Miss S Franklin v Public Services Ombudsman for Wales: 1602789/2023
EMPLOYMENT TRIBUNALS
Case No 1602789/2023
Between
Miss S FranklinClaimantPublic Services Ombudsman for WalesRespondent
Before
Employment Judge BromigeNot Received for claimantWritten Submissions for respondentDate 17 October 2024
JUDGMENT
[1]The Respondent’s application for costs under r.76 of the Employment Tribunal Rules of Procedure 2013 (as amended) is granted.[2]The Claimant is ordered to pay the Respondent’s costs in the sum of £3,608.40 inc VAT, as summarily assessed.
REASONS
[1]This is my judgment for the Respondent’s consolidated costs application dated 8th August 2024. The application was made following an open preliminary hearing before me, via CVP, on 5th August 2024 (“the August PH”).[2]At the August PH, I made an unless order under r.38(1) of the Employment Tribunal Rules of Procedure (“the ET Rules”), requiring the Claimant to provide various information explaining her absence at the August PH, by 19th August 2024. This order was made in the context of the Claimant having never attended a preliminary hearing in her case, and her continued failure to comply with various directions made by the Employment Tribunal. The Claimant failed to comply with the unless order, and accordingly her claims were struck out.[3]The Claimant issued her ET1 on 2nd November 2023, bringing a claim for (amongst other allegations) disability discrimination. The Respondent’s ET3 was received on 16th January 2024. As part of the r.27 sift, EJ Brace made various directions, including to provide further and better particulars 10.1 Judgment – no hearing - rule 60 February 2018 for her claim by 6th February 2024, and to provide medical evidence in support of her disability discrimination claim by 5th March 2024.[4]A preliminary hearing before EJ Ryan was heard on 20th February 2024 (“the February PH”). The Claimant did not attend this hearing. Whilst EJ Ryan acknowledged that the deadline for medical evidence had not yet expired, he noted that the Claimant was in breach of the direction to provide further and better particulars.[5]The Claimant had in fact applied to adjourn the February PH the day before, owing to her legal representatives having recently come off record, and ill health. This application was not supported by evidence, and was refused. The Respondent indicated an intention to apply for costs, which was recorded in the case management summary by EJ Ryan.[6]The Respondent did make that application on 21st February 2024. The Claimant replied to this application as part of a wide ranging letter relating to EJ Ryan’s case management order, where she stated “I made the Court aware as soon as possible that my current health made me feel overwhelmed and unable to represent myself”.[7]EJ Ryan amended the orders of EJ Brace to include a requirement from the Claimant to provide a schedule of loss by 5th March 2024. Anticipating that this order would be complied with, the Respondent was ordered to provide their response to the disability evidence by 19th March 2024.[8]The Claimant failed to fully comply with the 5th March 2024 direction, and time was extended by EJ Jenkins on 13th March 2024. The new deadline to provide disability evidence and the schedule of loss was 3rd April 2024. The Claimant did provide a document which could amount to a disability impact statement, but it was unsupported by medical evidence, save for a generic one page letter from her GP.[9]This deadline was also ignored, resulting in EJ Jenkins issuing a strike out warning on 8th May 2024. The Claimant again failed to respond, which resulted in REJ Davies extending time for the Claimant to respond to the strike out warning until 10th June 2024.[10]An open preliminary hearing was listed on 19th July 2024. The Claimant applied to have this hearing adjourned in an email on 9th July 2024, where she stated that she was currently in hospital having spinal surgery and did not know if she would be discharged prior to 19th July. The Respondent agreed to the postponement request at that stage.[11]In support of the postponement application, the Claimant attached a fit note, signed by a Doctor at Cardiff and Vale UHB, indicating that she was not fit for work (although may require a phased return to work) for a period of 4 weeks from 10th July 2024. 10.1 Judgment – no hearing - rule 60 February 2018[12]Whilst the case was postponed, EJ Harfield raised with the Claimant the issue of the extent of her medical evidence. In correspondence sent to the parties on 12th July, EJ Harfield stated: The Claimant has not provided sufficient evidence as to her fitness to attend the hearing by video. It is noted that she says (as of 9 July) that she remains in hospital and does not know if she will be discharged before the 19 July. That would certainly be a reason to postpone the hearing if it turns out to be the case. But the fit note that she has provided also says the claimant may be fit for a phased return to work. The Claimant must file medical evidence that specifically addresses the question of her fitness to attend a tribunal hearing by video and if she is unfit when she is likely to be fit (which is a different question of fitness to work)[13]On 18th July 2024, a notice of hearing for the August PH was sent to the parties. Login details for CVP followed on 29th July 2024. The Claimant replied to the email with the login details at 12:43hrs on 29th July stating “Thank you for your email. I am recovering from spinal surgery and am not well enough to attend”. She attached the 10th July 2024 fit note. She did not make any reference to the need for further medical evidence, as set out by EJ Harfield.[14]As I noted in my case management order, the Claimant was in breach of r.92 in both of her communications with the Tribunal on 9th July and 29th July by not copying the Respondent into that correspondence.[15]As I have already referred to, the Claimant did not attend the August PH. The unless order that I made required the Claimant to: Provide a letter from her General Practitioner containing the following information:1.1 The nature of the Claimant’s surgery in July 20241.2 When the Claimant was discharged from hospital after the surgery1.3 Why the GP says the Claimant is unable to attend a video hearing for her ET Claim.1.4 If the Claimant is unable to attend a video hearing (which is a distinct issue from whether the Claimant is fit to attend work), when will the Claimant be fit to attend(a) a video hearing(b) a hearing in person.[16]Alongside the unless order, I made directions for the Respondent’s cost applications, which required the Claimant to provide, by 19th August 2024:a. The last 3 months of all bank statements (for each account held), payslips, benefits received and any other sources of income;b. The last 3 months of credit card, savings or loan accountsc. A summary of any property owned, including how much equity is held in that property after mortgages, etc. 10.1 Judgment – no hearing - rule 60 February 2018[17]She was warned that if she failed to provide such information, then the Tribunal may consider that the Claimant has the means to pay any such cost order to the value as assessed by the Tribunal. The Claimant was also directed to provide any written submissions or objections to the cost application by the same date.[18]With the exception of an email on 5th August 2024 from the Claimant, which was sent after my Case Management Order had been emailed to the parties, and did not acknowledge the contents, nothing further has been heard from the Claimant. The Respondent’s Applications[19]The Respondent’s consolidated application is for a total of £3765.00 (inc VAT) for the period 20th February 2024 – 5th August 2024. It is in fact three distinct applications, namely:a. Costs arising from the February PH, on the basis of the Claimant’s unreasonable conduct (r.76(1)(a));b. Costs arising between 6th March – 8th May 2024, during the period where there were repeated breaches of orders after the CMO of EJ Ryan. Again, this is on the basis of unreasonable conduct under r.76(1)(a)c. Costs from the August 2024, again on the basis of unreasonable conduct under r.76(1)(a)
The Law
[20]The starting position is that an award of costs is the exception rather than the rule – see Gee v Shell (UK) Limited [2002] EWCA Civ 1479. Sedley LJ emphasised that the governing structure remained that of a cost-free, user friendly jurisdiction in which the power to award costs is not so much an exception to as a means of protecting its essential character. a. Rule 76(1)(a) of the ET Rules states: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted;[21]Dealing first with r76(1)(a), the headline description of ‘unreasonable conduct’ includes conduct that is vexatious, abusive or disruptive. When making a costs order on the ground of unreasonable conduct, the discretion of the Tribunal is not fettered by any requirement to link the award causally to particular costs which have been incurred as a result of specific conduct 10.1 Judgment – no hearing - rule 60 February 2018 that has been identified as unreasonable (McPherson v BNP Paribas (London Branch) [2004] ICR 1398).[22]In Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 42 per Mummery LJ at [40]: 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 if had.[23]If the Tribunal concludes that r.76(1)(a) is satisfied, the next stage is for the Tribunal to consider whether to exercise its discretion in favour of the party claiming costs with regards to all of the circumstances of the case.
Discussion and Conclusions
[24]I start with the Claimant’s conduct for the February PH, and in my judgment, her conduct was unreasonable. I agree with the Respondent’s analysis that by making an application to adjourn, she was exposing herself to a risk (by no means a certainty) of costs under r.76(1)(c) if the application had been granted, since the application was made 1 day prior to the PH.[25]In the circumstances, the application was refused, and the Claimant then chose to voluntarily absent herself from the hearing. She neither provided further medical evidence (which was the basis that the adjournment was refused), nor did the Claimant properly or adequately justify her absence in her letter to EJ Ryan on 5th March 2024.[26]Furthermore, the Claimant’s subsequent conduct supports my conclusion that her behaviour was unreasonable. Her absence from the February PH may have been excused (and this is in no way to condone a party who simply refuses to attend a hearing) if she had then complied with the various directions, and ensured that the case could progress effectively.[27]This brings me on to the second part of the Respondent’s application, and the Claimant’s repeated breaches of the orders of EJ Brace (23rd January 2024), EJ Ryan (20th February 2024), EJ Jenkins (13th March 2024), EJ Jenkins (2nd May 2024) and REJ Davies (9th May 2024). The Claimant was on notice from the warnings in EJ Ryan’s CMO, and then from EJ Jenkins’ strike out warning, of the need to comply with the Tribunal, and the consequences if she continued to do so.[28]In my judgment, the Claimant did breach those orders, and the difficulty I have, since the Claimant has not sought to justify those breaches or give any explanation, is that I have no evidence that might mitigate her actions.[29]Whilst on the face of it, it may seem a harsh decision to label the Claimant’s non-compliance with the order of EJ Brace re: disability evidence, given 10.1 Judgment – no hearing - rule 60 February 2018 that there was some information provided, her subsequent conduct in failing to comply with EJ Jenkins’ order (which extended time for the Claimant to provide such medical evidence) means that I am satisfied that the her cumulative conduct post February PH was unreasonable within the meaning of the ET Rules.[30]And then finally, the Claimant’s non-attendance at the August PH. The Claimant was aware, per the directions of EJ Harfield in granting the application to postpone the hearing in July, of the need for there to be proper medical evidence to support any further application to adjourn. In my judgment, the Claimant chose to ignore that guidance. When informing the Tribunal on 29th July of her ill health (and further in her 5th August email) she seems to adopt the position that her request for an adjournment had previously been granted, and so she should be afforded the same treatment. Such a position was unreasonable in the circumstances.[31]Further, and in support of that conclusion, the Claimant failed to provide any medical evidence as part of my unless order. Therefore she was aware from on or around 12th July 2024 of the need for proper medical evidence, she chose not to obtain it, nor to attempt to comply with the unless order on the same subject. That in my judgment is unreasonable conduct.[32]Whilst there was some attempt at compliance with the order of EJ Brace (as evidenced by the 5th March 2024 letter), overall, and applying Yerrakalva, I conclude that the Claimant’s conduct of her case, from 19th February 2024 onwards, has been unreasonable. She has continually breached the orders of the Tribunal, despite being given every opportunity to comply with several extensions of time, and she failed to attend either of the two preliminary hearings.[33]In those circumstances I am persuaded to exercise my discretion to order the Claimant to pay the Respondent’s costs. In doing so, I have regard to r.84 of the ET Rules, and the Claimant’s ability to pay any such award. The Claimant has failed to provide any evidence as to her means, and was aware of the consequences if she did not do so. I am therefore satisfied that the Claimant has the ability to pay any costs award.[34]In assessing the costs, and with reference to the three consolidated applications, I grant the following:a. Application 1 - £1250.00 + VAT for the costs of Counsel’s attendance at the preliminary hearing on 20th February 2024;b. Application 2 - £757.00 + VAT for the costs of a conference on 6th March 2024 and the Solicitor drafting the application for an unless order on 8th May 2024;c. Application 3 - £1000.00 + VAT for the costs of Counsel’s attendance at the preliminary hearing on 5th August 2024[35]I have reduced the amount of costs sought under the second application from £957.00 + VAT to £757.00 + VAT. This is because:a. I do not think that Counsel would have needed to advise on “disclosure issues” following receipt of the 5th March 2024 medical 10.1 Judgment – no hearing - rule 60 February 2018 evidence – it was clear that this was in breach of EJ Brace’s order and did not need Counsel’s input.b. There is a duplication of work for the unless order, referring to Counsel “redrafting” the Solicitor’s application. I have reduced Counsel’s fee by £100 + VAT to reflect this.[36]Therefore the Respondent’s application is granted, and the Claimant is ordered to pay the Respondent’s costs, as assessed, of £3,608.40 inc VAT.