Dr J Gosalakkal v University Hospitals of Leicester NHS Trust: 1900030/2012

EMPLOYMENT TRIBUNALS

Case No 1900030/2012

Between

In Person (on the first day only)Claimant

Mr. R Powell - CounselRespondent

Before

Employment Judge Heap

In person for claimant

Mr. R Powell - Counsel for respondent

Date 18 March 2020

JUDGMENT

FOLLOWING A DETAILED ASSESSMENT UPON detailed assessment, pursuant to the Judgment on costs sent to the parties on 9th June 2015, and in accordance with Rule 78 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, and the Civil Procedure Rules, the Claimant is Ordered to pay to the Respondent:(a) The sum of £75,640.86 for the costs so assessed, and

(b) The further sum of £7,290.00 for the costs of assessment. Case Number: 1900030/2012 JUDGMENT having been sent to the parties on 11 April 2017 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]By way of background, this hearing was listed to deal with a Detailed Assessment of the Respondent’s costs following a Costs Order made in their favour as a result of a Judgment sent to the parties on 5th June 2015 (“The Judgment”). That Judgment Ordered the Claimant to pay the Respondent’s costs to be assessed if not agreed as a result of his unreasonable conduct of the proceedings.

[2]I observed to the Claimant at the outset of the Detailed Assessment hearing that I acknowledge that he is dissatisfied with the Judgment but that his appeal to the Employment Appeal Tribunal in respect of the same has been dismissed and any appeal that he has lodged with the Court of Appeal has, as matters stand, not set the Judgment aside. This Detailed Assessment hearing was not, therefore, a further opportunity for the Claimant to seek to argue why he should not have to pay costs at all and for the Judgment to be revoked. That has already been dealt with previously, including by way of a Reconsideration application.

[3]I also made clear at the outset that the purpose of this hearing is not to argue against the decision made by Employment Judge Ahmed and members in their own Judgment that dismissed his claims and which later led to the application for costs from which this detailed assessment now flows. Equally, this hearing was therefore not an opportunity to revisit the Claimant’s dissatisfaction with that Judgment either.

[4]Despite that position, the Claimant returned on a number of occasions to those particular issues. I have not dealt with his arguments in that regard within this Judgment as those have already been exhaustively dealt with in earlier decisions and correspondence.

[5]However, I should observe here that despite the fact that the Detailed Assessment hearing was listed for two days, the Claimant remained for only one of those days and even then not to the conclusion of the day. In this regard, in the afternoon of the first day the Claimant abruptly left both the hearing room and the hearing centre and did not return. That came shortly after I made a determination on one of the Points of Dispute that he had raised that was not resolved in his favour.

[6]I considered whether to adjourn the Detailed Assessment hearing at that stage but determined that I would not. Firstly, there was no indication from the Claimant that there was any unexpected issue, such as ill health, which had caused him to leave the hearing. It appears that it was simply a conscious decision to do so in the light of a decision which he considered to be adverse to him. Secondly, there was nothing to suggest that the Claimant would participate in any reconvened hearing and the situation may therefore be no different than it was if there had been no adjournment. Thirdly, significant costs have been incurred in this case and it is of no benefit to either the Claimant or the Respondent for those to increase further. On that basis, I determined that the remainder of the hearing should proceed in the absence of the Claimant. I have taken into account written representations which he had made in his Points of Dispute when determining the remaining matters on the Bill of Costs that had not been dealt with before he absented himself from the remainder of the hearing.

[7]I should in fact also say a word here about those Points of Dispute. I have given the Claimant a considerable amount of latitude in the matters that he sought to argue, a point recognised by Mr. Powell on behalf of the Respondent during the course of the Detailed Assessment. That latitude has included allowing the Claimant to raise matters which his Points of Dispute in no way covered and also raising issues with regard to the Bill of Costs served by the Respondent of my own volition. This included the VAT element of the Bill of Costs (a matter dealt with further below) which resulted in a not-insignificant part of the Bill being withdrawn to reflect the fact that the Respondent will be able to reclaim the VAT element of the costs claimed. I took those steps given that the Claimant remains a litigant in person and, despite having also been given considerable earlier latitude in compliance dates for his Points of Dispute to be served, the fact that the overriding objective requires me to place him on an equal footing with the Respondent. It appeared to me that the Claimant had somewhat lost sight of the wood for the trees insofar as the matter of the Points of Dispute were concerned given his remaining and strident belief that the earlier Judgments in this case should be revisited. Ultimately, the challenges made by the Claimant to the Bill of Costs were somewhat vague, unsupported and without much if any thought as to what his contentions on what sums would have been reasonable would be (see for example on the issue of charging rates below). His overarching position was that he should not have to pay anything at all and that has unfortunately infected his thinking for this hearing and hindered significantly the Detailed Assessment process and his meaningful involvement within it.

[8]I have nevertheless and because of those issues given the Claimant a significant degree of latitude in arguing points during the portion of the Detailed Assessment hearing for which he remained, even where those did not feature in his Points of Dispute and I have assisted him insofar as ultimately it is permissible for me to do.

[9]I have before me the Bill of Costs (which as originally drawn stood at £98,321.23), the Points of Dispute served by the Claimant and other relevant documentation within a hearing bundle prepared by the Respondent and which ran to 256 pages. I have also had the benefit of sight of the original files of the Solicitors instructed by the Respondent, which run to some 27 lever arch files. I have heard oral representations from Mr. Powell on behalf of the Respondent and also from the Claimant on his own behalf during the part of the hearing for which he was in attendance.

THE LAW

[10]The relevant principles to be considered are as set out in the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 and, particularly, Rule 78 which provides as follows: The amount of a costs order “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; or, in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions) 1993, or by an Employment Judge applying the same principles; (c)order the paying party to pay the receiving party a specified amount as reimbursement of all or part of a Tribunal fee paid by the receiving party; (d)order the paying party to pay another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses (of the kind described in rule 75(1)(c)); or (e)if the paying party and the receiving party agree as to the amount payable, be made in that amount. (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative shall be no higher than the rate under rule 79(2). (3) For the avoidance of doubt, the amount of a costs order under subparagraphs (b) to (e) of paragraph (1) may exceed £20,000. THE POINTS OF DISPUTE

[11]The Points of Dispute served by the Claimant in response to the Respondent’s Bill of Costs are included in the hearing bundle at pages 98 – 103 and include 17 points, some of which overlap with each other and others of which can be conveniently dealt with together. I have nevertheless considered all points contained therein and have dealt with each part in turn and after hearing oral representations from the Respondent and also the Claimant for the period when he was present at the Detailed Assessment hearing.

[12]I turn then to deal with each of the Points of Dispute raised by the Claimant. Point One

[13]Point one of the Points of Dispute is not disputed on behalf of the

[14]This point deals with the fact that the Claimant notes that the Judgment Ordered that no account should be taken of costs incurred prior to 27th May 2013. That is reflected by paragraph 120 of the Judgment and it is not in dispute.

[15]Although the Claimant has not highlighted any instance in the Bill of Costs where costs pre-dated 27th May 2013, I did in fact identify two occasions where that had occurred. In this regard, the Bill of Costs did in fact include costs incurred on 3rd May 2013 of £513.00 (page 53 of the hearing bundle). The Respondent agrees that those costs should not feature on the Bill and they have therefore been disallowed.

[16]Similarly, item 30 at page 68 of the hearing bundle is also an entry of costs from 3rd May 2013 and as such I have reduced the bill by the sum of £148.50 to take account of that.

[17]Those reductions are set out in the revised Bill of Costs submitted by the Respondent at my direction after the conclusion of the Detailed Assessment Point Two

[18]Point two of the Points of Dispute is not disputed on behalf of the

[19]This reflects the fact that the costs to be assessed are to relate only to the complaints of detriment contrary to Section 47B Employment Rights Act 1996 and the claim of automatically unfair dismissal pursuant to Section 103A Employment Rights Act 1996 and not to the claim of “ordinary” unfair dismissal. Adopting the words at paragraph 14 of the decision of the Employment Appeal Tribunal when considering the Claimant’s appeal against the Judgment, those costs will have to be disentangled from the costs incurred with regard to the “Whistleblowing” claims. The disentanglement issue is dealt with further below. Point Three

[20]The third point of dispute raised by the Claimant is that it is said that it was the Respondent’s late introduction of what is referred to as the “time limit argument” (i.e. the matter of jurisdiction) which took up six days of the hearing before Employment Judge Ahmed and members. The Claimant has expanded upon his argument in that regard during the course of the hearing and, as will become clear below, I have afforded him a considerable amount of latitude in permitting him to expand substantially on this point from that set out in the Points of Dispute.

[21]In essence, his contention is that aside from the issue of late raising of the “time limit argument”, a matter which I understand the parties to be agreed was to be dealt with at the main hearing, the Respondent had also requested a postponement of a scheduled hearing, which at that time had been due to commence on 25th April 2014.

[22]It is the Claimant’s case that matters were misrepresented to Employment Judge Hutchinson at a Preliminary hearing on 3rd April 2014 with the result that Employment Judge Hutchinson was effectively persuaded to postpone the 25th April hearing. It is the Claimant’s case that given that was done on a false footing, that is that the Respondent made representations that this was necessary because of a pending GMC hearing, then costs incurred after the date when the hearing should have commenced on 25th April 2014 should not fall at his door.

[23]I have heard representations from the parties on those matters and considered them carefully. I deal firstly with the initial point raised by the Claimant in respect of what is referred to as the late introduction of the time limit argument. It is the Respondent’s case in this regard that those matters were raised approximately 6 months prior to the commencement of the hearing and there was a dispute on the facts in relation to that issue. However, I do not need to resolve that on the basis that it is clear from the judgment of Employment Judge Ahmed that the Claimant’s detriment complaints had in fact been presented out of time. It is also clear from paragraph 6 of the Judgment of Employment Judge Ahmed and the members that that was not a matter which became clear until the first day of the hearing in all events when the last act of detriment complained of was specifically identified by the Claimant. Until that identification had taken place, it was somewhat difficult, it seems to me, for the Respondent to have honed any jurisdictional arguments. Paragraph 6 of the Judgment of the Ahmed Tribunal appears to me to clearly lay the blame for the lack of clarity in the Claimant’s court and not that of the Respondent and it is difficult therefore to see how his arguments in this regard could stand.

[24]More importantly than that, however, jurisdiction is a matter which strikes at the heart of any Tribunal claim. If it is the case that a claim has been presented “out of time” (and assuming that there are no grounds to extend time to allow the complaint to be considered) then the Tribunal quite simply does not have jurisdiction to entertain the complaint. Therefore, irrespective of whether the Respondent raised the issue at the outset of the proceedings or part way through, it would in all events have had to have been one which was attended to by the Tribunal at the hearing when that matter became apparent to them. It was not a matter that the Tribunal could possibly have ignored.

[25]Therefore, irrespective of whatever stage the Respondent raised the jurisdictional argument this has no bearing on the costs issue as those matters would have had to have been dealt with anyway once the Tribunal became alive to the fact that the claim appeared to be out of time, as indeed was dealt with by Employment Judge Ahmed and his members. There is, therefore, nothing in the Claimant’s contention that six days of hearing time should be discounted on account of what he says to be a late introduction of the time limit point by the

[26]The second aspect of the Claimant’s argument relates of course to the issue of the postponement of the hearing listed for 25th April 2014, a matter which was considered by Employment Judge Hutchinson at a hearing on 3rd April 2014.

[27]I have considered the Order made by Employment Judge Hutchinson. Although his decision to postpone the hearing listed for 25th April 2014 did relate in part to representations made concerning an ongoing hearing before the GMC, it is quite clear that that was not the sole basis for the postponement of that particular hearing. Particularly, I note that at paragraph 1.4 of Employment Judge Hutchinson’s Order, he made it clear that both parties had agreed that the 10 days of hearing time which had been allocated would be insufficient time to hear the claim and that they had asked that it be listed for 15 days instead.

[28]Whilst the proceedings in the final event did not run for 15 days, they did nevertheless occupy 13 days of Tribunal time (although I understand there to have been only 11 effective days of hearing time). I should observe that it appears to me that that reduced time estimate was on the basis that there were a number of witnesses who did not give evidence on the basis that the “Whistleblowing” claims had already been dealt with as a preliminary matter by the Ahmed Tribunal who had determined that they had no jurisdiction to consider them. On that basis, it is not surprising that those witnesses did not give evidence and also that the hearing was shorter than had originally been anticipated on 3rd April 2014 when some 15 days of hearing time were being suggested as being needed. However, whatever the position, it is abundantly clear that had the hearing remained in the list for 25th April 2014 the parties were agreed that it would not have been completed in the 10 days that had been allocated. The parties made representations to Employment Judge Hutchinson that the claim would take substantially longer than the 10 days that it was already listed for and that played a not inconsiderable part in the decision to postpone the hearing.

[29]Paragraph 1.9 of Employment Judge Hutchinson’s Order encapsulates all reasons for postponement, including the length of hearing time and preparedness. Therefore, I need make no determination as to whether the postponement was necessary as a result of the GMC proceedings given that it was also postponed on other grounds and, particularly, that the time allocation was insufficient.

[30]On that basis, I reject the Claimant’s contention that costs should be limited to the date of the original hearing of 25th April 2014. Point Four

[31]Point four is essentially the same argument or an expansion thereof of point three in that the Claimant contends that the Respondent should have raised the jurisdictional arguments at hearings which had been conducted for the purposes of case management earlier in the proceedings.

[32]I have already dealt with that argument above and therefore do not need to rehearse those reasons again here. Point Five

[33]Point five of the Claimant’s Points of Dispute references the death of Mr. Patterson, who was initially the solicitor at Messrs Browne Jacobson with conduct of the matter on behalf of the Respondent. Mr. Patterson sadly passed away during the course of the early stage of these Tribunal proceedings.

[34]It is not clear, and the Claimant has not been able to help me with this point at the Detailed Assessment hearing, as to how that matter affects the content of the Bill of Costs. The Claimant has referred me to the fact that in his view Mr. Patterson would be a “main witness”, but that does not take matters any further forward as to the content of the Bill of Costs and what sum should be Ordered to be paid upon Detailed Assessment. As I say, the Claimant has not been able to assist me in his oral submissions on that point and therefore I say no more about that particular matter. Point Six

[35]Point Six, as expanded upon by the Claimant at the Detailed Assessment hearing relates to the fees charged by Mr. Powell, who at all material times as represented the Respondent as Counsel instructed by Messrs. Browne Jacobson.

[36]In regard to this particular point, the Claimant takes issue with the fees incurred in respect of the various hearings which took place after 27th May 2013, including the substantive hearing before Employment Judge Ahmed and members and which are set out in the Bill of Costs. Although the Points of Dispute are limited to Counsel’s fees with regard to Mr. Powell for the relevant hearings, the Claimant has sought to expand that argument also to the charging rates of each of the fee earners assigned to deal with matters at Messrs Browne Jacobson with regard to all work done. Again, in accordance with the degree of latitude that I have afforded to the Claimant, I have allowed him to argue those matters at this Detailed Assessment hearing and I deal with Counsel’s fees and solicitors fees below. (i) Solicitors fees

[37]The Claimant contends that the rates charged by the solicitors who undertook relevant work on this matter are excessive and ought to be reduced. As is set out below, the fees are in fact less than the published guideline rates in the Guide to Summary Assessment of Costs which I have considered with the parties during the Detailed Assessment hearing. The Claimant does not suggest that those guideline rates are not applicable or that some other rates should be applied. He appears to argue that simply because there are guideline rates, those do not need to be applied. He points for example to the fact that a Consultant Neurologist can charge £300.00 per hour whilst he himself may only charge £100.00 per hour and that therefore the rates should be discounted, although he does not suggest what rate(s) he contends would be appropriate.

[38]The solicitors who undertook work on this matter were as follows:(i) Ian Patterson and Helen Badger (Grade A Partners) at a rate of £145.00 per hour;

(ii) Rachael Jellema (an Associate Solicitor with circa 9 years post qualification experience (“PQE”) at a rate of £135.00 per hour;

(iii) Gemma Steele (An Associate Solicitor with circa 7 years PQE) at a rate of £135.00 per hour; and (iii) A number of trainee solicitors at a rate of £70.00 per hour.

[39]I have seen the invoices in respect of those individuals and the applicable hourly rates are set out above. Those hourly rates are in fact substantially lower than those which could have been charged based on the published guideline rates in the Guide to Summary Assessment of Costs. In that regard, Band 1 for Nottingham City Centre sets out the following rates:(i) Grade A Partner - £217 per hour;

(ii) Grade B fee earners (i.e. those with over 4 years PQE) - £192 per hour: and

(iii) Grade D fee earners (trainee solicitors) - £118 per hour.

[40]The rates charged by Browne Jacobson in regards to each of the fee earners who undertook relevant work was therefore substantially below those guideline rates. They are eminently reasonable fees to be charged having regard to the PQE of the fee earners concerned and the fact that the firm practices from city centre offices. I therefore see nothing unreasonable in relation to the fees which have been charged with regard to the charge out rates of each of the fee earners concerned and I therefore reject the Claimant’s contention that lower rates should be substituted. (ii) Counsel’s fees

[41]Perhaps somewhat unusually, the fees of Mr. Powell are not expressed in terms of a brief fee and refreshers as would normally be the case. Instead, Mr. Powell has applied what is referred to in his invoices as a “unit price”.

[42]However, what is clear is that the total time that Mr. Powell has spent on the matter is some 316 hours in total and that when that time is taken into account as against his fees charged, it takes the applicable hourly rate that he has been working at to less than £85.00 per hour. Moreover, it is clear from the invoices that he has discounted work done and has also dealt with a number of conferences without any charge at all. For Counsel with the number of years call of Mr. Powell (year of call: 1991), the fees charged cannot sensibly be said to be anything other than reasonable. They are below that which much more junior barristers might have levelled if instructed in these proceedings.

[43]Indeed, when taking into account those matters into account, I am satisfied from the time spent by Mr. Powell and the arguments before me that his fees are in fact on an hourly basis less than that which would be charged by a trainee solicitor on the Guideline rates. While those matters are not strictly comparable, it is clear that the fees as charged, having regard to the amount of work which has been done, are manifestly reasonable taking into account the year of call of Mr. Powell and the complexity of these proceedings and the time that has been occupied dealing with them.

[44]I therefore reject the Claimant’s contentions that the fees charged by Counsel are in any way excessive and I make no reduction in the sums charged other than those areas otherwise dealt with below.

[45]On that basis, I am entirely satisfied that there is nothing within the rates charged, either by Browne Jacobson or otherwise those incurred by way of Counsel’s fees, that could be said to be unreasonable in respect of this matter and I reject the Claimant’s arguments to the contrary. Point Seven

[46]The Claimant again raises in respect of this point the fact that the jurisdictional issue was not identified earlier in the proceedings, either by the Respondent or by the Employment Tribunal. The arguments advanced in this regard do not, however, take matters any further forward than those that I have already dismissed with regard to points three and four above.

[47]However, during the course of the discussion in respect of this particular point, the Claimant has raised again his general dissatisfaction both with the Judgment and also the decision of Employment Judge Ahmed and his members to dismiss the claims that he had brought. However, as outlined previously and also at the outset of these proceedings, that is not a matter which I am either prepared or indeed able to re-open. All of the Claimant’s arguments in this regard have already been ventilated previously, including at appeal stage, and this Detailed Assessment is not an opportunity to seek to argue those matters again. Therefore, there is nothing raised by the Claimant in respect of this Point of Dispute which takes matters further forward in relation to this point seven and therefore I say no more about it. Point Eight

[48]This part of the Points of Dispute raises the exact same issue as is dealt within his expanded argument in respect of point three above. Again, the Claimant represents that as the Respondent had caused there to be a postponement of the hearing scheduled to begin on 25th April 2014, any costs incurred after that date should be disregarded. I have already rejected that argument above and the same rejection therefore applies to this further point eight. Point Nine

[49]The Claimant essentially contends here, as I understand it, that given that the Ahmed Tribunal dismissed the “Whistleblowing” claims as a preliminary matter, there was little or no discussion after that on those issues and the predominant part of the hearing was in respect of the “ordinary” unfair dismissal claim which I have not made subject to any Order for costs. In essence, the Claimant further contends that it is unjust that he should have to pay any costs in relation to the “Whistleblowing” complaints when the merits of those complaints were never finally determined.

[50]Leaving aside the fact that this argument appears to conflict with the Claimant’s contention that the jurisdictional issues took six days to determine (see point three above), it is clear that the Tribunal had to deal not only with the detriment complaints where it found that it lacked jurisdiction but also the question of whether protected disclosures had been made at all and, if so, whether they were the reason or principle reason for the dismissal so as to deal with the claim brought under Section 103A Employment Rights Act 1996.

[51]There can, in my view, be no reasonable suggestion that significant costs were not incurred in respect of preparation for and the hearing of the “Whistleblowing” elements of the claim in addition to the ordinary unfair dismissal complaint.

[52]There will be, as detailed below, a “disentanglement” of those costs but it cannot reasonably be said that the Claimant should pay nothing at all in respect of what was clearly significant preparation and representation for the “Whistleblowing” claims. Point Ten

[53]Point ten of the Points of Dispute is essentially a matter in two parts.

[54]The first issue is that the Claimant contends generally that there had been what he has referred to as a “significant escalation” in costs during the latter stages of the proceedings, which he does not believe were essentially genuinely incurred at that time. The problem in relation to this position is that the Claimant has failed to file Schedule G as required by paragraph 1.8 of my original case management Order, despite the opportunity to do so on more than one occasion.

[55]Therefore, I have made it clear that I am not, as the Claimant’s appears to wish to do now, intending to pick through item by item of some 27 lever arch files of correspondence, to see what was done in respect of each of those matters contained within the Bill of Costs and to then allow the Claimant the opportunity to challenge any with which he does not agree. The time for dealing with that situation has now since passed and I am satisfied that the Claimant has had the opportunity to deal with that at a much earlier point and has simply chosen not to do so. Moreover, there is nothing at all to support the Claimant’s contention that Browne Jacobson have manufactured costs or somehow skewed their bill so that the balance falls at the conclusion of the proceedings. Indeed, it would in all events not be unusual for a significant proportion of costs to be incurred towards the conclusion of the proceedings given the need for preparation for and attendance at the substantive hearing.

[56]The second aspect of the Claimant’s submission on point ten is with regard to the “unpicking” of costs incurred in respect of the ordinary unfair dismissal claim (in respect of which there is no Order for costs) and the Whistleblowing complaints (for which costs have been Ordered to be paid). That is an issue which has been dealt with below and in respect of which appropriate deductions have been made from the Bill of Costs. Point Eleven

[57]Again, this point relates to the postponement of the hearing originally scheduled for 25th April 2014, which has already been dealt with earlier in this Judgment with regard to point three The Claimant has confirmed that he has no further submissions to make in respect of point eleven, over and above those already made above, and therefore I say no more about this particular issue. Point Twelve

[58]Point twelve essentially seeks to again challenge the Judgment and argue that no Order for costs should ever have been made in favour of the Respondent. As highlighted to the parties at the outset, that is not a matter which it is open to the Claimant to seek to argue and re-open at this Detailed Assessment hearing. Therefore, I say no more about it. Point Thirteen

[59]Although it initially appears that this particular point is a further expansion on the argument set out at point twelve, the Claimant has informed me that in fact this is a reference to the “disentanglement” point which was referred to at paragraph 14 of the decision of the Employment Appeal Tribunal upon the Claimant’s appeal against the Judgment.

[60]Again, that is a matter which is attended to below. Point Fourteen

[61]Again, essentially this point of dispute centres on the Claimant’s argument that the Judgment is wrong and that costs should not have been Ordered to be paid at all. The same conclusions therefore apply here as to point twelve above.

[62]However, the Claimant has expanded upon the issue and contends that as it will be inherently difficult to disentangle the costs of the ordinary unfair dismissal claim from that of the Whistleblowing complaints, it must be the case that only a nominal sum should be Ordered to be paid in costs. I do not accept that submission. It is clear that the Whistleblowing complaints – which I observe again included an allegation of automatically unfair dismissal – were a major part of the claim and clearly generated a significant amount of costs to be incurred. It is simply in my view misconceived to try to argue otherwise. The costs of the ordinary unfair dismissal claim will be subject to the disentanglement exercise envisaged by the Employment Appeal Tribunal and as referred to further below. Points Fifteen to Seventeen

[63]The Claimant has confirmed during the Detailed Assessment hearing that all remaining points set out in his Points of Dispute relate to his continued submission that the Judgment was wrong and that there should have been no Order for costs in the first place. For the reasons given in respect of point twelve above, I say no more about these arguments. Further argument at the Detailed Assessment hearing

[64]However, there is one further issue that the Claimant has raised in respect of the Bill of Costs. It is not a matter which is even alluded to at all within his Points of Dispute and Mr. Powell strongly opposes the matter being considered in view of the failure of the Claimant to raise the issue well before now.

[65]In view of that objection, I have therefore considered, in line with Rule 43 Civil Procedure Rules (“CPR”), whether I should allow that fresh matter to be ventilated by the Claimant. Ultimately, I determined that I would hear argument on the point notwithstanding the fact that I have given the Claimant more than ample opportunity to serve full Points of Dispute. Given that he has at all material times been unrepresented, and so as to ensure him a fair hearing, I permitted him to raise this additional argument and have it determined.

[66]The point in contention in this regard is that it is the Claimant’s case that costs should be limited to those incurred between 27th May 2013 and at the latest 17th November 2015 on the basis that that was the last day of the hearing before Employment Judge Ahmed and members. The Claimant contends that as the Order for costs related to his unreasonable conduct in pursuing the claim after the Deposit Order was made, there should be a cut off in respect of costs incurred at the point that the claim failed and final judgment was given by Employment Judge Ahmed. There should, the Claimant argues, therefore be no account taken of any costs incurred after the claim was dismissed on 17th November 2015.

[67]Mr. Powell argues against that and contends that the costs which have been incurred essentially flow directly from the Claimant’s unreasonable conduct as the Judgment had found it to be.

[68]Having noted representations on the point from both parties, I have concluded that the issue should be resolved in favour of the Respondent. My reasons for doing so arise from the provisions of Section 78(1)(b) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. This provides that where an Employment Judge is carrying out a detailed assessment, then this is to be dealt with under the same principles as that which would be dealt with in the County Court by reason of the Civil Procedure Rules 1998.

[69]On that basis, it is clear that costs up to and including this Detailed Assessment hearing would be taken into account if one was to follow the provisions of the Civil Procedure Rules. That is what I am required to do by virtue of Rule 78(1)(b) and it cannot be that there would be a different result in the Tribunal from the way that the matter would have been approached in the County Court had the claim been sent there for Detailed Assessment. I have therefore determined against the Claimant’s argument that costs should only be allowed if they were incurred during the period 27th May 2013 to 17th November 2015.

[70]It was at this stage that the Claimant left the Detailed Assessment hearing and did not return for the remainder. Disentanglement

[71]As referred to above, the Judgment Ordered costs only to be paid with regard to the Whistleblowing claims (both of detriment under Section 47B Employment Rights Act 1996 and of automatically unfair dismissal contrary to Section 103A of that Act). No Order for costs was made in respect of the “ordinary” unfair dismissal claim and therefore it falls that there must be a deduction from the Bill of Costs to reflect the fact that costs would still have been incurred defending the ordinary unfair dismissal claim, including at a final hearing, and that it would be unjust for a reduction not to be made to the Bill to reflect that. I must therefore disentangle the costs which would have been incurred in relation to the ordinary unfair dismissal claim for which there has been no order for costs to be paid from those which were incurred in respect of the unreasonably pursued Whistleblowing complaints.

[72]That was an issue set out in the Judgment of the Employment Appeal Tribunal at paragraph 14 of the decision of the Mrs Justice Simler when considering the Claimant’s appeal against the Judgment. The relevant part of that decision said this: “At the detailed assessment the Judge conducting the detailed assessment will have to disentangle those costs that are only attributable to the whistleblowing complaints or only attributable to the ordinary unfair dismissal complaints and if and to the extent that the costs are attributable to both will have to make some form of apportionment.”

[73]Mr. Powell accepts that there must be some reduction to the Bill of Costs to deal with the disentanglement of the ordinary unfair dismissal costs. He and the Claimant are poles apart as to how that should be achieved.

[74]Mr. Powell contends that the bulk of the work was in relation to the Whistleblowing complaints and therefore any reduction should not be significant.

[75]The Claimant argues to the contrary and contends that disentangling the costs would be impossible and so only a notional sum should be paid to represent the costs of the Whistleblowing claim. He does not suggest an amount but I take from his general representations this to be an extremely minimal sum. I have already set out above in respect of point fourteen above why I have rejected that argument.

[76]In truth, the reality of the situation in my view is one which falls between the two stools. It is, however, a difficult exercise and one ultimately which I can only take a relatively broad brush approach in relation to with regard to some elements of the Bill of Costs.

[77]However, one area where the task is slightly more straightforward is in respect of the substantive hearing before Employment Judge Ahmed and members. That hearing would have been necessary in all events to deal with the ordinary unfair dismissal claim, although of course it would not have been nearly so lengthy. It is clear having heard from the parties that there would have had to have been three witnesses who would have had to have attended on the part of the Respondent to deal with the ordinary unfair dismissal claim alone. Those would have been the investigating officer, appeal officer and dismissing officer. I do not accept the Claimant’s representations that it would have needed more than that as that is the norm in Tribunal proceedings and I have not been taken to any other witness statement of any other individual, which suggests that anyone else would have been necessary. The other witnesses were to deal with the issues and facts arising from the Whistleblowing complaints.

[78]I have seen the witness statements of the three individuals referred to above. They do not occupy a significant number of pages and there is a significant dispute between the parties as to the length of time that it took for each of them to give evidence. Whilst the Respondent had taken a note of the proceedings, which appears within the volume of correspondence files which are before me, unfortunately whomever had taken that note had neglected to place any timings on cross-examination. There is therefore a dispute between the parties with the Respondent indicating that cross-examination of those three individuals was likely to have taken a day and a half to two days at the most. The Claimant’s position is that they would have taken some two days.

[79]I have, in the absence of any timings being recorded in the attendance note to which I have been taken, resolved that matter in favour of the Claimant. Three days for the Respondent’s evidence on the unfair dismissal claim issues alone would not be disproportionate. There would also still have had to have been cross examination of the Claimant as to the unfair dismissal claim (albeit not for the six days that his evidence did in fact occupy) and submissions to have been made on the claim. Moreover, there would still have been a relatively significantly sized hearing bundle to consider. I have a copy of the hearing bundles before me, around 600 pages of which appeared to relate purely to the Whistleblowing complaints. That is not to say that there were not more than that, but certainly those 600 pages which pre-date February 2011 can only be said to relate to the Whistleblowing complaints. There would still therefore have been a sizeable bundle for the ordinary unfair dismissal complaint alone.

[80]I can only take a relatively broad brush approach in relation to how much Tribunal hearing time would have been occupied in respect of the unfair dismissal claim element only. Taking into account the matters set out above, sues, I am satisfied that a period of no more than five days at most would have been needed to hear all of the evidence in the ordinary unfair dismissal claim. The Respondent’s Bill of Costs as originally drawn was therefore reduced by the costs of five days of hearing time, both in respect of Solicitors costs and Counsel’s fees. That reduction is set out in the revised Bill of Costs submitted by the Respondent at my direction after the conclusion of the Detailed Assessment

[81]That deals then with a reduction of costs from the Bill as drawn in regards to the hearing itself, but there are also the other costs incurred outside the hearing and, most notably, in preparation for it. Again, that is an element of the Bill of Costs which requires disentanglement.

[82]Clearly, this was a case where costs would have been incurred if the Claimant had simply pursued the ordinary unfair dismissal claim. There can be no question about that. However, this is a case which generated a significant amount of correspondence. I have before me at least 27 lever arch files representing the original files of Browne Jacobson, which I cannot conceive in any circumstances would have been generated by what should have been an ordinary and straightforward unfair dismissal claim. The matter was clearly seriously complicated by the Whistleblowing claims, not only in respect of hearing time but in regards to disclosure, witnesses and preparation and dealing with the issues generally. It is impossible to go through each activity on the Bill of Costs and attribute them to either one or other of the Whistleblowing complaints or the ordinary unfair dismissal claim. The two sets of complaints were inextricably linked; not least the fact that the Claimant was alleging automatically unfair dismissal contrary to Section 103A Employment Rights Act 1996. Therefore, in respect of those costs I consider that the only possible way forward is to make an apportionment.

[83]The parties are once again diametrically opposed in relation to the assessment which should be made in relation to that matter. Mr. Powell agrees with my assessment this can only be done effectively on a percentage basis given the circumstances and the fact that the claims were interwoven with each other as was in turn the work that had to be done in respect of each. The Claimant’s position is more uncertain on that but he does not argue strenuously, if I can put it that way, against a percentage reduction basis.

[84]Mr. Powell puts the percentage of work that would have been done in a normal unfair dismissal claim as against that which was done of around 5% - 10% of the overall work. The Claimant’s position is diametrically opposed and he contends that 90% of the work which was done would still have needed to have been done simply to deal with the ordinary unfair dismissal claim. He therefore contends that there should be a reduction of 90% of the bill to take account of that.

[85]I have considered both aspects of those submissions carefully. I do not agree that either of them represent an accurate assessment, but the Respondent’s position quite clearly is towards the more accurate end of the spectrum. It is very difficult to ascertain without going through each item individually what proportion of costs would have been incurred on the ordinary unfair dismissal claim, but I can certainly say that it would not have been the volume of work which I have before me in the 27 lever arch files. That much is clear and obvious having regard to the issues which were at stake in the unfair dismissal claim and the length of the hearing as I have ascertained it to be.

[86]I consider in the circumstances that an appropriate percentage reduction in these circumstances of the costs other than those in respect of the hearing is 20% to take account of the work which I am satisfied would have had to have been done in respect of the unfair dismissal claim in all events. That reduction is set out in the revised Bill of Costs submitted by the Respondent at my direction after the conclusion of the Detailed Assessment hearing and which is annexed to this Judgment. Miscellaneous

Issues

[87]There are a number of issues on the Bill of Costs which I have raised with the parties of my own volition, notwithstanding the fact that those do not feature in the Points of Dispute and were not otherwise raised at all by the Claimant.

[88]Although the Claimant does not accept this to be the case, I have sought to do so in order to ensure fairness to him and so that he is placed on an equal footing with the Respondent in respect of arguments available to him in respect of this hearing.

[89]I have raised and made reductions to the Bill of Costs as originally drawn to take into account the following: (i) Value Added Tax (“VAT”)

[90]After enquiries that I made of Mr. Powell, it transpired that Counsel’s fees as set out in the bill breakdown at page 72 of the bundle were said to be in the sum of £31,200.00. That transpired to be a VAT inclusive amount. Mr. Powell accepts that the Respondent can in fact reclaim that element of VAT on legal costs and therefore this should not properly fall to be part of the bill. It is accepted on that basis by Mr Powell on behalf of the Respondent that the figure for Counsel’s fees which should feature on the bill is £26,400.00 and not £31,200.00. The Respondent therefore accepted that a reduction of £4,800.00 was appropriate. That reduction is set out in the revised Bill of Costs submitted by the Respondent at my direction after the conclusion of the Detailed Assessment hearing and which is annexed to this Judgment.

[91]As set out above, I have otherwise found Counsel’s fees to be reasonable and proportionate having regard to the work undertaken, the length of the hearing and the complexity and importance of the proceedings. (ii) Attendances

[92]I have also caused a reduction to be made from the Bill of Costs in respect of item 4 at page 57 of the hearing bundle. That item provides for a charge for attendance by a trainee solicitor, in addition to that of a partner and Counsel, at a conference with both Counsel and witnesses. Whilst that individual apparently took notes of the conference, that is a luxury which could clearly have been avoided with the partner who was in attendance taking notes. There was no need for a trainee solicitor to also be present for that purpose. I have therefore disallowed £840.00 in relation to that aspect.

[93]I have also disallowed costs in relation to what is clear duplication for attendance at the full merits hearing. In this regard, not only was Counsel in attendance but also a Grade A partner and a trainee solicitor. I accept the explanation of Mr. Powell that the attendance of the Partner was necessary to provide him with assistance in complicated issues where he had had conduct on a day to day basis and from the outset. The trainee solicitor, however, was only there to take notes. There seems to me to be no reason why the Partner could not have stepped into the breach on those days when he was present to take notes and why he and a trainee solicitor were therefore required to be present at the same time. I have therefore disallowed costs for trainee solicitor attendance on that basis on 27th October (£560.01), 10th November (£448.01) and again on 17th November (£343.01).

[94]Those reductions are set out in the revised Bill of Costs submitted by the Respondent at my direction after the conclusion of the Detailed Assessment Costs of the Detailed Assessment

[95]The Respondent also submitted a bill of costs relating to the detailed assessment. The Claimant had stated only that he considered those to be “manifestly excessive”. He did not set out any other specific objection or area of challenge to the costs set out in that bill. The Claimant did, however, elect to leave the hearing before the conclusion of the same and before there was an opportunity to ask him to address those matters. Therefore, I have nothing from him to substantiate his contentions that those costs were excessive.

[96]That being the case, I have made no reduction in relation to that particular bill of costs for the Detailed Assessment hearing. Proportionality

[97]Overall, I need to say a word as to proportionality in relation to this matter given the amount of costs which I have allowed following this Detailed Assessment. I have had the question of proportionality in mind throughout this hearing and in the decisions that I have made on the Detailed Assessment of the Bill of Costs.

[98]I observe, however, in relation to the issue of proportionality what was at stake in this case. At one stage of the proceedings, the Claimant was claiming in excess of £2 million. The Claimant sought in the Detailed Assessment to downplay that position and that this was not, as he termed it, “a million dollar claim” but it is clear from the documents before me that that was not a matter that the Claimant recognised at the time as he continued during the course of the proceedings to submit updated schedules of loss in excess of £2 million. These were complex proceedings, with vast numbers of documents, where the Claimant was making his position abundantly clear that if he was to succeed he intended to ask the Tribunal to award very substantial compensation indeed.

[99]It is also necessary to take account of the volume of correspondence and other communications which this matter generated. This ran to some 27 lever arch files of correspondence, all of which I had before me for the purposes of the Detailed Assessment hearing. Although that is a surprising number of solicitor’s files for one case, it is perhaps in keeping with the fact that the Tribunal’s own files in respect of this case runs to three large files of papers in addition to the volumes of hearing bundles. That of itself is a rare occurrence for such a vast amount of correspondence to have been generated simply on the Tribunal file itself (and when considering that the Tribunal will have had significantly less correspondence to deal with that the Respondent) and I consider that indicative of the amount of paperwork generated by this matter.

[100]I also take into account in dealing with the question of proportionality the complexity of these proceedings. As can be seen by the judgment of Employment Judge Ahmed and members, the Claimant had made a number of allegations of detriment and alleged that he had made a considerable number of protected disclosures. All of those matters had to be dealt with in the context of the Whistleblowing claim. They were matters which the Respondent was perfectly entitled to divest resources into dealing with and, indeed, given what was at stake which it was necessary for them to do. Reduced Bill of Costs

[101]I have therefore reduced the Bill of Costs as originally drawn in the sums set out above. Those reductions are reflected in the Judgment sent to the parties on 11th April 2017 and in the revised Bill of Costs submitted by the Respondent at my direction on 7th April 2017 and which is annexed to this Judgment.

[102]At paragraph [38] the Employment Appeal Tribunal added that there are two dangers for a Tribunal to avoid: 102.1. The first danger is that the Tribunal may substitute its own finding for that of the employer forgetting in some circumstances there will be more than one course of act an employer can reasonably take. 102.2. The second is that the Employment Tribunal may adopt too lax an approach to the range of reasonable responses test.

[103]It said that it is well established the standard of review is higher than the Wednesbury unreasonableness test. An Employment Tribunal is expected to engage carefully the different aspects of the dismissal process and apply objectively, reasonable standards to the section 98(4). What is reasonable may depend on what is at stake. More may be expected of a reasonable employer where the allegation is a misconduct or the consequences to the employee if they are proven will be particularly serious.

[104]I have already summarised the case, but the Employment Appeal Tribunal did so also. Without repeating it, it is quite clear that the Tribunal found as a fact that 104.1. there was a serious clash of personalities in the paediatric department at the respondent; 104.2. matters came to ahead in about 2010 after the first report commissioned into the matters; 104.3. Dr Gosalakkal was unhappy with the contents of that report and then he wrote derogatory tweets on Twitter; 104.4. this resulted in further reports and on 7 February 2011. That is when he was excluded from his position because of the breakdown in relationships. 104.5. Dr Gosalakkal used a social networking site to make defamatory statements, a continued use of e-mails in an unacceptable manner and a refusal to engage in a way forward with the review being conducted by external consultants. 104.6. Matters then progressed to a disciplinary process in which there are six allegations; only five of which were found proven but which covered both matters before and after February 2011 when he was excluded. Page 15 of 18 104.7. Dr Gosalakkal alleged he made several protected disclosures which the Tribunal concluded either were not made or were made in bad faith. 104.8. The Tribunal thought it was quite apparent that this is a case with a complex pre-history to disciplinary proceedings because his ultimate allegation was the reason for his treatment at their hands was essentially because he was being picked upon by his colleagues.

[105]The Respondent’s position is that the bulk of this case concerns the whistleblowing allegations and that should be reflected in the amount by which I reduce the amount of costs that Dr Gosalakkal must pay to them and they put forward a figure of 30%. They suggest a figure of 50% or more would be wrong in law.

[106]Dr Gosalakkal unsurprisingly takes a very different point. He says when one looks at the case the questions raised would have had to have been gone through in any event and therefore he should pay only 10% of the costs. Dr Gosalakkal however accepted in his submissions voluntarily that the primary part of his case was the protected disclosure elements and that the claim of ordinary unfair dismissal and breach of contract were ancillary to his main claim.

[107]In my opinion a reduction of the costs in this case should be of the sum of 50%. I have come to that conclusion for the following reasons. 107.1. Even if this had been an ordinary unfair dismissal claim without the claims for protected disclosure and consequent detriment or automatic unfair dismissal a hearing would have been necessary in any event. It would have been necessary as part of that hearing to engage in detail to understand the facts preceding the exclusion in February 2011. Those allegations of difficulties between members of staff and allegations that Dr Gosalakkal had made complaints would clearly be relevant even to the question of ordering unfair dismissal because they would go to the question of whether or not the genuine reason for dismissal was misconduct or as an alternative some other substantial reason. That would have resulted in a lengthier than normal hearing. It would also have resulted in the bundles pretty much the same size as that which has been produced before the Tribunal. 107.2. There was also a claim here for wrongful dismissal and Employment Judge Heap did not find that that claim was unreasonable. Any claim for wrongful dismissal requires a Tribunal to engage in a fact-finding exercise as to what has actually happened in order to determine if objectively the Respondent has proven that the Claimant has fundamentally breached his contract of employment. That means therefore that a lot of the evidence put before the Tribunal would still have had to have been considered in detail by the Tribunal as part of the hearing in order to make those findings of fact. Page 16 of 18 107.3. Although the necessity to cover the history would be present, there would not be the same level of investigation. The focus would be on the decision-maker’s mind, the investigation and on the motive for any information fed into the dismissal process. 107.4. Documents that have been lodged before the Tribunal and a lot of the work done in this case would have been necessary.

[108]The protected disclosures have been the primary focus of Dr Gosalakkal’s claim and what drove it. The alleged protected disclosures required the respondent and the Tribunal to engage in greater detail with what happened (e.g. what was actually disclosed, whether it fell within the legal definition, whether there was a consequential detriment and whether it was the sole or principal reason for dismissal) that otherwise might be the case. In my view it widened significantly the factual matrix into which the Tribunal had to enquire in order to determine the various questions that need to be answered.

[109]It required therefore the Tribunal to embark upon a greater and in-depth study of the evidence to determine what the facts were. Notably the focus would no longer be on the decision-maker’s motivation but also on Dr Gosalakkal’s motivation because the question of whether any protected disclosures were made in good faith or at all now fell for consideration. It resulted in a significant increase in the factual issues that need to be addressed in the witness evidence and in the matters which then had to be pursued before the Tribunal.

[110]The protected disclosure allegations probably doubled the length of the trial in any case it significantly increased it.

[111]It is a very difficult exercise to split these things out into any detail but it seems to me on a broad-brush approach, a 50% reduction represents an appropriate and fair split of the amount between the costs which are attributable to unreasonable conduct and the costs which are not attributable to unreasonable conduct. Therefore, that is the order that this Tribunal will make.

Conclusion

[112]Halving the costs figure and then making an allowance for the £500 deposit that Dr Gosalakkal paid as a condition of continuing his claim, the amount of costs that Dr Gosalakkal owes to the respondent is £47,088.04. Costs of the hearing

[113]The respondent claims the costs of the hearing in the sum of £5,531.50. I have considered the costs schedule that the respondent has filed. The assessment is to be done summarily and is a broad-brush approach.

[114]The respondent concedes that the refresher for Counsel for tomorrow must be taken out. That is reflected in the figure claimed.

[115]I am assessing them on the standard basis. Doubt must be resolved in Dr Gosalakkal’s favour. I have applied my mind to the factors in CPR rule 44.4 and consider that the factors that stand out are the importance to the parties and the value of the costs. Observations I have made about the rates Page 17 of 18 claimed apply equally here. I do not consider Mr McGee’s brief fee is excessive for the amounts claimed and when considering suggested rates in various parts of the High Court as set out in the SCCO guideline rates for 2010. There is nothing about the time spent that causes me concern. I am satisfied £5,531.50 is reasonably incurred and reasonable in amount and overall proportionate to the issues I had to determine today. RECONSIDERATION JUDGMENT

Conclusion

[1]The claimant’s application of 19 May 2020 for a reconsideration of the judgment dated 4 March 2020 (and sent to the parties on 23 March 2020) is dismissed because it is out of time.

[2]On 4 March 2020 I heard and finally decided an application for costs that the respondent had made against the claimant in respect of his claim. My task was to decide the amount. The Tribunal had already ordered that he should in principle pay something.

[3]I have given the background to the case in the written reasons to my judgment. Nothing in the reconsideration application suggests that what I said there was incorrect. This is a short summary to provide context to this reconsideration.

[4]There was final hearing in 2014. The claimant lost. I understand appeals against that decision were dismissed. I also understand that there have been recent applications for reconsideration. I was not part of the Tribunal panel that heard the final hearing and have no involvement in those reconsiderations. I have taken no account of them.

[5]The Employment Tribunal (Employment Judge Heap) had decided on 13 May 2015 that he should pay some of the costs. Simler J dismissed an appeal against that order.

[6]The Tribunal at a hearing on 11 April 2017 (Employment Judge Heap) had assessed how much he should pay.

[7]The claimant appealed against that decision to the Employment Appeal Tribunal (EAT). It was heard by a panel consisting of His Honour Judge Page 1 of 5 Richardson, sitting with 2 lay members. In short on 4 July 2019, the EAT remitted back to the Employment Tribunal the question of how much the claimant should pay. The decision that he should in principle pay something was never remitted. I could not alter that decision. The remitted hearing was listed before me.

[9]The claimant represented himself. Mr A McGee, Counsel, represented the respondent.

[10]I made the following order: “After considering the representations of both parties, the Tribunal orders that the claimant must pay to the respondent the following sums: “£47,088.04 as the assessed costs of the case, and “£5,531.50 as the summarily assessed costs of this hearing.

[11]I gave the reasons for doing so at the time but provided written reasons because the parties requested them at the hearing. The Tribunal sent the judgment with the written reasons to the parties on the 23 March 2020.

[12]The parties informed me at the hearing that there was an application in the County Court relating to a charging order that the respondent had over a property owned by the claimant. They told me that the County Court’s proceedings had been stayed pending the hearing on 4 March 2020. I have not seen the papers. I of course am not involved in any County Court proceedings and do not have any jurisdiction in respect of them. I know nothing of the state or outcome of any proceedings in the County Court beyond what the parties told me at the hearing on 4 March 2020.

[13]In considering the application for reconsideration I have considered: 13.1. The Tribunal’s file, 13.2. In particular 13.2.1. my order and written reasons arising from the hearing of 4 March 2020, and 13.2.2. the EAT’s judgment which resulted in the case being remitted back to the Employment Tribunal, and 13.3. The claimant’s email of 19 May 2020 (i.e. the application). Is it an application for a reconsideration?

[14]I note that the application is an email and is sent to a number of people, such as the legal representatives for the respondent, the EAT’s associates, the County Court at Leicester (presumably that is where the County Court’s hearing and case management took place, but I do not know that and have seen nothing to confirm one way or the other). I note that the email specifically references Regional Employment Judge Swann.

[15]The learned Regional Employment Judge has referred it to me. Under Tribunal rule 72(3) if it is a request for reconsideration, it had to be referred to me because I made the original Employment Tribunal decision referred to in the email. Page 2 of 5

[16]Because it says “I request you to reconsider…” I am satisfied that it is appropriate to treat this as an application for reconsideration. Whether the application is out of time and if so whether time should be extended?

[17]Tribunal rule 71 says that “…[A]n application for reconsideration… shall be presented in writing… within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later)…”

[18]Tribunal rule 5 allows the Tribunal either on its own initiative or on application to extend time even after expiry of that time.

[19]I have read the application carefully. However, it does not explain or provide any information that might indicate why the application was not made within 14 days of the Tribunal sending the judgment and written reasons to the parties. For example, there is no suggestion that there were delays in receipt, illness or any other incapacity or difficulty that prevented the claimant from making his application.

[20]I note the application does not explicitly request me to extend time but I can do anyway. However, in order for me to do I believe there must be some evidence of some circumstances that would justify me exercising my discretion. There is none.

[21]Based on what I have available to me, I conclude that I did extend time I would not be furthering the overriding objective in Tribunal rule 2 because to do so 21.1. would be disproportionate to the importance and complexity of the issues, 21.2. would increase delay in treating this case as resolved given the Tribunal has already considered the issues and that the Claimant had a right to appeal to the EAT, and 21.3. would put the respondent to increased expense dealing with the application.

[22]That is sufficient to dispose of the application. But I have considered the substance in any case. Whether there is any reasonable prospect of revocation of my original decision?

[23]Tribunal rule 72 requires me to dismiss an application for a reconsideration if I consider there is no reasonable prospect of the decision resulting from the hearing on 4 March 2020 being varied or revoked.

[24]In my judgment, there is no there is no reasonable prospect of the decision resulting from the hearing on 4 March 2020 being varied or revoked.

[25]I have considered the application carefully. It seems to me that there is in it nothing that appears to challenge the judgment I made or my reasons for it. In fact, it appears the challenge is to the decision of the County Court. I have no jurisdiction in relation to those proceedings. If the claimant wishes to challenge the County Court’s decision he must he must challenge it in a Page 3 of 5 way permitted by that Court’s procedural rules. As he says in paragraph 3 of his application, he appears to acknowledge that an appeal against that decision is the proper route. Whatever, he cannot use the Employment Tribunal’s process simply as an alternative to following the County Court’s procedural rules. I now consider the numbered paragraphs.

[27]I note in paragraph 1 of the application about the EAT’s decision being “diluted and reversed” and a reference to their counsel Mr Appleyard managing to “get the judgment reinstated at £81,000” adding various interest and costs. I note in paragraph 2 a reference to “he” (whom I read as a reference to Mr Appleyard) getting the order of Employment Judge Heap reinstated.

[28]As to these paragraphs, I infer these relate to proceedings before the County Court, though whether they date after or before the hearing of 4 March 2020 I do not know. I have come to that conclusion because of what the claimant says and that there is nothing on the Tribunal file that matches the description he has given of a judgment for £81,000 adding various interest and costs. Also, I have noted that Mr Appleyard never appeared as an advocate before.

[29]I cannot comment on the decisions of the County Court. If the claimant has a challenge against the decision of the County Court, he must challenge it in a way permitted by that Court’s procedural rules.

[30]In paragraph 3 he asks if Judge Richardson and Judge Adkinson could be clear if they are allowing the costs and interests prior to March 4 2019.

[31]I infer that by Judge Richardson, the claimant means His Honour Judge Richardson of the EAT. That is not a matter I can address.

[32]As for my judgment, I have set out my judgment at paragraph 10 above, which is a direct quote from the original judgment. I believe it is clear as to what I ordered. I accept that I made no reference to interest either in the judgment or reasons. Neither party raised the question of interest.

[33]However, I am aware that County Courts Act 1984 section 74 and County Court (Interest on Judgment Debts) Order 1991 provide for interest on judgments in the County Court. I am also aware that Employment Tribunals Act 1996 section 15(1) provides that “Any sum payable in pursuance of a decision of an employment tribunal in England and Wales which has been registered in accordance with employment tribunal procedure regulations shall be recoverable under section 85 of the County Courts Act 1984 or otherwise as if it were payable under an order of the county court”

[34]Enforcement of orders can only be undertaken in the County Court. It is my understanding from reading the above that it is a matter therefore for the County Court to determine matters of interest and recoverability of other sums due within cases or enforcement proceedings before it. In particular, as I understand the law, it is therefore a question for the County Court to determine whether as a matter of law the respondent can seek interest on orders of this Tribunal that it is enforcing in that Court and if so, what it can Page 4 of 5 and should do about such a claim. I cannot comment on the decisions of the County Court in any regard. If the claimant has a challenge against the decision of the County Court, he must challenge it in a way permitted by that Court’s procedural rules.

[35]In paragraph 4 the claimant asks me to clarify if the respondent has a right to claim the interests and costs on a fresh assessment for previous “charges” as the county court has been led to believe. I cannot give legal advice. I have set out my general understanding of the law on interest above. I cannot comment on the decisions of the County Court. If the claimant has a challenge against the decision of the County Court, he must challenge it in a way permitted by that Court’s procedural rules.

[36]I have noted paragraphs 5 and 6 but I cannot sensibly respond to them.

[37]Therefore there is nothing that suggests that there is a reasonable prospect of the claimant persuading me to vary or set aside my original order. If the application were not too late, then the application would have to be dismissed for this reason instead.

[1]This was a hearing to determine on a preliminary consideration under Rule 72(1) of the Employment Tribunal Rules of Procedure 2013 (the “2013 Rules”) whether the original judgment of 19 December 2014 should be the subject of a reconsideration hearing or whether it should be refused if it has no reasonable prospect of success.

[2]This is the third application for a reconsideration. The first was contained in a letter dated 31 July 2018. The application was refused. It was the subject of a successful appeal at the EAT, HH Judge Richardson presiding (

UKEAT/0223/18

[3]On its return from the EAT the second reconsideration application was dealt with on 3 January 2020. By a decision sent to the parties on 7 February 2020 the application was again refused. Following an appeal it was dealt with by consent and the appeal was allowed on the terms agreed by a judgment issued on 13 December 2021 (EA-2020-0001-78-BA), HH Judge Tayler presiding. Page 1 of 7

[4]Running alongside these applications has been the question of the order as to costs which has been dealt with by different Tribunals and is no part of the reconsideration application I am asked to decide.

[5]This hearing of this application has been somewhat protracted. It is unusual to have oral evidence at preliminary considerations, or for them to last as long as this, but this is an unusual case. As there was a dispute on the evidence as to when Dr Gosalakkal became aware of the new evidence he relies on to justify a reconsideration it was necessary to have oral evidence from him. Dr Gosalakkal lives in the United States and thus this hearing took place via CVP. It has spawned two large bundle of documents and detailed written and oral submissions.

[6]The essence of the Claimant’s application is that new evidence came to light in April 2018 which would have a significant, if not critical, effect on the original decision. This ‘new evidence’ is said to be a Serious Untoward Incident Report (“SUI”) which the Claimant says was placed in the public domain in or around April 2018. The Respondent says the Report was completed in 2012 and that it was in the public forum before then but there is no direct evidence of when it was available to the public. The SUI report deals with the state of affairs in the Paediatric Department of the Respondent Trust following the tragic death of Jack Adcock and the care provided by Dr Hadiza Gawa-Bawa who was subsequently convicted of manslaughter with the conviction being overturned on appeal.

[7]In terms of the relevant chronology of events for present purposes I take the following from Mr Powell’s submissions which Dr Gosalakkal has not contested.

[8]On 25 January 2018 Dr Gawa-Bawa was struck off by the GMC. There was widespread publicity surrounding the case. The Claimant says he became aware of the SUI Report on 18 April 2018.

[9]On 12 May 2018 the Claimant emailed the EAT to appeal against the liability decision. He was informed on 7 June 2018 that the proper course was to seek a reconsideration.

[10]On 20 July 2018 the Claimant submitted his reconsideration application which was refused on 7 February 2020 and was the subject of (the second) successful EAT appeal.

[11]Dr Gosalakkal’s evidence as to how he came to know of the circumstances of the SUI report are to some extent set out in his statement. Although he was given the opportunity to tell the Tribunal of the circumstances as to how he came to learn of it he has largely used the opportunity to deal with a number of matters which are not relevant to the issues to be determined now. The only relevant passages of his witness statement are at paragraphs 102 – 104 and as follows: “102. 2018 I was checking on something at the UHL website and for the first time I came across the first statement by the UHL trust released on April 18 2018 on their response to the Hadiza Bawa Gerba (sic) case and officially accepted for the first time as far as I know that their investigation had uncovered a number of defects in the children’s department and stated no single person could be blamed for Jack Adcock's death.103. Here something must be clarified .…the role of the UHL trust and its witnesses became clear only after the public statement of the UHL trust on April 18 2018. Till I got the report Mr Powell himself had rejected newspaper report as “not new evidence”…..Technically the first time I got the full report with names on was in June 2022. The first time the trust officially sends the redacted report was before the second consideration. The question then was when the first time Page 2 of 7 was that I got the evidence which would satisfy the first requirement of Ladd v Marshall which is the SI report. This was in April 2018.

104. There has been a lot of speculation that the claimant should have known about the HBG case before, but the claimant neither paid attention or sort out any one of the various personalities involved or discussed this with anyone in the trust.”

[12]I should add here that I find it unconvincing that the Claimant did not keep up with what was happening at his former employer or his former colleagues. In August 2015 BBC News reported the conviction of Dr Ferrie who had earlier investigated some of the matters against the Claimant. Dr Gosalakkal was well aware of that story as he took a screenshot of the news report for his EAT appeal. The story was not widely reported. However the whole saga involving Dr Gawa-Bawa was very widely reported from the very beginning. It is likely to have attracted the Claimant’s interest as worked in the same Department as Dr GawaBawa.

[13]There are also Facebook entries which show that the Claimant was keeping up with activities at the Trust. I accept that most of these are largely historical and there are no relevant entries around April 2018 but of course it depends on what is disclosed. He was in my judgment keeping up with news of the Respondent. He was evidently doing so in April 2018 to discover the SUI Report so it is difficult to believe he was not doing so earlier.

THE ISSUES

[14]The issues for this hearing are as follows:14.1 When did Dr Gosalakkal become aware of the SUI report?

14.2 Did he make his reconsideration application in time and if not is it appropriate to extend time?

14.3 Does the application satisfy the criteria in Ladd v Marshall

(1954) 3 All ER 745

, so that the reconsideration application has reasonable prospects of success?

THE LAW

[15]There is no dispute as to the law in this case. The relevant rules are Rules 70 – 72 (reconsiderations) and Rule 5 (extensions of time).

[16]Rule 70 states: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”

[17]Rule 71 “Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.” Page 3 of 7

[18]Rule 72 so far as is material states: “(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.”

[19]Rule 5 deals with extension of time and states: “The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired.”

[20]The relevant test to be applied is set out in Ladd v Marshall (CA) where Lord Justice Denning MR said this: “The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled:- First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: Second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: Thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” CONCLUSIONS When did Dr Gosalakkal become aware of the SUI Report?

CONCLUSIONS

[21]I can find no direct evidence of the Claimant discovering the existence of the SUI Report in April 2018 other than his oral evidence on which I have expressed reservations. It does seem somewhat odd that one fine sunny day in April 2018 the Claimant just happened to be looking at something on the UHL website and became aware of the existence of the Report. Had Dr Gosalakkal indicated some event which stirred his memory to look on the site on that day or around that time it may have sounded more convincing. There is simply no context to his ‘discovery’ whatsoever.

[22]It seems to me the more likely explanation is that having spent the best part the previous year in arguing against the various costs judgments that arose from the liability decision (including the refusal by the Court of Appeal to entertain his appeal on the costs judgments in February 2017) and then spending time in April on the assessment itself that this ‘new evidence’ was the only roll of the dice left to the Claimant to challenge the costs order. I understand that post June 2017 there were efforts to enforce the costs order against him.

[23]I cannot therefore make any determination on when Dr Gosalakkal became aware of the SUI Report with any degree of certainty or confidence. I do not find his evidence reliable and there is no other evidence available to enable me to make a determination. Page 4 of 7 Is it appropriate to extend time?

[24]It appears to be agreed, and if not I am satisfied that it is the case, that if the Claimant only discovered the SUI Report on 18 April 2018 then his time for applying for a reconsideration under Rule 71 expired on 2 May 2018. His reconsideration application of 20 July 2018 is therefore outside the time limit set by Rule 71.

[25]Before I deal with the extension issue I must make it clear that I do not understand the second appeal, which was effectively disposed of by consent, to have settled the extension of time issue. That is to say it remains an issue to be determined although the parties did agree that my decision on refusing an extension of time for the reasons I gave previously cannot stand.

[26]Having regard to the broad discretion contained in Rule 5 and notwithstanding the absence of a finding on exactly when Dr Gosalakkal came to know of the SUI Report I consider it to be in the interests of justice to extend time to 20 July 2018. There is some delay even on the Claimant’s own position after discovering the SUI Report and then making the formal application but the delay is relatively short, it was due to his lack of knowledge of legal procedure which as a litigant in person is understandable and there is little or no prejudice to the Respondent. I therefore extend time to 20 July 2018 for this application to proceed. Does the application satisfy the Ladd v Marshall criteria so that the reconsideration application has reasonable prospects of success?

[27]It is accepted that the SUI Report was signed by Dr Rabey and Nurse Killer both of whom gave evidence at the tribunal hearing. However there is no direct connection between the Claimant’s alleged protected disclosures and the problems in the Children’s Ward of the Respondent Trust. Despite extensive opportunities the Claimant has failed to establish any evidence of a link or connection. In fact the Claimant had identified Nurse Killer as an ‘irrelevant witness’ earlier in the proceedings. Dr Gosalakkal fails to establish how her evidence is now a reason why the original decision should be set aside based on anything in the SUI Report. There is equally no such connection established with Dr Rabey.

[28]The Claimant’s case on detriment for protected disclosures was dismissed because it was brought out of time. It is difficult to see what difference knowledge of the SUI Report, or any other report for that matter, would have made in relation to complaints that were dismissed for want of jurisdiction. Dr Gosalakkal’s opinions have not changed on reading the report. He held the same views even before the Report.

[29]The Claimant’s argument in relation to the unfair dismissal part of the claim is that the Respondent was motivated to dismiss him because he had made complaints in 2009/2010 which were similar to the failures identified in the SUI Report. This is effectively an argument that the decision to dismiss was made in bad faith.

[30]A key feature of the decision to dismiss the Claimant was that it was his conduct that had led to the breakdown in relationships. This had nothing to do with the SUI Report. The origin of the Claimant’s disciplinary proceedings was Dr Gosalakkal’s complaints and reports about his colleagues that kicked off the Page 5 of 7 whole process. Far from the Trust looking to keep him quiet it was the Claimant who was initiating complaints to silence his critics.

[31]The Claimant alleges that the Respondent’s witnesses lied under oath and that this is supported by the SUI Report. In his reconsideration application he says: “…a judgment obtained under fraud or deception can be overturned. If given a chance the Claimant can show at the least the EJ Ahammed judgment was obtained by the Trust witness by lying.”

[32]The suggestion that witnesses of the Respondent is in my view unsustainable. Even if the allegation of lying was made at the time – and there is nothing that the Claimant has produced at this hearing to suggest that it was - there is no new (or old) evidence of any witness lying under oath. The Claimant has failed to provide any reference in the SUI Report to demonstrate that any of the witnesses had lied. Moreover, the Claimant has not said what the witnesses are supposed to have lied about, when it is they lied or what the evidence is in support of his contention that they lied. The allegation of lying is merely his unsupported opinion.

[33]In summary I do not consider that there is any basis to permit this application for a reconsideration to go beyond the preliminary consideration stage. There is nothing to suggest that matters would have been decided differently if the SUI Report had been available earlier. I accept Mr Powell’s submission that the Claimant has not identified how the SUI report might lead the Tribunal to conclude that an employee making unsubstantiated and retaliatory complaints against his colleagues would not amount to gross misconduct. I also accept his submission that the Claimant has failed to identify how the Respondent’s witnesses were lying and this this ‘new evidence’ has no prospect of altering any part of the liability judgment. I reject the Claimant’s argument that the decision to dismiss him was made in bad faith and/or that the SUI Report has any bearing on this. The SUI Report would not have had an important influence on the outcome of the case. This application does not therefore meet the Ladd v Marshall test.

[34]For those reasons the application for a reconsideration is refused.