claimant was not required to attend an interview without adjustments. Numerous adjustments were put in place for the interview as requested by the claimant. These included the interview taking place by phone, the questions being broken down, the opportunity being given to the claimant to request breaks or further clarification of any question and the interview topics being provided to the claimant in advance of the interview so that he could prepare. The respondent also agreed to the claimant’s request for the interview notes. These were all significant deviations from the respondent’s standard interview process. They meant that the claimant could engage fully in the interview.42.6.2 The claimant was not disadvantaged at all during the interview process. The evidence and in particular the contemporaneous interview notes showed that the claimant answered each question fully. He remained engaged throughout the interview right up to asking relevant questions at the end. At no stage did he need to ask for a break or for questions to be further clarified. The questions which the claimant were asked were straightforward. The respondent deliberately avoided complicated, multilayered or hypothetical questions. The claimant was able to and did answer the questions effectively.42.6.3 The claimant was asked in an open way to talk through his CV and to explain what he could bring to the role. Therefore the interview gave the claimant precisely the opportunity he had been seeking in his request for an oral application i.e. the opportunity to orally showcase his skills in the knowledge of the key skills which the respondent was looking for (he had already been sent these by Mrs Woods).42.6.4 The claimant had not identified a single question that he had difficulty answering and he had not identified a single piece of information which he had difficulty conveying at the interview.42.6.5 The claimant was able to articulate his skills and experience at the interview and he did so.42.7 The tribunal found that the lack of an auxiliary aid, namely a service that following a short oral application the claimant’s skills and experience relevant to the role would be written up and provided to the hiring manager in a form akin to a cover letter did not put the claimant at a substantial disadvantage in that he was unable to articulate his skills and experience in writing, because:42.7.1 The claimant did not complete an oral (or any) application. There was no need for him to do so. As we have explained, the claimant effectively bypassed the initial application stage and was progressed straight to interview by Mrs Woods. 12 of 1742.7.2 At the interview the claimant was given the precise opportunity which he had sought – i.e. to orally explain his relevant skills and experience directly to the hiring managers in the knowledge of the key skills the respondent was looking for (he had already been sent these by Mrs Woods). The claimant was able to, and did, explain the skills and experience which he considered relevant to the role directly to the hiring managers. There was a written record of this information available to the hiring managers in the form of the interview notes. The recruitment decision was taken in the full knowledge of the claimant’s relevant skills and experience. Conclusions[43]We find that the claim had no reasonable prospect of success from the outset. This claim was in our view bound to fail and it was unreasonable for the claimant to bring it. We have summarised our reasons for deciding that the claim failed above. In light of those we consider the claim was always inherently weak to the point where it had no reasonable prospect of success. We found that those were matters which were obvious and should have been evident to the claimant from the outset. We consider that in making this assessment we are in a better position than EJ Wedderspoon who could only assess the case on a summary basis before disclosure and exchange of statements and was obliged to take the claimant’s case at its highest. In blunt terms it transpired that the claimant did not have the evidence to substantiate the claims which EJ Wedderspoon considered should be resolved on the evidence. There was in fact no cogent evidence to support the claimant’s claims of discrimination. The claimant must have known that from the start.[44]We find that the claimant conducted the proceedings unreasonably in pursuing his claim following the two costs warning letters provided by the respondent. These letters clearly set out the fatal flaws in the claimant’s case. As we have observed the respondent's analysis was effectively repeated when the tribunal made its decision. The claimant should have realised that his claim was bound to fail after having received these warning letters.[45]We think the unreasonable nature of the claimants conduct is highlighted by the fact that he did not take up the opportunity which was offered to him by the respondent of obtaining independent legal advice at the respondent’s cost. Furthermore, we agree with the respondent that the claimant failed to engage with the substance of the costs warning letters. Instead he was focused only on obtaining a financial settlement and was prepared to run the case to trial without the evidence to support if he didn’t get a financial settlement.[46]In our view the claimant did not apply his mind to the matters raised in the costs warning letters. He certainly should have known the claim had no reasonable prospect of success had he read and considered them properly. Our overall impression, which is supported by the claimant’s tendency in this litigation to rely overly on generic or AI generated material, is that the claimant devoted little 13 of 17 time or effort into this specific claim and that was why he did not engage with the substance of the costs warning letter or take steps to address the deficiencies which were pointed out to him. We observe in particular that the claimant failed to address the deficiency that the respondent had pointed out in providing generic evidence on the basis that it did not establish that the claimant was put at a substantial disadvantage. In our view this demonstrates the point that the claimant had failed to engage with the substance of the respondent’s costs warning letters. This supports our finding of unreasonable conduct.[47]As the previous judgments relied upon by the respondent in the bundle show this claim was part of a pattern of conduct by the claimant where he brings large numbers of claims in order to obtain settlements regardless of whether or not there is any merit in the individual claims. One of the previous judgments described the claimant as “taking a litigation factory approach”. This rang particularly true with us since as we have explained the claimant had not properly engaged with the merits of this claim as he was just focused on getting a settlement. This context reinforced out finding of unreasonable conduct.[48]In deciding that the threshold for making a costs order had been reached we took into account the claimant’s status as litigant in person. Although the claimant is a litigant person he is an unusually experienced litigant in person because he brings a lot of tribunal claims and therefore knows a lot about the tribunal process. We also took into account the claimant’s disabilities. Although the claimant’s disabilities no doubt cause him some challenges they do not excuse or explain his decision to pursue this plainly unmeritorious claim. The claimant is an intelligent and highly qualified person. The claimant’s experience of litigation including the fact that costs order have been made against him previously means he should have been well aware of the need to carefully consider the merits of his claim and only pursue it if it had a reasonable prospect of success. The deficiencies in the claimant’s case were obvious and had been spelled out to him by the respondent in their costs warning letters. In those circumstances we found that the claimant’s status as a disabled litigant in person did not affect our view that the threshold for making a costs order had been reached.[49]We turn next to the question of whether to exercise our discretion to award costs. In all the circumstances of the case we concluded that it was appropriate to exercise our discretion to make an award for costs, for the following reasons:49.1 We took into account the claimant’s means and in particular the information which the claimant set out in a “comprehensive financial summary” which was in the bundle. The claimant has an online business which he says generates sales of 18k a year. The company also has assets. In addition the claimant generates income from rental properties, from a state benefit and from shares. Furthermore, the claimant either owns outright or has a significant interest in a number of properties and this means he has money available in the form of equity. The claimant accepts that his assets outweigh his liabilities by £190365. 14 of 17 The claimant therefore has sufficient means to meet an award for costs not exceeding £20,000.49.2 The claimant is a serial litigant who is well aware of the tribunal process and in particular of the need to make sure that he only pursues claims which are meritorious.49.3 The claimant’s pattern of conduct in bringing unmeritorious claims and his litigation factory approach as we have explained above.49.4 The claimant had not paid proper attention to the costs warning letters which had been sent by the respondent. He had ignored the rationale which had been included within those letters as to why his claims were bound to fail. The claimant had not applied his mind to the prospects of this particular claim succeeding. As a result the respondent has been required to defend the claim when it had done nothing wrong and as our findings above demonstrate it had actually accommodated the adjustments the claimant was seeking. Further, the respondent had taken all reasonable steps to encourage the claimant to withdraw his claim, particularly the two detailed costs warning letters and the offer to pay for legal advice. In our view this all made the unreasonable conduct of pursuing the claim past the point of the costs warning letters particularly serious.49.5 We took into account the claimant’s status as a litigant in person. However as we have mentioned the claimant is a particularly savvy and intelligent litigant and the matters which showed why his claim was misconceived were obvious and were spelled out to him in the costs warning letters in any event.49.6 We took into account the claimant’s disabilities. However and as we have already explained the unreasonable conduct in this case and in particular the claimant’s decision to pursue a plainly unmeritorious claim even when the flaws in the claim were spelled out to him cannot be attributed to the claimant’s disability. The conduct was instead in our view attributable to the claimant’s litigation tactic of blindly pursuing a case until he is either required to pay a deposit or receives a financial settlement.49.7 The claimant is well educated, highly qualified and he has worked in senior roles. He is able to bring and manage lots of employment tribunal claims. If he is dissatisfied with the outcome the claimant is able to apply for reconsideration and appeal. He represents himself and has done so successfully in the tribunal and the appeal tribunal. In that context we did not accept any suggestion that the claimant had been unable to grasp the straightforward implications of the costs warning letters, even taking into account the claimant’s disabilities. The claimant had plenty of time to digest the contents of the costs warning letters, but he still proceeded to trial 7 months later. As we have explained our finding was that the claimant did not pay sufficient attention to them 15 of 17 because of the lack of focus he had on this case. This is related to the claimant’s factory style approach to litigation and not his disabilities.49.8 The respondent had been put to substantial time and cost as a result of the claimants unreasonable conduct and misconceived claim.[50]We turned finally to the amount of a costs order. We considered the following factors:50.1 We again took into account the claimants means. As we have observed the claimant does have sufficient means to pay a costs order not exceeding £20000. We are aware however that the claimant has other costs awards to pay, and he therefore may need to sell some of his assets in order to meet his liabilities. We therefore did not think it would be just and equitable to require the claimant to pay the maximum of £20000.50.2 The respondent was not seeking to recover the whole costs of the litigation, as their application was limited to counsel’s fees. In light of EJ Wedderspoon’s decision we would not have been minded to award the whole costs of the litigation in any event. In our view the unreasonable conduct in this case which merited an award of costs was the claimant’s continuation of the claim after the costs warning letters.50.3 We therefore decided that we should not award costs incurred prior to 1 December 2023. That was the date of the respondent’s second costs warning letter. By that stage disclosure had been completed and witness statements had been exchanged. The respondent had spelt out the fatal flaws in the claimant’s case with reference to the evidence which had been exchanged. By that stage the claimant certainly ought reasonably to have known that the claim had no reasonable prospect of success, and it was unreasonable for him to continue the case.50.4 We decided that it would not be appropriate to require the claimant to have to pay the fees which had been incurred as a result of the first final hearing which had to be postponed. The first final hearing was postponed because the tribunal did not have enough judicial resource. This was unfortunate and it was not something that was the fault of the claimant or was attributable to him in any way. In our view it would not be just and equitable to require the claimant to pay counsel’s fees incurred solely as a result of the tribunal postponing the first hearing.50.5 Counsel’s fees for the four day final hearing in July 2024 were £14000 exclusive of VAT. This was made up of a brief fee of £8000 and 3 refreshers of £2000. In our view these costs were reasonably and necessary incurred. They were not high given the circumstances and nature of the case. 16 of 1750.6 Stepping back and considering all the circumstances it seemed to us that £14000 was the amount which was proportionate, just and fair to order the claimant to pay. These costs were incurred because of the claimant’s unreasonable conduct in pursing a claim which he ought to have known had no reasonable prospect of success after the costs warning letters, ample time to reflect and the opportunity to obtain legal advice.[51]We therefore order the claimant to pay the respondents costs summarily assessed in the sum of £14,000.