Mr B Lingard v Sussex Partnership NHS Foundation Trust and others: 1401373/2021

EMPLOYMENT TRIBUNALS

Case No 1401373/2021

Between

Mr B LingardClaimant

Sussex Partnership NHS Foundation Trust and othersRespondent

Before

Employment Judge Midgley

In person for claimant

Mr J Jupp (instructed by Counsel) for respondent

Date 1 July 2022

JUDGMENT

[1]The respondent’s application to strike out the claim on the grounds that it is an abuse of process because it contravenes the rule in Henderson v Henderson, and/or that it is estopped, is granted.

[2]The claim is dismissed.

REASONS

[1]In this case the respondent applied to strike out the claims on the basis that they amounted to an abuse of the Tribunal’s process because they a contravened the rule in Henderson v Henderson, and/or that they were caught by issue or action estoppel, on the grounds that they were in almost identical terms to claims that had previously been issued and dismissed on withdrawal, or issued and dismissed on the basis that they breached the rule in Henderson or were caught by issue or action estoppel. Claims and Parties

[2]By a claim form presented on 12 April 2021, the claimant brought claims of direct disability discrimination, discrimination arising from disability, indirect discrimination, failure to make reasonable adjustments, harassment and victimisation. The claimant relied upon PTSD and depression as mental conditions amounting to disabilities within the meaning of s6 and schedule 1 EQA 2010.

[3]The claim was made in respect of the claimant’s engagement by the First Respondent as a Temporary worker on the “Bank”, working as a Nurse Support Worker in the period June 2019 until 1 August 2019, and subsequently in relation to his employment as a mental health nurse between 1 August 2019 and 27 February 2020, when the claimant’s employment ended following his resignation.

[4]The Second Respondent is the Chief Executive of the First Respondent, the Third Respondent the First Respondent’s Chief Operating Officer, and the Fourth Respondent the First Respondent’s Director of Adult Services.

[5]The Fourth Respondent heard and dismissed the claimant’s complaint of bullying and harassment on 27 February 2020. The Third Respondent dismissed the claimant’s appeal against that decision on 9 April 2020.

[6]In the grounds of complaint, which were attached to ET1 and which were approximately 38 pages long, the claimant broadly alleged that the Second, Third and Fourth respondents conspired to prevent an investigation into his complaints of disability discrimination, and in a general sense that their failures constituted direct discrimination, indirect discrimination, or victimisation, harassment, and a failure to make reasonable adjustments. The previous litigation

[7]On 26 December 2019 the claimant issued claim 1406410/2019 (“The First Claim”) against the First Respondent in the Bristol Employment Tribunal. The claim included complaints of disability discrimination and detriment on the grounds of protected disclosure. The protected disclosures relied upon was a complaint on 11 September 2019 that an audit revealed that the First Respondent’s compliance with a mental health requirements was 20%. The claimant relied upon the mental condition of Post Traumatic Stress Disorder (“PTSD”) as a disability. He complained of a failure to make reasonable adjustments by Mr Plant in or about 1 July 2019.

[8]On 4 February 2020, the First Respondent presented a response resisting the claims.

[9]On the 9 February 2020, the claimant withdrew the First Claim.

[10]On the 26 February 2020, the First Claim was dismissed following its withdrawal by the claimant and a dismissal Judgment was issued.

[11]On 9 March 2020, the claimant presented claim 2300941/2020 (“The Second Claim”) in London South Employment Tribunal. Again, the claimant complained of disability discrimination and unlawful detriment as a consequence of making protected disclosures. The detriments relied upon included those in the First Claim but listed many more besides. Additionally, the claimant complained of automatically unfair dismissal contrary to section 103A ERA 1996.

[12]The First Respondent requested further and better particulars of the Second Claim on 18 December 2020 and the claimant provided them in a 52 page document.

[13]At a preliminary hearing before Employment Judge Richardson on 3 and 4 March 2021, at which the question of amendment was potentially to be address, the Employment Judge struck out the Second Claim on the grounds that the allegations of whistleblowing detriment and disability discrimination were estopped in accordance with the rule of res judicata to the extent that they repeated the substance of the First Claim, and secondly that the complaints under section 103A ERA 1996 relied upon the allegations pleaded in the First Claim, and was therefore caught by the rule in Henderson.

[14]The Second Claim was therefore dismissed in its entirety.

[15]On 12 April 2021, the claimant issued the Third Claim.

[16]The respondents argue that all of the allegations and claims within the Third Claim should be struck out either on the grounds of res judicata or issue estoppel as a consequence of the dismissal of the First and Second Claims, or on the basis of the rule in Henderson that the matters relied upon should have been raised in the First or Second Claims. Procedure, Hearing and Evidence

[17]The respondent had prepared a bundle of documents consisting of the pleadings, Tribunal Orders and Judgments and other relevant documents of approximately 580 pages.

[18]In accordance with the Tribunal’s Directions the claimant and the respondent had prepared and exchanged skeleton arguments. The respondent’s skeleton argument was supported by an Authorities Bundle. Attached to the Skeleton argument was a 12-page Schedule which carefully analysed each of the factual allegations and the legal claims made in the First, Second, and Third Claims. A copy of the schedule is annexed hereto as Annex 1 (“the Schedule”).

[19]I heard oral submissions from Mr Jupp for the respondent and from the claimant. In the event, I was referred to a helpfully limited number of documents from the Bundle by Mr Jupp, and almost none by the claimant.

[20]At the end of his submissions, the claimant suggested that he had had insufficient time to consider or respond to the Schedule and so was unable to identify any inaccuracies in it. He therefore requested I permitted him to file further written submissions in which he could conduct the necessary analysis and critique.

[21]On 15 January 2022, the claimant submitted a six-page document which consisted of his further arguments. The last page of that document was blank, and the claimant did not conduct the analysis which the additional submissions were permitted to address.

The Relevant Law

[22]Rule 52 of the Employment Tribunal Rules provides: Dismissal following withdrawal 52. Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless—(a) the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or

(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.

[23]The effect of Rule 52 was considered by the EAT in Biktasheva v University of Liverpool,

UKEAT/0253/19

when it was ruled that at [14] and [15] that the effect is wider than cause of action estoppel and “the words in parenthesis are designed to be explanatory, explaining to parties the gist of the common law, that where a judgment on withdrawal has been issued they will be prevented from raising a further similar claim. The law that underlines the determination of whether further proceedings can be brought is that of res judicata, including cause of action estoppel”.

[24]At [33] the EAT confirmed the decision in Virgin Atlantic Airways Ltd v Zodiac Seats Limited

[2014] AC 160

at para 26 that cause of action estoppel prevents a party from bringing ‘a claim identical to that which has previously been determined. It does not require that the evidence relied upon to advance the claim to be identical.’ Thus, even if new evidence came to light in relation to the claims previously made, or there was a material change of circumstances, a claimant could not re-litigate the claims.

[25]In Biktasheva the EAT concluded at [56] and [57] that where a claimant sought to re-litigate claims in that manner the only proper conclusion was for the later claim to be struck out because it was precluded by cause of action estoppel and/or operation of Rule 52 of the ET rules. Res Judicata

[26]The principles of the broad term, res judicata, were set out by Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly known as Contour Aerospace Ltd)

[2013] UKSC 46

, [2104] AC 160 at [17] (which are repeated below for ease of reference): [1] The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. [2] Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot

[1928] 2 KB 336

. [3] Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given on it, and the claimant's sole right as being a right on the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M & W 494 , 504 (Parke B). [4] Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston's Case (1776) 20 State Tr 355. “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation

(1921) 29 CLR 537

, 561 and adopted by Diplock LJ in Thoday v Thoday

[1964] P 181

, 197–198. [5] Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. [6] Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.

[27]A party may be bound by an earlier decision affecting another party where there is a sufficient degree of identification, or privity, between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party (per Megarry VC in Gleeson v J Wippell & Co Limited

[1977] 1 WLR 510

, at 515). The parties’ arguments

[28]The respondent’s arguments may perhaps be concisely paraphrased in this way: first, any claim or allegation which was common to the First or Second Claim and the Third Claim is estopped, whether a consequence of Rule 52 or as a consequence of cause of action or issue estoppel. Secondly, the claimant could not avoid that rule by suggesting that the claims and allegations in the Third Claim were pursued against different respondents to those in either of the proceeding claims, following Gleeson. Finally, any claim or allegation that related to an event which had occurred prior to the 9 March 2020 or the filing of the Further and Better Particulars in respect of the Second Claim in approximately January 2021 was caught by the rule in Henderson v Henderson as it could and should have been included within the First or Second Claims.

[29]The respondent relied, quite sensibly, on the very detailed and helpful Schedule and invited me to review it carefully.

[30]The claimant sought to argue that the respondent had contrived to conflate two separate and distinct complaints: those of whistleblowing detriment and those of disability discrimination. His written argument contained a detailed timeline of events in respect of the two allegations. In particular, the claimant sought to stress that his resignation in February 2020 was in response to the First Respondent’s failure to investigate his whistleblowing complaints which he had first raised in September 2019.

[31]In contrast, he argued, his complaints relating to discrimination were first raised in a solicitors’ letter in October 2019. Those complaints were investigated by the Fourth Respondent, and the claimant alleged that he failed to make reasonable adjustments when seeking to clarify the terms of reference with the claimant. The claimant argued that the Third Respondent told him that the October complaint was not one of disability discrimination, that that communication occurred in April 2020 which was after his resignation and so cannot have formed part of the First Claim.

[32]It appears therefore that the claimant may tacitly concede that complaints of of whistleblowing detriment and/or dismissal on the grounds of having made a protected disclosure are made with the First and Second Claims respectively, but seeks to argue that allegations relating to the failure to investigate his complaints of disability discrimination were not raised in the First Claim. Discussion and Conclusions

[33]I carefully reviewed the Schedule and found it to be accurate in the manner in which it recorded the details of the claims and allegations contained in the claims. The claimant, despite being given the opportunity to do so, did not identify any particulars in which the Schedule was inaccurate.

[34]I address the claimant’s argument first. I cannot accept his suggestion that he made no complaint in either the First or Second Claim relating to the failure to investigate his complaint of disability discrimination: there are multiple and varied references to it in the Second Claim, and to a lesser extent in the First.

[35]Thus, by way of brief example, paragraph 3 of the Grounds of Complaint attached to the Second Claim records, “The Claimant raises multiple breeches [sic] of the Equality Act (2010)”… he was dismissed from his placement on Amberley Ward… for asking for a Work Place adjustment. Subsequently the claimant suffered Victimization from raising this concern where the claimant was restricted from working on this Ward. Examples include Work Place Adjustments denied, Job Applications unsuccessful and a withdrawal of a legal binding job offer.

[36]From paragraph 14 onwards, the claimant details the complaints of discrimination that he is making. These include: 36.1. Para 16 - a failure to make reasonable adjustments in July 2019 36.2. Para 17 – suspending the claimant’s intended workplace placement in July 2019; 36.3. Para 38 – delay in concluding the investigation in the claimant’s complaints that the respondent had failed to make reasonable adjustments; 36.4. Para 64 – failure to make reasonable adjustments in relation to the speed at which the investigation of the claimant’s complaints was concluded; 36.5. Para 71 – Sam Allen (Second Respondent) agreed to investigate the claimant’s complaints that he was being treated unfairly because of his whistleblowing allegations.

[37]The claimant alleged that the events at35.1 and

35.2 breached both s.13 and s.20 EQA 2010 (see para 19) and amounted to victimisation (see paras 20- 21, 25, 33); and that that at para 38 (35.3 above) was victimization (see para 38). In addition, at paragraph 76 he complained that the failure to investigate his whistleblowing complaint had affected his mental health (and so potentially, by implication, constituted discrimination arising from his disability).

[38]The First Claim records that: “I had two occupational health reports which advised the trust to speed up the investigations as my health was effected. This didn't happen…. I also met with the chief executive and chief nurse to raise my concerns why the policies and procedures were not followed. They were aware of my mental health condition and they were advised by there [sic] own occupational health team, that I was covered by the equality act 2010. When I first made an effort to go back to work I got no support to go back to work and believe I was discriminated against due to my disability and due to the whistleblowing. This was a common theme as around July 1st whilst in Eastbourne working, Darren Plant refused me reasonable adjustments when I was suffering with mental Illness at work”

[39]As I have indicated, a careful and thorough review of the claims and allegations in the Third Claim reveal that each of that allegations was raised directly or referenced in First, but largely the Second Claim and/or the very lengthy further and better particulars that were submitted by way of clarification of those claims.

[40]In so far as the claimant argues that the Further and Better Particulars were not accepted as an amendment of the Second Claim and therefore it cannot be said that the matters referenced in the Further and Better Particulars (“FBP”) formed part of the Second Claim and would therefore not operate to prevent him raising the same allegations in the Third Claim, his argument is misconceived for the reasons detailed in the paragraph below.

[41]Whilst the claimant is right that if the FBP were not accepted as an amendment, he could not be estopped on the basis of res judicata (action estoppel) from pursing matters in the FBP in the Third Claim, that would not prevent consideration of whether the claims and allegations were res judicata on the basis of issue estoppel or the rule in Henderson.

[42]Addressing the latter rule first (Henderson), if the allegations could and should have been included in the Second or First Claims, and self-evidently they could as the claimant was able to identify them in the FBP, then they should have been included in those claims, and he cannot rely upon his failure to raise them timeously to support his efforts to defeat the respondent’s application. The claims would be an abuse of process.

[43]Secondly, the claims in the Third Claim would be caught by issue estoppel because they rely on events and/or issues which are necessarily common to both the First and Second Claims. Those claims having been judicially determined by their dismissal in accordance with Rule 52, the claimant cannot now re-litigate them by issuing the Third Claim.

[44]It follows that the Third Claim is estopped and must be dismissed.

[45]In conclusion, the Judgment is in the form envisaged in Greenberg, it sets out the key features that led to the decision and records the evidence and those arguments which I found to be persuasive. It was not necessary to set out each and every made and explain why I rejected it. That would be to impose an impossible burden, particularly in preliminary hearings. Bearing in mind that the fair minded and informed observer would be aware of those authorities and the principles I have rehearsed, seems to me there is nothing within this ground of application that would lead that observer to conclude that there was actual bias or the risk of apparent bias arising out of the matters that the claimant has identified.

[46]For those reasons I rejected the claimant’s application to recuse myself and continued to conduct the hearing. The claimant’s application for reconsideration of the Judgment striking out claim 1401373/2021

[47]The claimant did not advance the application at the hearing. In so far as I can identify the grounds on which the claimant seeks reconsideration from the claimant’s 56 page document which appeared at Tab B of the bundle for the hearing, it appears from page 18 and 19 of that document that the claimant argues the following:a. I conspired with the respondent and/or its solicitors to participate in a fraud to incite or procure the claimant to withdraw his appeal in relation to ET case 2300941/2020;

b. That I failed to engage with the claimant’s arguments or evidence generally;

c. That I erred in my application of the law in Henderson v Henderson and issue estoppel.

[48]Grounds (a) and (b) repeat the allegations which relied upon by the claimant in the recusal application. For the same reasons as those given above, I reject them, but in any event I am satisfied that the demonstrate no basis on which it could be said that the claimant has reasonable prospects of demonstrating that it would in the interest of justice to vary of revoke the Judgment.

[49]Ground (c) relies upon the same arguments that the claimant advanced at the hearing in January 2022. All the arguments set out in the claimant’s written argument at pages 16 to 35 were raised to a greater or lesser extent in the claimant’s written arguments for the hearing in January 2022 which and/or in his oral arguments. I considered them before striking out the claim.

[50]In so far as the application entreats me to reconsider and review my decision on matters of fact or arguments which I have previously determined, the Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd

[1982] ICR 440

decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/60 the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful, he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.

[51]There was no denial of natural justice in this case; rather I considered the evidence and the parties’ arguments and found on balance that the complaints in this claim had been or should have been raised in the first and second claims for the reasons recorded in the Judgment. That is the usual process of a Tribunal where facts and their consequence are disputed.

[52]Accordingly, I refuse the application for reconsideration pursuant to Rule 72 because it is not in the interest of justice for the Judgment to be varied or revoked. The respondent’s cost application

[53]Having handed down the Judgment on the recusal application, the claimant disconnected from the VHS platform, despite my entreaties that it was not in his interests to do so, and that I was prepared to allow a short adjournment for him to consider that intention. I explained that if he left the hearing, I would continue to hear the costs application in his absence.

[54]Having left the hearing, the claimant began to send emails to the Tribunal, including a request for written reasons for the dismissal of his recusal application. I learned of the emails after the hearing. Had the claimant wishes to make representations at the hearing, he should have participated in it.

[55]In preparation for the hearing I have been provided with a bundle containing the following:a. The respondent’s skeleton argument and authorities (Bundle A)

b. The claimant’s submissions and documents which appeared to contained further submissions (Bundle B)

c. Two statements of Catherine Daw, prepared on behalf of the respondent in support of the application, together with exhibits including a partial log of emails received from the claimant (Bundle C)

d. The respondent’s bundle for the hearing, which was not agreed (Bundle E).

[56]I set out what I understood the claimant’s arguments to be in relation to the respondent’s costs application, by reference to Bundle B, and directed Mr Burke to identify any others which I had omitted, in accordance with his duty to the court as the claimant was a litigant in person. I then heard the respondent’s submissions on the costs application, took time to consider the claimant’s arguments as they were understood and to consider the application, before providing an extempore Judgment. Judgment on the costs application

[57]The respondent advances two grounds for the application. Firstly, that the claimant’s conduct in pursuing the claim was vexatious, unreasonable or otherwise an abuse of process. The primary thrust of the respondent’s argument is that the claimant has sought to abuse the process of the Tribunal to secure some form of concession from the respondent through the sheer volume, tone, and content of emails he sent to the respondent and to the respondent’s representatives, knowing and intending that the volume of those emails would cause the respondent considerable cost and/or distress.

[58]Secondly, it argues that the claimant’s claims in 1401373/2021 had no reasonable prospect of success and the claimant knew or ought reasonably to have known at the time that he presented them that that was the case. Mr Burke argued that the lack of prospects had been identified, extrapolated, and explained in detail by the respondent’s Counsel, by EJ Richardson, and EJ Michell, and therefore the claimant knew or must have known that in issuing claim 1401373/2021 he was impermissibly seeking to relitigate matters that had already been the subject of his earlier claims which had been dismissed. Lastly, his emails demonstrated that he recognised that there was no reasonable prospect of success for these claims on the grounds of the issue of estoppel or the rule in Henderson v Henderson.

[59]The following background facts are of relevance to the assessment I must undertake.

[60]The claimant is a qualified mental health nurse. He has issued four claims over the last two years or so. Whilst he has appeared as a litigant in person at all the hearings, he has had the benefit of professional legal advice and has engaged at least three different firms of solicitors across that period, and informed the respondent that he has incurred legal fees in excess of £17,000, including the receipt of advice of unnamed Leading Counsel.

[61]In these proceedings the claimant relies upon PTSD and depressions as conditions amounting to disabilities within the definition of s.6 EQA 2010.

[62]The respondent’s claim for costs is in respect of the period 3 June 2021, when claim 1401373/2021 was received and its dismissal on 4 March 2022. It relies upon the background in relation to other claims in earlier periods to demonstrate that the claimant knowingly and deliberately set excessive volumes of emails as a deliberate tactic, despite requests from the respondent to desist and direct warnings from Tribunal Judges. The level of emails sent by the claimant is staggering they exceed 12,000, whilst their content has become increasingly bizarre, abusive, and threatening.

[63]In that context the following matters are relevant:

[64]As early as April 2020, the respondent’s HR department requested that the claimant should cease to send such volumes of emails, warning that they would be blocked. That warning and request was repeated by the respondent’s solicitors as early as November 2020. Since that request, the respondent and its solicitors have had to block over 112 different email addresses that the claimant has used to try to bypass the respondent’s and respondent’s solicitors’ efforts to manage his emails.

[65]The claimant has sent over 420 emails to the respondent’s counsel directly despite(a) knowing that the respondent is represented by solicitors and

(b) being told that it was therefore no appropriate to email counsel directly.

[66]The claimant has received repeated Judicial warnings about his conduct:a. On 3 December 2020 EJ Michel warned the parties at paragraph 14 of his Orders against “unnecessary proliferation of inter parties emails . . . resulting in excessive time being spent on the case,” warning that “ . . . Costs consequences may follow in the event that either party is found to have acted unreasonably in their conduct of the litigation. ” Following that warning the claimant sent over 200 emails between 25 January 2021 and 26 February 2021.

b. On 4 March 2021, EJ Richardson repeated that warning, referring to the risks of mistreating people through the volume of emails in litigation.

c. Despite EJ Hyams-Parish making a costs order in claim 2300941/2020 in March 2022, and expressly warning the claimant in the Judgment dated 9.3,22 and sent to the parties on 31.3.22 as set out below, his conduct has continued unabated: “45. Having listened carefully to the evidence of Ms Daw, together with the submissions by Mr Burke, I was shocked at the manner in which the claimant has conducted this case and the level of abuse suffered by the respondent and those representing them. It is wholly unacceptable; they should not have to tolerate the level and content of emails sent by the claimant, amounting in my view to harassment. There is no doubt in my mind that the claimant acted abusively, disruptively and unreasonably within the meaning of Rule 76(l)(a) of the ET Rules. 47... I was concerned about his continuing to make serious allegations about those representing the respondent, without any evidence of such claims.”

[67]Thus, in the period 27 February to 25 April, the latter falling after the costs order, the claimant sent 2000 emails.

[68]Similarly, whilst the claimant’s conduct towards the Tribunal is not the subject of the application for costs (and could not be), it is relevant to the question of the deliberate nature of the claimant’s conduct that despite being directed by the Regional Employment Judge not to send copious unnecessary correspondence to the Tribunal he has sent over 172 emails to the Tribunal in less than a month.

The relevant law

[69]Rule 76 of the ET Rules of Procedure 2013 provides, inter alia, that a Tribunal “may make a costs order, and shall consider whether to do so, where it considers that:(a) a party… has acted vexatiously, abusively, disruptively or otherwise unreasonably either in 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.

[70]Under Rule 78(1) 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;

(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles …"

[71]Under Rule 84, 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

[72]The process of making a costs order requires a three-stage process (Hossaini v EDS Recruitment Ltd

[2020] ICR 512

, at para 64):a. First, the Tribunal must assess whether the threshold or thresholds relied upon have been crossed;

b. If so, decide whether the discretion to make a costs order should be exercised; and

c. If so, determine in what amount.

[73]The correct starting position is that an award of costs is the exception rather than the rule. As Sedley LJ stated at para 35 of his judgment in Gee v Shell Ltd

[2003] IRLR 82

, CA: “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that in sharp distinction from ordinary litigation in the UK, losing does not ordinarily mean paying the other side’s costs …”

[74]Nonetheless, an Employment Tribunal must consider, after the claims were brought, whether they were properly pursued (see for instance NPower Yorkshire Ltd v Daley

EAT/0842/04

). If not, then that may amount to unreasonable conduct.

[75]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 must take into account – see AQ Ltd v Holden

[2012] IRLR 648

EAT in which Richardson J commented: “Justice requires the tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As [counsel] submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought about by a professional adviser. Tribunals must bear this in mind when assessing the threshold tests in [rule 76(1)(a)]. Further, even if the threshold tests for an order of costs are met, the tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice.” However, Richardson J also acknowledged that it does not follow from this “that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity”.

[76]These statements were approved by Underhill P in Vaughan v London Borough of Newham

[2013] IRLR 713

. Unreasonable conduct

[77]‘Unreasonable’ has its ordinary English meaning and is not to be interpreted as if it means something similar to ‘vexatious’ — Dyer v Secretary of State for Employment EAT 183/83.

[78]In Radia v Jefferies International Limited

UKEAT/008/18

, the EAT at §64 provided guidance for tribunals in considering the key issues in rule 76(l)(b) cases:a. did the complaints, in fact, have no reasonable prospect of success?

b. if so, did the complainant in fact know or appreciate that?

c. If not, ought they, reasonably, to have known or appreciated that?

[79]In Sud v Ealing London Borough Council

[2013] ICR 39

, it was stated a tribunal needs to consider whether the party’s conduct of the proceedings was unreasonable and, if so, identify the particular unreasonable conduct along with its effect. The process does not entail a detailed or minute assessment but rather it is sufficient to have a broad-brush approach against the background of all the relevant circumstances.

[80]The Tribunal has a wide discretion where an application for costs is made under Rule 76(1)(a). In determining whether to make an order under this ground, it should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct (see McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

). In conducting that assessment, as it was put Mummery LJ at para 41 in Barnsley BC v Yerrakalva

[2012] IRLR 78

CA; “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it, and what effects it had.”

[81]However, the Tribunal should look at the matter in the round rather that dissecting various parts of the claim and the costs application and compartmentalising it. Abuse of process

[82]‘Abuse of process’ was defined of Lord Bingham in Attorney General v Barker

[2000] 1 FLR 759

, QBD, and was cited with approval in the Court of Appeal in Scott v Russell

[2013] EWCA Civ 1432

at §30, "[,,.] 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. " Causation and calculation of costs

[83]There is no need for the tribunal to find a causative link between the costs incurred by the party making the application for costs and the event or events that are found to be unreasonable (see McPherson v BNP Paribas, and Kapoor v Governing Body of Barnhill Community High School

UKEAT/0352/13

in which Singh J held that the receiving party does not have to prove that any specific unreasonable conduct by the paying party caused any particular costs to be incurred.)

[84]With 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, see Jilley v Birmingham and Solihull Mental Health NHS Trust [2008]

UKEAT/0584/06

and Single Homeless Project v Abu

UKEAT/0519/12

. The fact that a party’s ability to pay is limited, does not, however, require the tribunal to assess a sum that is confined to an amount that he or she could pay see Arrowsmith v Nottingham Trent University

[2012] ICR 159

which upheld a costs order against a claimant of very limited means and per Rimer LJ “her circumstances may well improve and no doubt she hopes that they will.”

[85]One reason for not taking means into account is the failure of the paying party to provide sufficient and/or credible evidence of his or her means. The authorities also make it clear that the amount which the paying party might be ordered to pay after assessment does not need to be a sum which he or she could pay outright from savings or current earnings. In Vaughan the paying party was out of work and had no liquid or capital assets and a costs order was made which was more than twice her gross earnings at the date of dismissal. Underhill P declined to overturn that order on appeal because despite her limited financial circumstances, there was evidence that she would be successful in obtaining some further employment. Per Underhill P: “The question of affordability does not have to be decided once and for all by reference to the party’s means at the moment the order falls to be made” and the questions of what a party could realistically pay over a reasonable period “are very open-ended, and we see nothing wrong in principle in the tribunal setting the order at a level which gives the respondent’s the benefit of any doubt, even to a generous extent. It must be recalled that affordability is not, as such, the sole criterion for the exercise of the discretion: accordingly, a nice estimate of what can be afforded is not essential.”

[86]Insofar as it does have regard to the paying party's ability to pay, the tribunal should have regard to the whole means of that party's ability to pay, see Shield Automotive Ltd v Greig

UKEAT/0584/06

(per Lady Smith obiter). This includes considering capital within a person's means, which will often be represented by property or other investments which are not as flexible as cash, but which should not be ignored. Discussion and conclusions

[87]I address with the question of the first ground of the application: the claimant’s conduct was unreasonable, vexatious, or an abuse of the Tribunal process.

[88]The background to this application is important, in the sense that the claimant has brought two previous claims and a costs order has been made in respect of the second of those by an Employment Judge sitting in Croydon recently. Since that award for costs in the sum of £10,000 the claimant has acted as follows through the emails:a. He has suggested the respondent has hacked his emails,

b. that they have sent somewhere in the region of approximately 7,000 emails to themselves, and

c. that they have inflected a malware attack on the claimant,

d. that they have photoshopped and forged documents or paid an unknown IT expert to carry out the above.

[89]All of those are very serious allegations in respect of which the claimant has failed to advance not an iota of evidence. I unhesitatingly reject the claimant’s argument; I am satisfied that the claimant sent of all the emails in question.

[90]That is the background to the emails although the respondent prays in aid all of the emails that have been sent (which at the time of the hearing were somewhere in the region of 14,000, possibly more) as demonstrating the continuance of a deliberate, unreasonable campaign.

[91]The content of some emails demonstrates that the claimant knew and intended that the sheer volume of emails would cause the respondent considerable costs and distress, and that he sent them in an attempt to secure concessions from the respondent, either in terms of his employment, his claims or to force the respondent to withdraw its applications for the claims to be struck out and or for costs.

[92]As set out above, in the background section, he has been repeatedly warned about the consequences of that course. However, the claimant has consistently responded derisively or contemptuously to such warnings about his conduct. In particular, I have had regard to the witness statement of Ms Daw, who is the Fee earner and partner who has the responsibility of managing this claim for the respondent. I was struck by the content of that statement, not only in terms of its detail, but in terms of the nature and content of the claimant’s emails in question and his abusive phone calls. Although I have not cross verified each and every email that is referred to in paragraph 15 and onwards in Ms Daw’s witness statement, I have looked at a good number and I am satisfied that the account of the emails in the statement that is provided is an accurate one. It is noteworthy, that one consequence of the claimant’s abusive calls is that a number of the respondent’s employment team have been directed not to answer calls from those without a caller ID. The claimant’s conduct has therefore directly affected the ability of others to access legal advice.

[93]The nature of the emails that the claimant has sent in the relevant period begins firstly with what the Tribunal (and regrettably many representatives are familiar with): low level abuse directed at the representatives. The claimant suggests, for example, that particular individuals are corrupt or dishonest, that the firm of solicitors instructed by the respondent is the lowest of all solicitors and morally bankrupt.

[94]However, the nature and content of emails became increasingly more aggressive and threatening through the period January 2022 and onwards in the lead up to this hearing. In particular on 20 January 2022, he wrote “I write emails as I hate you for what you did”. On 27 February, he wrote “next how you vexatious to defend to kill you” [sic]. On 1 March he wrote, “We can damage you further”. On 2 March “you have deserved every single email”.

[95]The target of those threats has increased beyond Ms Daw, to receptionists working for the respondent and to Dr Burke and others.

[96]In addition, the claimant has made very serious allegations against the respondent, including allegations of forgery of documents, and, as indicated above in this Judgment, that the respondent’s solicitors have either been sending the emails themselves for the purposes of the costs application or have instructed a third party to do so on their behalf, and that they bribed an Employment Judge and Regional Employment Judge and other Employment Judges so as to defeat the claimant’s meritorious claims.

[97]What is of greatest concern is the evidence that demonstrates that the claimant’s conduct was deliberate and was intended to secure concessions from the respondent in the litigation. Such an approach is an abuse of process. In that context, the following emails are of particular concern:a. On 24 January 2022, the claimant wrote “I will write as many emails as I want…. until we come to an understanding… my protest goes on…. There will be no emails if you investigate mate”.

b. Later in a separate email on 24th “If I get something I want - I will stop emailing”.

c. On 24 February “I believe direct action of emails v Brachers is appropriate until they play fair”.

d. On 1 March “defending is about making it very difficult for you as I am doing”.

[98]Equally the claimant has demonstrated in three emails that he believes are allegations against members of the judiciary and of the Bar is good sport, good fun and fair game:a. On 10 April “Midgley - complaint into bullying and harassment good banter!”.

b. On 14 April “the game is next time you accept instructions of Webster. I don’t like it. I report Burke,” (being a reference to a threat to report Dr Burke to the Bar Standards Board.)

c. On 14 April “we all know you like to play games and I have set up lots for you it is just when I do it”.

d. Lastly, on 4 May “I fully admit that I take high risks to trap you and these bad spots like they do”.

[99]I have therefore have no hesitation in concluding that the claimant’s conduct in sending the emails, and making telephone calls to the respondent, it’s counsel and solicitor, was deliberately, knowingly, and intentionally unreasonable, vexatious, and abusive, and amount to an abuse of the Tribunal’s process, and therefore the threshold for a costs order has been met.

[100]However, I have to consider whether, notwithstanding the threshold has been met, whether I should exercise my discretion to make an award. In particular, I should have regard to the fact that the claimant is a person with a disability and therefore the extent to which that disability may have contributed in full or in part to the conduct that is the subject of the application.

[101]The claimant has produced a lengthy disability impact statement which he emailed to the Tribunal. It includes a disability impact statement, a medical report, and an occupational health report. The documents run to 53 pages. I note from those reports the following matters that are relevant to the issue that I have to resolve:a. Firstl, the reports record that in around 2020 that the claimant had a need to speak out where he perceived injustice as a consequence of his feelings that he failed to do so as a child when he suffered abuse.

b. Secondly, an occupational health report of 5 January 2021 reports that CBT has been highly effectual in reducing his symptoms of PTSD. (I pause at this stage to remind myself that the conditions identified as disabilities that the claimant relies upon in these proceedings are PTSD, anxiety, and depression.)

c. Thirdly, however, in the same report of 5 January, the consultant noted that from mid December 2020 the claimant was disinhibited in his communication but that as at January 2021 he was fit to return to duties and competent to attend meetings.

[102]In summary, the medical records themselves do not extend beyond April 2021 and give no indication that I can see that the conditions of PTSD, anxiety or depression were having a material impact on the claimant’s cognitive function to the extent that he could not tell right from wrong or (to use the words of the report itself) that he continued to be ‘disinhibited in his communication.’ I have carefully considered therefore, the extent to which the evidence demonstrates that the conduct that I have found to be unreasonable and vexatious might be said to be a consequence of the claimant’s disability.

[103]In that context it is of significance that the majority of the emails that were of greatest concern to me because they included clear expositions that the claimant regarded his excessive email sending as a game or a tactic, and the more serious intimations of violence against the respondent’s solicitors, all occur in 2022, beginning in January and escalating through March and April. There is no evidence before me that the cause or main cause of any of those communications was the claimant’s disability, and I am satisfied on the balance of probabilities that it was not the cause.

[104]In my judgment, it is therefore appropriate for me to exercise my discretion to make an order for costs.

[105]For the sake of completeness, I address the second ground relied upon in the application that the claim had no reasonable prospect of success. The respondent argues that not only did it have no prospects of success, but that the claimant knew that it had no prospects, and that in pursuing the he deliberately cause the respondent to incur costs unnecessarily.

[106]There is force in Dr Burke’s argument, which he developed from his skeleton argument in his oral submissions, that the claimant was in an unusually beneficial position in comparison with an ordinary litigant in person in understanding the limitations and pitfalls of the claim that he sought to pursue. The essential thrust of the argument that led to the claim being struck out was that the claimant sought to bring allegations either which were expressly made in the first or the second claim which had been dismissed and were therefore(a) res judicata or

(b) issue estopped because they relied upon facts or arguments that were identified in those claims, or lastly

(c) that they relied upon facts that were known to the claimant at the time of the first and second claims and therefore ought to have been included in those claims, with the result that this claim should be struck out under the rule in Henderson v Henderson.

[107]None of those matters are simple in terms of facts or law and had this been the first claim where this issue arose, I would certainly hesitate in considering that there was force or substance in the respondent’s argument and that in pursuing such a claim the claimant should be exposed to the risk of costs. However, the claimant clearly understood the nature of the issue because it had been raised, considered, and explained in relation to the second claim by Employment Judge Richardson in her decision that followed the preliminary hearing on 3 and 4 March 2021. There had been some prior explanation of the points that were relevant by Employment Mitchell who had listed that hearing, and furthermore the claimant had had the benefit of Dr Burke’s skeleton argument in that hearing which set out all of the relevant principles and identified the relevant case law. The claimant had had ample opportunity to consider and reflect upon all of that information.

[108]It seems to me there is significant force in the respondent’s argument because it is clear from the documents the claimant has produced that he has firstly engaged with them, secondly, that he has to one extent or another understood the principles (albeit he has sought to apply them to support his claim or defeat the respondent’s applications). In that context, the claimant has demonstrated that his disability has not prevented him from articulating the points that he wishes to make in connection with those legal principles. (Indeed, part of his discontent with me is that he feels that I did not engage or did not understand the points that he ‘clearly’ made about those principles, and therefore his view is that I made an incorrect decision in relation to the strike out of this claim). That of course places him in some predicament if he seeks to argue that he did not understand the risk that he ran by pursuing a claim that largely if not entirely reiterated matters from the first and second claims.

[109]However, I bear in mind that the claimant’s underlying position is that the judicial approach across his claims that have now been struck out was erroneous, that each of the Judges who addressed his claims to one extent or another was either misled or failed to engage with the claimant’s arguments, and therefore it was necessary to bring the third claim in order to write the wrong.

[110]Nevertheless, I am satisfied on balance that the claimant knew that there was a significant risk that that claim would be treated as being estopped by issue or cause of action estoppel or by the rule in Henderson v Henderson, and when pursuing it he knew that it had no reasonable prospect of success. Certainly, he must have been aware of that from the point that the ET3 was submitted which specified the duplication of the allegations (both factual and legal). In my judgment the threshold for a costs award on the basis of pursuing the claim had no reasonable prospect of success has also been met, and it is appropriate to exercise that discretion for the reasons in this paragraph.

[111]That takes me to the sum of costs that should be awarded. The claimant’s primary argument

[112]The claimant has chosen not to participate in the hearing of this application following the dismissal of his recusal application. That is a choice that he has made but its consequence is that he has not been in a position to tell me anything about his means. That is not to say that there is not evidence of his means in the bundle: I have been provided with bank statements and indeed with an application that the claimant made detailing his job history to the respondent. Those matters are relevant in so far as the claimant has either directly or by implication sought to argue that he remains unable to work and therefore has no means. It is clear from his applications that between 1 April 2019 and 26 March 2020 the claimant was able to work in his professional role as a nurse or a lead practitioner and it was no part of that application that the period where he ceased to work was due to any disability, whether PTSD, anxiety or depression.

[113]During evidence at the previous preliminary hearing the claimant indicated that at times he has been able to secure an income of approximately £6,000 gross a month from such work. There is no evidence before me at this stage that his income has reached that level in the recent past, but I do note that there is nothing in the medical evidence that suggests he has been unable to work as a consequence of his disabilities.

[114]I turn then to the nature of the sums claimed through the respondent’s cost schedule and the extent of the award. The respondent’s seeks summary assessment of the limited sum permitted by summary assessment of £20,000 as against a cost schedule of £42,500 rounding up to £51,000 once that is added.

[115]The relevant component elements of that cost schedule are best identified as follows:a. There is a specific section addressing the volume of emails that Ms Daw and others have had to deal with as a consequence of the claimant’s unreasonable behaviour. The sum claimed in respect of that is £3,500 plus VAT amounting approximately 48 hours’ work, as I understand the schedule.

b. £6,000 is claimed in respect of the preparation and lodging of the ET3 and

c. Approximately £25,000 in respect of the case management preparing for and attending hearings.

[116]I bear in mind that the approach that I must take is not to go through the cost schedule with a finetooth comb, nor do I have to be satisfied that all of the costs were caused by the conduct that was unreasonable. What I am required to do is to stand back to look at the gravity and severity of the conduct in question and apply a broadbrush approach to identify the appropriate award. It seems to me in the circumstances of this case, particularly in the absence of the claimant, some articulation of what it is that has an influence upon my decision may be sensible.

[117]In my judgment, the costs of £3,500 that the claimant has caused by his excessive correspondence is certainly to be awarded. Whilst the claimant might argue that he should not have to pay the costs of the respondent’s response, again in my judgment the respondent’s costs of the litigation from that point onwards were occasioned by the claimant’s pursuit of a claim which was destined to fail. The basis on which it would fail was directly identified in the Grounds of Response, and from the point of receipt of that document, the claimant can have no reasonable doubt that res judicata and issue estoppel were the focus of the defence. The basis of those arguments was set out in detail in the response, and the claimant would have been able cross refer between the response and the relevant paragraphs of his claim forms to understand the factual basis of the argument. The legal position in respect of those defences had been explained to the claimant in the respondent’s counsel’s skeleton argument and in the Judgment of EJ Richardson.

[118]I am entirely satisfied that the claimant understood what was being argued, was able to assess the argument by reference to the grounds of response and the various claims and therefore was able to make an informed decision about the prospects of success for claim 1401373/2021. It seems to me that he continued to pursue the claim both because of his unshakeable sense of injustice arising from his perception of how he believed he had been wronged first by the respondent and then by various Employment Judges, and because of his equally unassailable desire to cause the maximum disruption and harm to the respondent and all who represented it.

[119]The claimant argues that the respondent is seeking to recover costs in respect of the same work for which it was awarded £10,000 by EJ HyamsParish. Whilst the claimant’s argument is understandable because that the respondent has relied upon many of the same emails to demonstrate the nature of the unreasonable conduct and its persistence, the argument is misconceived. The period in respect of which costs are sought in this claim is the period 3 June 2021 to 4 March 2022. The period for which costs in claim 2300941/2020 was ordered was from the date of the presentation of that claim 9 March 2020 to 8 March 2021 when it was struck out. I have been provided with a schedule of costs totalling £50,950.40 for the period of this claim. The respondent’s application is limited to statutory cap of £20,000 for unassessed costs.

[120]It is unnecessary to seek to apportion the degree to which each of those factors caused the claimant’s conduct which in turn caused the costs; I must need only assess the nature, effect and gravity of that conduct. It seems to me in those circumstances that it would be appropriate to award the costs of the general case management the preliminary hearings together with the costs of the claimant’s correspondence.

[121]Applying a broadbrush approach that sum takes me over the threshold because it amounts to around £29,000 rounded to £20,000 which is the limit and so £20,000 is the extent of the costs order that I make.

The relevant law

[1]The claimant seeks reconsideration of the Judgment of 25 May 2022 by which a costs order was made against him. The Judgment was sent to the parties on 1 July 2022 (“the Judgment”). A certificate of correction was issued in respect of that Judgment and an Amended Judgment, showing the corrections in red and underlined text was sent to the parties on 4 July 2022 (“the Corrected Judgment”)

[2]The claimant has sent an unmanageable number of emails to the Tribunal in this litigation: since 25 May 2022 the claimant has sent over 400 emails. Furthermore, since the dates on which the Judgments above were sent to him, the claimant has sent emails with increasing frequency. The effect has been that identifying which emails contain applications, which repeat those or introduce new one, which are complaints, and which are repeating matters which form grounds of appeal which should be presented to the Employment Appeal Tribunal, is nigh on impossible.

[3]The claimant has been given guidance in relation to his conduct, he has been directed only to send emails containing urgent applications, to direct complaints to the Judicial Ombudsman and to send correspondence relation to his appeals to the Employment Appeal Tribunal. He has received warnings that his claims may be struck out if he continues in his conduct. He continues to ignore all such guidance and direction.

[4]The claimant has made numerous previous applications for reconsideration and therefore knows that he must identify the Judgment he seeks reconsideration of and knows that he should explicitly state that he is making an application for reconsideration in respect of that Judgment. Consequently, emails which merely direct vitriolic abuse at the Judge in respect of the Judgments have not been treated without more as being an application for reconsideration or an expansion of the grounds.

[5]The matter is complicated by the claimant’s repeated applications for reconsideration of the decision not to permit a further reconsideration of the Judgment in case 1401244/2021 (by which the claimant was Ordered to pay a deposit to continue to pursue his claims). Those applications are irrelevant to this application for reconsideration, save in so far as the claimant relies upon the suggestion that I am committing fraud on the Court, and generally corrupt and am part of a masonic conspiracy involving the Regional Employment Judge, the respondent’s solicitors and counsel and the Senior Management of the various NHS Trusts against whom the claimant has pursued claims, and certain members of the police, which is an argument he prays in aid of this application.

[6]Viewed in those constraints, the claimant has sent the following emails which may be regarded as an application for reconsideration or expansion of the grounds for reconsideration against the cost Judgments:4.1 On 3 July 2022 at 8:56 in relation the Judgment: The email stated that the grounds of the application were to follow but identified the key grounds that the application for costs duplicated the period and costs awarded in claim 2300941/2020 against the claimant by EJ Hyams-Parish in March 2022. The respondent relied upon the same emails to evidence the unreasonable conduct. The claimant argues that issue or cause of action estoppel prevents the respondent from pursuing the costs application in these proceedings. In addition, the claimant argues that the claim should have been transferred to a different region; although he did not apply for reconsideration of that decision.

4.2 On 4 July 2022 at 16:32 in relation to the Amended Judgment: the claimant merely repeated his objection and stated that the Judgment was ‘an abuse of process.’

4.3 On 5 July 2022 at 05:59 in relation to the Amended Judgment: the claimant submitted an application to set aside the Judgment, which consistent of an email which was repeated in a 7-page letter attached to the Judgment. The new grounds identified within it were that a) the refusal of the claimant’s application for a preliminary hearing to determine whether the respondent’s costs application was cause of action estopped or issue estopped rendered the costs application unsafe. He argued that 14 days’ notice of the fact that that application would be heard at the preliminary hearing was required. b) The respondent’s claim for costs relied upon emails which were sent after the Judgment of 4 March 2022 by which claim 1401373/2021 was dismissed c) The respondent’s claim for costs included costs incurred in relation to claim 2300941/2020.

4.4 On 7 July 2022 at 09:54 in relation to the Amended Judgment: the claimant argued that the amended Judgment was issued in breach of Rule 69, because it was not a correction of any clerical mistake or other accidental slip or other mistake.

[7]On 4 July 2022 the respondent objected to the claimant’s application for reconsideration, but noted that the email of 3 July 2022 at 8:56 indicated that the full grounds were to follow.

[8]On 11 July 2022, I directed that the respondent should comment on the detailed grounds that were provided in the email and application sent by the claimant on 5 July 2022 at 5:59 and indicated that I would consider the matter on the papers without a hearing.

[9]On the same day, in an email sent at 13:42 the claimant stated that had not applied for reconsideration under rule 72 but rather had applied for the Judgment to be set aside, but that a ‘more substantial’ application for reconsideration would follow. Factual and legally that was inaccurate. The claimant had applied for reconsideration and the Tribunal’s power to revoke a Judgment is provide by Rule 72; if no application is made under that rule the only avenue open to the claimant to set aside a Judgment is by appeal to the Employment Appeal Tribunal.

[10]I pause to observe that any application in respect of the Amended Judgment had to be received by 18 July 2022 in accordance with Rule 72.

[11]On 13 July 2022 at 02:58 the claimant provided further grounds for reconsideration. which attached a 9-page letter. I directed the respondent to comment on those grounds and a response was received on 12 August 2022.

[12]The grounds for reconsideration are only those set out in Rule 70, namely that it is in the interests of justice to do so.

[13]I address each of the grounds that I have been able to identify in turn below: Cause of action and/or issue estoppel

[14]The claimant argues that as the respondent has previously obtained a costs order in case number 2300941/2020 it is prevented by cause of action or issue estoppel from pursuing an application for costs in respect of the costs of defending claim number 1401373/2021. That argument is inherently misconceived and erroneous. Whilst the basis of the costs application in each of the claims is identical, namely a complaint that costs should be awarded pursuant to rule 76 on the grounds that the claimant’s pursuit or conduct of the proceedings has been unreasonable, vexatious or abusive, the costs incurred as a consequence of that conduct which are the subject of the application differ. A party is entitled to make a series of costs applications in relation to a single claim, provided that the events which form conduct in respect of which the application is made and the costs that are claimed are not duplicated.

[15]Put simply, the respondent was entitled as a consequence of rule 76 to make an application for costs in respect of the claimant’s conduct in each of the claims, whether 2300941/2020 or 1401373/2021. The question of whether or not those applications were predicated on the same conduct and in respect of the same costs is addressed separately below. Duplication of costs claimed

[16]Insofar as the claimant seeks to argue that the costs have been duplicated between the two claims, for the reasons given in the Judgment of 25 May 2022, I was satisfied that that argument was without evidential basis. The costs covered in the two schedules of costs were distinct and separable, and the claimant advanced no sensible basis to demonstrate that the two schedules of costs covered exactly the same work. He provided not a single example to demonstrate that argument in any of his written documents prior to the hearing, and none in the extensive correspondence he has sent since the hearing in support of his application for reconsideration. Reliance on evidence which related to claim 2300941/2020

[17]Secondly, in so far as the claimant complains that the respondent’s reliance on emails that were sent in relation to claim 2300941/2020 were irrelevant, and therefore that it was an error of law to consider them, again that argument is wholly misconceived. The respondent is entitled to point to the claimant’s prior conduct in relation to claim 2300941/2020 to demonstrate that his conduct in respect of claim 1401373/2021 was unreasonable, vexatious or an abuse of process. The essential premise of that argument is that the claimant’s continuation of the conduct, despite the clear warnings from the respondent, the respondent’s representatives, and various judges, makes the claimant’s conduct worse and more serious than that in claim 2300941/2020 (which EJ Hyams-Parish concluded was unreasonable and vexatious and ‘harassment.’) The claimant had been told what he was doing wrong, and therefore he could have been in no doubt of the manner in which it would be viewed by the Tribunal and the respondent, but he willingly and deliberately continued in it.

[18]Critically, there was evidence of the claimant’s unreasonable and abusive and/or vexatious conduct in respect of the emails sent solely in connection with claim 1401373/2021: it consisted not only in the nature of some of the emails, in particular the tone and the intent with which they were sent, but also in their being viewed against the prior conduct, and in their number and frequency. Again, as indicated in the judgment of the 25 May 2020, I was satisfied that the claimant knowingly and deliberately sent the volume of emails in question for an improper purpose: namely, to force concessions from the respondent against the background of increasing costs caused by the claimant’s volume of emails.

[19]Neither the claimant’s application for reconsideration nor the many documents in which he repeated his arguments disclose a single example to demonstrate that the conclusions reached in relation to his conduct were impermissible, un-evidenced, or could not or should not lawfully have been regarded as unreasonable, vexatious or abusive within the definition in Rule 76. Amended Judgment was produced in breach of Rule 69

[20]The claimant argues that the amended Judgment could not be produced under Rule 69 as it was not the “correction of a clerical mistake or other accidental slip or omission.”

[21]A consequence of the claimant’s practice of sending 10 or 20 emails a day is that regularly when a referral has been made for a direction or a Judgment and the direction or Judgment is being drafted, further emails which may be of relevance to the decision are received. It is necessary to try to an identify those which were raised with the Judge whether directly by the claimant at a hearing or because they have been referred to the Judge by the casework team at HMCTS. The claimant appears to believe that the mere fact that he sends an email has the consequence that a Judge is instantly aware of it. That is an absurd fallacy.

[22]The process of endeavouring to distinguish between the emails which were sent to the Tribunal made the production of the Judgment and reasons of 1 July 2022 far longer and more complex than it needed to be. I consequence, the Judgment contained an error, as I had seen an email of 15 May 2022 in which the claimant applied for reconsideration (as detailed below). The process of reflecting such changes in the Judgment caused there to be several drafts.

[23]When sending the Judgment for handing down to the parties, I attached the wrong draft, which was incomplete. That is apparent from one paragraph of the Judgment that was obviously incomplete. That is a clerical mistake or an accidental slip. A certificate of correction and the amended Judgment were issued using red font and underlined text to enable the parties to identify what the changes were.

[24]On re-reading the Judgment I note that a number of typographical errors remain; I apologise for that but am certain that the Judgment remains sufficient clear and capable of comprehension.

[25]The claimant has not shown that there was a breach of Rule 69, not that it would be in the interests of justice to vary or revoke the costs Judgment as a result. The Judge committed fraud on the court by refusing the claimant’s application for a preliminary hearing to hear the claimant’s argument of issue or cause of action estoppel

[26]It is correct that I refused the claimant’s application for a separate preliminary hearing prior to that which was listed on 25 May 2022 to hear the arguments in relation to estoppel. The question of whether to postpone a hearing is a matter of judicial discretion. The claimant has not identified any basis on which it could sensibly be said that I took into account irrelevant factors or that I failed to take account of relevant ones in exercising my discretion not to postpone the preliminary hearing. As indicated in my previous directions, I refused the application because there was insufficient time to list a separate preliminary hearing before the preliminary hearing on 25 May 2022, it was not in the interest of justice to adjourn that preliminary hearing, and the claimant was not prejudiced by that decision as he could have made his arguments relating to estoppel during the preliminary hearing itself. He chose to leave the hearing rather than to participate in it. That was his choice, but the consequence was that he did not expand upon the arguments that he now seeks to advance.

[27]Insofar as the claimant alleges that my decision in relation to the application for a preliminary hearing to address the arguments on estoppel, or my costs judgment itself, was influenced by any form of masonic conspiracy, or other conspiracy involving the respondent, its representatives, the Regional Employment Judge, members of the police or any other third party, he has not advanced a single piece of evidence to support such wild and wholly unfounded and insulting allegations, beyond his repetition of his dissatisfaction with the outcomes and process adopted in relation to his claims. Fraudulent use of the court: rejecting an application for reconsideration in claim 1401244/2021 on 28.03.22 on the papers and then issuing a second rejection on 25 May 2022, a matter which the claimant had no notice of and which was heard in his absence.

[28]The claimant’s application for reconsideration which was made on 9 March 2022 was in respect of the deposit Orders in claim 1401244/2021. It identified that claim number at the outset of the application but referred to claim 140373/2021 in the body above the grounds. It was dismissed by Judgment dated 25 March 2022.

[29]On 15 May 2022 the claimant applied for reconsideration in a lengthy document entitled ‘app’. Although that document used the claim no 1401244/2021 the grounds of the application related to the Judgment striking out claim 1401373/2021. The application contained extension allegations of collusion and corruption directed at me, EJ Richardson and REJ Pirani and argued that I had failed to consider the arguments contained in his skeleton argument which was submitted before the hearing. To complicate matters, it formed one of 15 emails containing complaints about the hearing which were referred at the same time.

[30]I refused that application on 24 May 2022 on the grounds that it had previously been refused on 25 March 2022. That was in error, as the Judgment of 25 March related to claim 1201244/2021 not 1401373/2021.

[31]Having conducted the hearing on 25 May 2022, I determined that it would be in the interests of justice and would assist the claimant to receive full written reasons for the Judgment on recusal and costs. Due to need to hear other cases, there was some delay in securing time to write the reasons. Whilst writing the reasons, I reviewed the directions of the 24 May 2022 (the claimant had sent 92 emails to the Tribunal between the date of that direction and the conclusion of the written reasons) and identified that the Judgment of 28 March 2022 related to claim 1401244/2021 and not 1401373/2021. I noted the need to address it, but regrettably did not record that reasoning in the Judgment itself.

[32]For the avoidance of doubt, I heard no argument in relation to the application at the hearing on 25 May 2022 but decided it on the papers in chambers.

[33]Therefore, the Judgment on reconsideration sent on 1 July 2022 remedied the error of the refusal to consider the application on 24 May 2022. The error was caused by(a) the claimant using the wrong claim number in the title and header of the application and

(b) my belief, based on the detail of the referral and the title of the application, that it had already been determined.

[34]That course causes no prejudice to the claimant; it certainly does not establish a fraud on the court, nor does it demonstrate any basis on which it would be in the interests of justice to vary or revoke the order for costs; the decisions in question do not connect to the Judgment on costs.

Conclusion

[35]In any event, the claimant had raised all of those grounds (with the exception of those relating to Rule 69) to a greater or lesser extent before the hearing and they were therefore considered in reaching my conclusions on the application for costs.

[36]In so far as the application entreats me to reconsider and review my decision on matters of fact or arguments which I have previously determined, the Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd

[1982] ICR 440

[37]There was no denial of natural justice in this case; rather I considered the evidence and the parties’ arguments and found on balance that a costs order should be for the reasons recorded in the Judgment. That is the usual process of a Tribunal where facts and their consequence are disputed.

[38]Accordingly, I refuse the application for reconsideration pursuant to Rule 72 because it is not in the interest of justice for the Judgment to be varied or revoked.