Mr J DaleGrieh v App Tech Development Ltd (Metawin): 1305693/2024

EMPLOYMENT TRIBUNALS

Case No 1305693/2024

Between

Mr J DaleGriehClaimant

App Tech Development Ltd (Metawin)Respondent

Before

Employment Judge Edmonds

In person for claimant

Mr S Forshaw KC (instructed by counsel) for respondent

Date 20 June 2024

JUDGMENT

[1]The respondent’s application for a costs order against the claimant is refused.

REASONS

[1]This was a costs hearing relating to an interim relief application which was heard on 20 June 2024. That interim relief application was refused, for reasons given orally at that hearing.

[2]This costs hearing relates to the costs associated with the claimant’s interim relief application only, and does not address the position of costs more generally. If the respondent intends to make an application for any costs more generally, that will need to be made by way of separate application.

[3]The costs application was made by application dated 16 August 2024 (page 162). The respondent applied for a costs award of up to £116,384 (and therefore, if a costs award was made, detailed assessment may be required).

[4]Although the application requested that this be considered without the need for a hearing, the claimant requested a hearing and I decided that it would be in the interests of justice to convene a hearing. This would enable the claimant to give evidence, including on his ability to pay any costs award.

[5]I was presented with a file of 298 pages and page references in these Reasons are to the relevant page of that file, unless otherwise stated. I was also presented with a witness statement from the claimant, a 54 page authority bundle and a skeleton argument from the respondent’s representative.

[6]During the hearing the claimant gave oral evidence: he was in Bulgaria but had verified in advance that no separate permission was required to give evidence by video from that country. The claimant requested permission to supplement his written evidence with additional oral evidence to explain why he had made the application for interim relief and regarding why he did not accept the respondent’s settlement offer prior to the interim hearing. Although the respondent’s representative objected to this, I decided that it was in the interests of justice to allow it: the claimant was a litigant in person who had not understood what was missing from his statement until he saw the respondent’s representative’s skeleton argument for this hearing. I also noted that I had planned to ask the claimant about these matters myself in any case as they were clearly relevant to the issues to be determined.

[7]There were also separate issues relating to an amendment application and an application for strike out / deposit order, and the next steps in relation to those have been set out in a separate Record of Preliminary Hearing dated 28 February 2025.

Issues to be Determined

[8]The basis upon which the respondents make their application for costs is that:a. The claimant had acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing and continuing with the Interim Relief Proceedings which were misconceived and an abuse of process; and/or

b. That the Interim Relief Proceedings had no reasonable prospect of success from the outset, such relief ultimately being refused and dismissed.

[9]In respect of each of these, the issues that the Tribunal has to consider are:a. Are the thresholds set out at paragraph 8 above met?

b. If so, is it appropriate to make an order that the claimant be required to pay some or all of the respondent’s costs associated with the Interim Relief application?

c. If so, how much (or, if the figure may exceed £20,000, what percentage of the respondents’ costs should be awarded, with the final figure being determined through detailed assessment)? Basis of the Respondent’s Application

[10]The respondent relies on the following arguments in support of its assertion that the claimant acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing and continuing with the Interim Relief Proceedings, and/or that it had no reasonable prospect of success:a. That, as the claimant had already resigned before he was dismissed, his application would never have resulted in relief up to the determination of the matter at final hearing as his employment would have ended anyway at the end of his one month notice period;

b. The claimant had not argued that his resignation amounted to a constructive dismissal (and he would lack the requisite two years’ service to do so);

c. The claimant clearly had no desire to be reinstated or re-engaged given his resignation;

d. The application was an attempt to cause disruption to the respondent;

e. The claimant had been sent a letter on a Without Prejudice Save as to Costs basis on 11 June 2024 which had offered him a payment equivalent to the remainder of his notice period, plus an ex gratia payment of two months’ gross pay. The respondent says that this is the amount of loss set out in the claimant’s claim form. The claimant did not accept that offer, despite having been told that the respondent intended to rely on it in support of a costs application to recover the whole of its legal costs;

f. That the respondent had incurred significant legal costs in defending the Interim Relief Proceedings, amounting to approximately £116, 200; and

g. That granting the costs application would be in accordance with the Overriding Objective including dealing with cases fairly and justly.

Facts

[11]The claimant was employed by the respondent between 4 January 2023 and either 28 or 29 May 2024 (a matter of dispute between the parties). The respondent is a company which appears to provide services to other companies, including Metawin. The services it provides are to operate competitions, akin to raffles, and secondly an online casino. This includes the use of cryptocurrencies.

[12]The claimant submitted a resignation letter on 28 May 2024, intending to resign on notice, however he was then expressly dismissed by the respondent either later that day or the following day on the basis that he had committed serious misconduct because he had “shared inaccurate and completely unfounded allegations of financial misconduct by our shareholder and Group CEO with members of the team following your resignation…” (page 112). He says that he was dismissed because he made protected disclosures (relating to the respondent’s use of a “hot wallet” and the way that customer funds were being used). At the time of the interim relief hearing, the respondent had not yet submitted its response to the claim, however it now has and it asserts that the matters referred to by the claimant were not protected disclosures, that the principal reason for dismissal was gross misconduct and that in any case the claimant had already resigned prior to his dismissal. The respondent therefore says that any losses must be limited to what would have been his notice period.

[13]The claimant submitted a claim to the Employment Tribunal on 31 May 2024 (page 9). In that claim form he ticked the relevant box at section 2.3 to state that “My claim consists only of a complaint of unfair dismissal which contains an application for interim relief”. In section 8.2 of his Claim Form he asserted that he had been terminated for accusations of “Financial Misconduct” and said that he had raised serious concerns about the respondent’s business operations and that consequently he had been dismissed.

[14]During the costs hearing, I asked the claimant why he had applied for interim relief. He explained that he acknowledged that re-engagement would not be good for either party but that what he wanted was to preserve his contractual benefits which he said he reasonably believed he was entitled to. He also said that he did not understand at that time what constructive dismissal was or how much he could write in his claim form. He said that he admitted that his claim form was “pretty poor and vague”. Later in his evidence, he also said that he did not think that his resignation would be effective as the respondent had not accepted or acknowledged it.

[15]In my finding on this point, I am mindful that a different judge will have to make findings in due course about the content of the claim form in relation to the application to amend, and therefore I restrict my comments to those necessary to determine the interim relief application. I find that the claimant thought that by applying for interim relief, he would be able to preserve his contractual benefits but that he did not in fact want his job back or another job within the respondent.

[16]In section 9.2 of his claim form he set out the compensation or remedy that he sought, specifically that: “I want to claim £22,500 for work lost, which is the amount I will lose from not being paid my notice period (£7,500) and two months of work (£15,000), which could be affected by the fact that the gross misconduct termination may result in difficulty finding new work. I also want to claim back for emotional distress caused by the CEO, where I had threats made against me if I was to continue being “malicious” and was told to “be a man” stop acting like a “12 year old” for not speaking to him directly about the matter, after many months of him not listening, insulting my intelligence and disregarding my advice, which resulted in poor performance and losses. He has been allegedly vilifying me ever since I have lost visibility of company communication channels and avoiding the reasons why I have actually left the business, to make me look bad for the actions I took, which makes me feel anxious about the perception the rest of the company and team have of me, when I was trying to protect the business. I would also like to see the allegations of financial misconduct investigated thoroughly amongst the other concerns I had raised at the same time, which was the fact that in the recent weeks, a VIP client had been reinstated early by the CEO despite being self-excluded on the week commencing 6th May 2024. These “claims” were completely ignored and not mentioned by the company in the result of my termination, despite having as much as weight if not more than the other concerns I had raised, which makes it clear to me that it was a valid concern that breaches the Curaçao’s Licence policies on protecting players.”

[17]I find that, whilst the claimant has asked for £22,500 in compensation, the remedy he is seeking goes beyond that, in that he is also requesting payment for emotional distress and for other matters to be investigated. Whilst I accept that these are not things that the Tribunal can order by way of remedy for automatic unfair dismissal, nevertheless he is seeking them and he is a litigant in person who is likely to be less familiar with the way in which compensation is calculated.

[18]Shortly after the claimant submitted his claim form (although the claimant did not allege that Mr Skelhorn would have known of his claim form at that point), the claimant received a separate pre-action email in relation to potential legal proceedings against him by the respondent and/or Mr Skelhorn (CEO of Metawin, which appears to be connected in some way to the respondent and the claimant appeared unclear as to whether Mr Skelhorn was also CEO of the respondent or not). He also referred to being sent a letter warning of potential legal action in relation to the return of his company equipment, which he said the respondent knew would be impossible for him to do as the respondent knew that he was abroad at that time and could therefore not return it to Mayfair in the timescale given to him.

[19]The respondent wrote to the claimant by letter dated 11 June 2024, marked “Without Prejudice Save as to Costs” (page 118). In this letter the respondent’s representative said that the respondent was prepared to make a financial offer of settlement with no admission of liability in order to avoid the time and cost that would be incurred in defending the claim. The financial offer was payment of the remainder of his notice period and an extra gratia payment of £15,000, being two months’ gross pay. This therefore in effect amounted to the £22,500 sought by the claimant in section 9.2 of his claim form. This would be subject to him entering into a validly executed settlement agreement in full and final settlement of all and any claims. The offer was said to be open for acceptance until 5pm the following day, following which it would be withdrawn without further notice. The claimant was informed that, if he did not accept it, the letter would be relied upon in support of a costs application to recover the whole of the respondent’s legal costs on the basis of him acting unreasonably. He was told that the legal costs were estimated to be £50,000 plus VAT and disbursements. The letter ended by recommending that he instruct a legal adviser “to move settlement forward”.

[20]I find as follows in relation to this letter:a. Whilst the legal costs set out are stated to be an estimate for the interim relief proceedings generally, and whilst the opening section of the letter includes the words “We refer to the interim relief application…”, the overall content of the letter is about the claim more generally and not specifically the interim relief aspect of the case;

b. The letter does not go into any detail about the merits of the claimant’s claim or the merits of his interim relief application (save for setting out a general denial of the allegations), the focus is on the costs incurred. Therefore, particularly as a litigant in person, this letter would not have indicated to him that the respondent’s position was that his interim relief application was in any way misconceived.

[21]The interim relief hearing took place on 20 June 2024. Before the parties made their submissions we had a short adjournment as it transpired that the claimant had not yet read the respondent’s skeleton argument which had been sent to him the day before, saying that there was so much material sent to him that it had been physically impossible to go through it all. At the interim relief hearing the claimant indicated that his resignation was in itself potentially related to protected disclosures. I told him that this was not in his claim form and subsequently I understand that he has both sought to amend his claim and also has brought a new claim in relation to those matters. What happens in relation to that will be considered at a future public preliminary hearing.

[22]Having heard submissions from both parties, I refused the application for interim relief at the hearing on 20 June 2024. In particular I found that there were significant areas of dispute between the parties, both in relation to whether or not there was a protected disclosure, and in relation to the reason for dismissal. On that basis I held that it could not be said to be likely that the claimant would succeed in showing that the principal reason for dismissal was that he had made a protected disclosure, as this would need to be explored in evidence. In essence, without hearing evidence from both parties, I would be unable to assess the likelihood of the claimant establishing this, and it would not be appropriate for me to hear that evidence at an interim relief hearing. Therefore the application was refused.

[23]The claimant did not appeal my decision to refuse interim relief. I find, based on the evidence I heard, that whilst the claimant chose not to appeal, he did think prior to the interim relief hearing that it had a reasonable chance of succeeding.

[24]The respondent then submitted the costs application relating to the interim relief proceedings on 16 August 2024.

[25]During the interim relief hearing I heard evidence about the claimant’s financial means, and I find as follows in that regard:a. The claimant does not own his house: he lives in the UAE in his girlfriend’s property and in the UK in a property owned by his grandmother;

b. However, he has considerable assets, including five luxury cars which have a combined value somewhere in the region of £150,000 and a luxury watch.

c. The claimant has no outgoings other than tax: his utility bills are paid for by others for example.

d. The claimant does not currently have a job. Whilst he made a comment during his departure from the respondent to the effect that he had job offers, that was not the case.

e. His lifestyle is such that his income and expenditure fluctuate significantly. For example, in January 2025 he had only £231.06 in his Revolut bank account (page 188), however in the months between the submission of his claim form he had around £188,000 entering the account and about £188,000 being spent from the account, including on hotels in a wide range of countries around the world, designer clothes and a luxury car. He also provided a screenshot from a separate cryptocurrency trading platform which had $829.39 (page 273). I find that the claimant had a practice of moving money between his regular bank account and his cryptocurrency account, depending on the currency values and his intended purchases at any given time. His cryptocurrency platforms are subject to regular fluctuations given the fast growth and deterioration that can happen with those types of currency.

f. The claimant accepts that his lifestyle is one where large sums of money have been coming in and out of his account, and he estimates that in the past 5 to 6 years he has spent over £1million. He referred to himself as having “new generation money”. He says that whilst he has lived an extravagant lifestyle in recent times, he needs funds in the bank to be able to speculate on the cryptocurrency market and therefore to make money: in essence he says that he has now depleted his funds (at least in part due to what he referred to as bad luck with cryptocurrency investments in late 2024, along with his lack of income due to his dismissal) and therefore does not have the residual funds to speculate and therefore his expectation is that he will not be able to maintain that lifestyle.

g. Overall however, I find that whilst the claimant may currently have depleted funds and is borrowing money from others such as his girlfriend, given the volatility of the cryptocurrency market and the likelihood that at some point in time he will have better luck with investments, on the balance of probabilities I find that over time he is likely to be able to increase his funds again: if he were confident he could not do so I find that he would not have continued his expenditure at the level he did between the submission of his claim form and January 2025.

Law

[26]Since the costs application was made, the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 have been replaced by The Employment Tribunal Procedure Rules 2024 (“the ET Rules”). Therefore we apply the provisions of the ET Rules in reaching our decision.

[27]Rule 74 of the ET Rules provides (so far as relevant):(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.

(2) The Tribunal must consider making a costs order or a preparation time order 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 of it, or the way that the proceedings, or part of it, have been conducted b) the claim, response or reply had no reasonable prospect of success, or c) …. These are sometimes referred to as the threshold tests for an award of costs.

[28]Rule 75 of the ET Rules provides:(1) A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.

(2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order).

[29]Rule 76 of the ET Rules addresses the amount of a costs order, as follows (so far as relevant):(1) A costs order may order the paying party to pay – a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined – i. 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 the Tribunal applying the same principles; ii. ….. c) …. d) ….

(2) …..

(3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000.

[30]Rule 82 of the ET Rules provides: In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay. Therefore the Tribunal has some discretion as to whether or not to take into account the claimant’s ability to pay. However, if the Tribunal does not take it into account, it should give its reasons for not doing so (Jilley v Birmingham and Solihull Mental Health NHS Trust

UKEAT/0584/06

and

UKEAT/0155/07

[31]Although the threshold tests are the same whether or not a party is legally represented, a litigant in person should not be judged by the standards of a professional representative (AQ Ltd v Holden [2012]

UKEAT/0021/12/CEA

[32]When considering the question of unreasonable conduct, “unreasonably” should be given its ordinary English meaning and the Tribunal should take into account the nature, gravity and effect of the party’s conduct (although not necessarily separated into individual sections) (Dyer v Secretary of State for Employment [1983] UKEAT 183/83 and Yerrakalva v Barnsley Metropolitan Borough Council and anor

2012 ICR 420

, CA). A party’s conduct as a whole may amount to unreasonable conduct and making unsubstantiated allegations is capable of amounting to unreasonable conduct (Sahota v Dudley Metropolitan Borough Council EAT 0821/03). Every aspect of the proceedings is relevant, however the Tribunal should bear in mind that there may be more than one reasonable course of conduct to take (and must not substitute its view) (Mrs S Solomon v University of Hertfordshire and Hammond

UKEAT/0258/18/DA

[33]“Vexatious” amounts to more than being misguided (AQ Ltd v Holden

2012 IRLR 648

, EAT). Vexatious conduct may occur where a hopeless claim is pursued out of spite to harass an employer or for an improper motive (ET Marler Ltd v Robertson

[1974] ICR 72

). The effect of the conduct is also relevant: as per Lord Bingham CJ in A-G v Barker

[2000] 1 FLR 759

: “”Vexatious” is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.

[34]The key question is not whether a party believed their claim had prospects of success, but whether they had reasonable grounds for doing so (Scott v Inland Revenue Commissioners

2004 ICR 1410

, CA). The Tribunal should assess whether the claim had no reasonable prospect of success based on the information that was known or reasonably available at the time (and not take into account information that only came to light at a later stage). Even if there are disputes of fact, that does not mean that the Tribunal cannot conclude that there were no reasonable prospects of success at the outset (or that the claimant should reasonably have known that), as this will depend on what the claimant knew or ought to have known what the true facts were (Radia v Jefferies International Ltd EAT 0007/18 and Vaughan v London Borough of Lewisham and ors

2013 IRLR 713

EAT). In Millin v Capsticks Solicitors LLP [2014]

UKEAT/0093/14

it was held (at paragraph 67) that: “[w]here a claim is truly misconceived and should have been appreciated in advance to be so, we see no special reason why the considerable expense to which a Respondent will needlessly have been put (or a claimant in a case in which a response is misconceived) should not be reimbursed in part or in whole”.

[35]The question of whether a claim had no reasonable prospects of success may overlap with the question of unreasonable conduct (Opalkova v Acquire Care Ltd [2021]

UKEAT/0056/21

). There are three key questions: a) Did the complaints have no reasonable prospects of success? b) If so, did the claimant know or appreciate that? c) If not, ought they reasonably to have known or appreciated that? The Tribunal must consider each claim brought by the claimant.

[36]Where the threshold test under Rule 74 of the ET Rules has been met for an award of costs, it is still necessary for the Tribunal to decide whether to exercise its discretion in favour of the receiving party, having regard to all the circumstances (Yerrakalva, above). In essence it is a three stage test:a. Has the costs threshold been met?

b. Does the Tribunal consider it appropriate to exercise its discretion to award costs, having regard to all the circumstances?

c. If so, what award is made (or what percentage of the party’s total costs is to be awarded if the matter is to be referred on for detailed assessment)?

[37]Whether or not a costs warning letter was sent is relevant but not determinative: the weight it should be given will depend on the circumstances of the case (Vaughan, above and Rogers v Dorothy Barley Schol EAT 0013/12). Refusal to accept a settlement offer can be taken into account (Kopel v Safeway Stores

[2003] IRLR 753

[38]Costs are intended to be compensatory rather than punitive, and are limited to those reasonably and necessarily incurred by the other party. They are the exception and not the rule (Yerrakalva, above).

[39]A precise link between the unreasonable conduct and the costs incurred is not required (D’Silva v NATFHE

[2009] UKEAT 0126/09

and Salinas v Bear Stearns International Holdings Inc and anor

2005 ICR 1117

, EAT). In Sud v Ealing London Borough Council 2013 ICR D39, CA, it was held that the process did not entail a detailed or minute assessment, but rather a broad-brush approach taking into account the relevant circumstances.

[40]When taking into account ability to pay, this should include assets as well as income. A costs award can be made even where a party cannot afford to pay it immediately (Vaughan, above) and the possibility that the party’s financial circumstances may improve in future can be taken into account (Chadburn v Doncaster & Bassetlaw Hospital NHS Foundation Trust

UKEAT/0259/14/LA

[41]Whilst it is in the interests of justice that the Tribunal which dealt with the liability hearing should also deal with the question of costs, that Tribunal must ensure that it has not expressed itself in a manner which tends to demonstrate that it has already made up its mind not only on the liability issues but also in relation to the issues relevant to costs. However, the fact that the Tribunal has made comments adverse to the claimant in its decision on liability (including in relation to credibility) is not a ground for recusal and the fair minded and informed observer would not take them as indicative of bias (Oni v NHS Leicester City

UKEAT/0144/12/LA

). Interim Relief

[42]The threshold for granting interim relief is a high one: it will only be granted if it appears to the Tribunal that it is likely that on determining the complaint the Tribunal would find that the reason or principal reason for dismissal was a protected act (section 129 of the Employment Rights Act). “Likely” in this context means “pretty good chance of success” (Taplin v C Shippam Ltd

1978 ICR 1068

, EAT). This is a higher burden than applies at the final hearing, and means “something nearer to certainty than mere probability” (Ministry of Justice v Sarfraz

[2011] IRLR 562

). The Tribunal’s assessment is based on the material available to it, without there being oral evidence unless the Tribunal orders otherwise. Conclusions No Reasonable prospect of success

Conclusions

[43]I address this issue first, as this is also relevant to the question of whether the claimant acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing of the interim relief proceedings or the way they were conducted.

[44]I bear in mind that at the point of the claimant’s claim form (i.e. when he made the application for interim relief), he would not have known what response the respondent would put forward to his complaint. He would have known that his dismissal was shortly after his resignation and shortly after the things that he says were protected disclosures. He is a litigant in person. Whilst we now know that the respondent does not accept that they were protected disclosures, he did not know that at that time. Therefore, I conclude that at the point of putting in his claim form that he wanted interim relief, he did have some reasonable prospect of success in that application. To be clear, I make no finding as to whether his claim as a whole had any reasonable prospect of success (and/or if so, whether he should have known that): that is a separate question and one that I cannot answer based on the information I have and without impacting on the future conduct of this case.

[45]However, the night before the hearing he was sent the respondent’s skeleton argument and he was also sent a witness statement from the respondent which was ultimately to form the basis of its future response to the claim. That witness statement was dated 17 June 2024 although I do not know when the claimant had sight of it. Whilst the claimant is a litigant in person, he was capable of reading those documents and understanding from them that the respondent disputed the factual basis of his claim. At that stage, given that there were clear factual disputes, I conclude that his application for interim relief had no reasonable prospect of success.

[46]Importantly, at the point of the costs warning being issued, I conclude that his application did have some reasonable prospect of success, as the respondent had not at that stage indicated what its response to the claim would be. Whilst we now know that there are arguments to be had about whether or not he made a protected disclosure as well as the reason for resignation, the claimant did know at that stage that his dismissal was linked to comments he had made about alleged financial misconduct (as that was in his dismissal letter), albeit the respondent’s position in that letter was that those allegations were inaccurate and unfounded.

[47]In relation to the fact that the claimant had already resigned and did not want his job back, that does not as a matter of principle mean that his application could not be successful (although there would be complex considerations about how long his re-instatement would then last). This is however relevant to my considerations below about the claimant’s conduct in bringing these interim relief proceedings.

[48]Overall therefore, I find that it was from the point when Hannah Westley’s witness statement was prepared on 17 June 2024, that the application for interim relief had no reasonable prospect of success. This is because at that stage, the respondent’s intended defence to the claim was set out, and in particular it became clear that there were factual disputes which were not capable of being determined as part of the interim relief application. Flowing from that, the claimant then had no reasonable prospect of being able to show that he was likely (in the context of pretty good chance of success) to succeed at the final hearing. Vexatious / Abusive / Disruptive / Otherwise Unreasonable Conduct

[49]Having concluded that the interim relief application had no reasonable prospect of success from 17 June 2024, I now consider whether the claimant’s conduct in making and/or continuing with the interim relief application amounted to vexatious, abusive, disruptive or otherwise unreasonable conduct.

[50]The claimant is a litigant in person and I do not hold him to as high a standard as I would a legally represented person. He is nevertheless intelligent and capable of understanding concepts that are explained to him.

[51]At the point of making his interim relief application, as explained above I have concluded that it did not have no reasonable prospect of success. However, I have concluded that it did have no reasonable prospect of success from 17 June 2024 once the respondent set out what its defence to the claim would be. I am not clear whether the claimant received the statement on 17 June 2024 or at a later date between that date and the hearing on 20 June 2024. However, from that point, it would have been apparent to him that the respondent intended to defend the claim rigorously and that there were factual areas of dispute.

[52]However, as a litigant in person, I do not consider that he would have known from the witness statement that the fact that there were factual areas of dispute meant that he was bound to be unsuccessful in his application. This is an unusual area of law and it would not necessarily be obvious to a litigant in person (even an intelligent litigant in person capable of understanding concepts and using the internet to carry out basic research) that the mere fact that there is a factual dispute means that he is highly unlikely to succeed in his application.

[53]The respondent’s skeleton argument which was sent to him at 4.51pm the day before the interim relief hearing had a clear section explaining the legal test to be applied. Upon reading this I conclude that he ought reasonably to have known that his application for interim relief had no reasonable prospect of success. However, I also note that the claimant did not in fact read that skeleton argument until the day of the hearing and therefore he did not in fact know that until he read it. Whilst I accept that the claimant was sent a lot of documentation at short notice before the hearing, this was a key document and notwithstanding that he was a litigant in person I find that he should have realised the importance of reading this document before the hearing commenced (even if he did not have time to read the other documentation). Therefore, I conclude that from the evening of 19 June 2020 the claimant ought reasonably to have known that his application for interim relief had no reasonable prospect of success.

[54]As to whether he acted vexatiously, abusively, disruptively or otherwise unreasonably in continuing with the application from that point, I note that by this time the settlement offer had been withdrawn (under the terms of the costs warning) and therefore he faced a potential costs application whether or not he proceeded with the hearing. Likewise, a Judge had already been allocated to conduct the case and the Tribunal offices would by then have been closed. Therefore, even if he had read the skeleton argument that evening, that would not have prevented the full legal costs of the interim relief application being incurred by the respondent. In those circumstances from his perspective, even when he read the skeleton argument the following morning, there was nothing to be gained by him withdrawing his application at that point. He was already there in the Tribunal and the hearing had started. Taking into account the nature, gravity and effect of the conduct, I do not find that his conduct in not withdrawing the application at that stage was vexatious, abusive, disruptive or otherwise unreasonable.

[55]As to whether his conduct in pursuing an interim relief application when he had in fact resigned shortly before his dismissal in any case amounted to vexatious, abusive, disruptive or otherwise unreasonable conduct, on the face of it this certainly is unusual and does raise questions about what the point of the application was. Theoretically, yes it could have been granted by the Tribunal (subject to the point above about reasonable prospects), but if it was, what then? His employment was due to end one month after his dismissal in any event, whereas what he was applying for was a process by which the intent is to re-instate the employee pending determination of the case (which would go beyond the date of his resignation). The claimant has made it clear that he did not want his job back: what he wanted was a continuation of his contractual benefits. This is certainly not what an interim relief application is supposed to be about: it is supposed to be about stopping a dismissal from taking effect pending the outcome of the case. The application for interim relief was in reality totally misconceived.

[56]The respondent says that the purpose of the interim relief application was to put the respondent to the cost of defending it rather than for any proper reason, and therefore it was vexatious and abusive. I do not conclude this to be the case. Whilst I have found that it was misconceived, I consider that the claimant had fundamental misunderstandings about interim relief and about the way that this worked, and about the impact of his resignation on it. I have not made any finding that the purpose of the application was to put the respondent to cost: I consider the claimant’s purpose to have been to try to secure monetary compensation for what he says is an automatic unfair dismissal. In those circumstances, whilst his application was misconceived, it was not vexatious, abusive or disruptive. As to whether it was unreasonable conduct, I refer to my conclusions above that it was only from the point at which he was told what the respondent’s defence to the claim would be (in the witness statement) and the legal reason why his application for interim relief should fail (in the skeleton argument) that he should have known that his application was misconceived: therefore up to that point there was no unreasonable conduct. I have addressed above my conclusions on whether it was unreasonable for him to continue with his application at that point given that by then it was after the end of the working day before the hearing (I have concluded that it was not).

[57]I have also considered whether the claimant’s failure to accept the settlement offer amounted to acting unreasonably in the conduct of proceedings. I conclude that it was not unreasonable conduct on his part. In this regard, I note:a. At that time the claimant was also subject to other pre-action letters in relation to other matters from another law firm. From his perspective, he considered it to be part of a strategy from the respondent;

b. The costs warning was general in nature. Whilst it said that it referred to his interim relief application and to the costs incurred in defending it, it contained nothing setting out why he would be unsuccessful in that application (as opposed to his claim more generally). What is said was that the respondent denied that he made protected disclosures and that it denied that he was dismissed because of them. It did not explain why he was bound to fail the legal test that would be applied to his interim relief application.

c. He was only given 24 hours to consider the settlement offer. Whilst things do have to move quickly in interim relief proceedings and therefore I do not criticise the respondent for putting a brief timescale on the offer, equally I do not criticise the claimant for not accepting an offer which would require him to enter into a settlement agreement settling all claims against the respondent with only one day to agree to do so.

d. The respondent’s position is that the settlement offer was for the full value of his claim. Whilst that is correct insofar as the financial sums set out in monetary terms in section 9.2 of his claim form have been included, his section 9.2 went beyond those things, seeking additional compensation and other non-monetary matters (albeit the Tribunal would not be able to give him those things). The first threshold

[58]Taking into account all of the above, I conclude that the threshold under Rule 74 of the ET Rules has been met, but only in relation to him having no reasonable prospect of success from the point at which the witness statement from the respondent was prepared. I do not conclude that there was vexatious, abusive, disruptive or unreasonable conduct as set out above. Discretion as to whether to make a costs award

[59]I next consider whether to exercise my discretion to make an award of costs. I have taken into account the fact that the claimant was a litigant in person.

[60]I take into account that a costs warning was issued, but also take into account the other points I have made above about that costs warning.

[61]In relation to the claimant’s means, whilst I accept that his financial situation is currently rather unstable and he did not have sufficient funds at the time of the costs hearing to pay any meaningful costs award, I do find that he would have the ability to pay a costs award (even a substantial one) at some point in the future, given the fluidity of his financial situation and the likelihood that at some point he will once again be successful with his investments in cryptocurrency (albeit it may take him some time to build up sufficient funds to invest in a meaningful way). He could also easily sell one or more of his cars or other personal items to raise funds.

[62]Having said that, in light of my findings above more generally, I do not exercise my discretion to make an award of costs. The fact that he can afford to pay costs does not mean that I necessarily ought to make that order. In circumstances where I find that his application was misconceived because of a genuine lack of understanding of the legal framework (as a litigant in person) in what is a technical area of law, and where by the time he ought reasonably to have known that his application was bound to fail the costs had already been incurred, I decline to make a costs order. It is therefore not necessary to consider the amount of costs to be awarded.