B Noone v The Tavistock and Portman NHS Foundation Trust: 2201210/2023
EMPLOYMENT TRIBUNALS
Case No 2201210/2023
Between
Belinda NooneClaimantThe Tavistock and Portman NHS Foundation TrustRespondent
Before
Tribunal Judge Jack, acting as an Employment JudgeDate 11 September 2025
JUDGMENT
[1]The respondent’s application for a costs order is refused.[2]The claimant’s application for a preparation time order is refused.[3]The claimant’s application for a wasted costs order is refused.
REASONS
[1]In a judgment made on 12 September 2024 and sent to the parties on 19 September 2024 the claim, having been withdrawn by the claimant, was dismissed.[2]The respondent applied for costs on 19 September 2024, on the basis of what it said was the claimant’s disruptive and/or unreasonable conduct of the proceedings between 1 July 2024 and 9 July 2024 inclusive.[3]The claimant provided a full response on 17 June 2025. As part of her response she made an application for preparation time and time wasted, which she quantified as £14,554.54 for injury to feelings and £1,400 for a government lump sum which she says that she was due and which was not paid.[4]The respondent had provided a bundle of 223 pages and a skeleton argument. The claimant also provided a written response to the respondent’s skeleton argument.[5]Both parties made detailed submissions. At the end of the hearing the claimant asked if she could apply for an order under rule 49 preventing or restricting disclosure. I therefore made Case Management Orders directing that any such application must be made by 21 August 2025, and have delayed giving this reserved judgment. However tribunal staff have checked whether any such application has been made. None has. There is therefore no reason to delay further.
The Law
[6]Rule 74(2)(a) of the Employment Tribunal Procedure Rules 2024 provides that a costs order may be made where the Tribunal considers that: a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted.[7]Rule 75(1) states: A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.[8]Rule 82 states: In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party's … ability to pay.[9]The following propositions may be derived from the case law: a) In the Tribunal costs orders are the exception rather than the rule. The Tribunal's power to order costs is more sparingly exercised and is more circumscribed by the Tribunal's rules than that of the ordinary courts: Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA. b) There are three stages in the exercise when an Employment Tribunal considers an application for a costs or time preparation order. The Tribunal must(i) consider whether one of the preconditions for making such an order in Rule 74 has been established;(ii) consider whether the Tribunal should exercise its discretion to make an award of costs: and(iii) assess the amount of any award: Abaya v Leeds Teaching Hospital NHS Trust UKEAT/0258/16 EAT. c) The preconditions in Rule 74 are the same whether a party is represented or not. However, it is appropriate that litigants in person usually should be judged less harshly in terms of their own conduct than those who are professionally represented: AQ Ltd v Holden [2012] IRLR 648, EAT. d) Unreasonable” has an ordinary, everyday, objective, meaning: Dyer v Secretary of State for Employment EAT 183/83. e) In McPherson v BNP Paribas [2004] ICR 1398 CA, at paragraph 40, Mummery LJ said this: “ … the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring [the applicant for costs] to prove that specific unreasonable conduct by the applicant caused particular costs to be incurred. … the tribunal's discretion [is not limited] to those costs that are caused by or attributable to the unreasonable conduct of the applicant.” f) In Yerrakalva v Barnsley MBC [2012] ICR 420 CA, at paragraph 41, Mummery LJ gave further guidance on the correct approach: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment Tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances”. g) Costs awards are compensatory, not punitive: Lodwick v Southwark London Borough Council [2004] ICR 884, CA. h) Under Rule 82 the tribunal may, but is not obliged to have regard to the paying party’s ability to pay in deciding the amount of any costs order. A tribunal had, however, to act judicially in deciding not to do so and if it chose not to have regard to means it should have a reason for doing so and say what the reason was. However, where the costs award may be substantial, the tribunal must proceed with caution before disregarding the paying party’s means: Doyle v North West London Hospitals NHS Trust [2012] ICR D21, EAT. i) If there is a realistic prospect that the claimant might at some point in the future be able to afford to pay a substantial amount, it is legitimate to make a costs order in that amount so that the respondent is able to make some recovery when and if that occurred: Vaughan v Lewisham LBC [2013] IRLR 713, EAT. Analysis and Conclusion[10]The respondent has applied for costs on the basis of the claimant’s disruptive and/or unreasonable conduct of the proceedings between 1 July 2024 and 9 July 2024 inclusive.[11]The claimant provided a full response on 17 June 2025. She emphasised (among other things) that she has Complex Post Traumatic Stress Disorder and other mental health issues, and that she represented herself. She emphasised matters which were the subject of the claim that she has withdrawn. She says that she had to withdraw her claim before the final hearing due to the impact on her mental health.[12]The claimant’s email of 19 June 2025 states that she does not own a house or car or have any major assets. She states that “I had every intention of pursuing my claim to the final hearing however my mental health significantly deteriorated during that period in July 2024 and prevented me from doing so.”[13]Part of the relevant context is that there was a preliminary hearing on 10 August 2023. The respondent had applied for strike out of the claimant’s complaints on the basis that they had no reasonable prospect of success, or a deposit order. That application was due to be heard at a preliminary hearing held on 10 August 2023, although it was not dealt with due to a lack of time once various other matters were dealt with. A further preliminary hearing took place on 7 December 2023. However at that hearing there was again no time to consider the application once various other matters were dealt with, and the respondent’s preference was not to list another preliminary hearing to determine their application. This is the context in which the claimant had produced a witness statement for the preliminary hearing on 10 August 2023 which set out her evidence in support of what she regarded as a strong claim.[14]A final hearing was listed from 10 July 2024 to 18 July 2024.[15]Simultaneous exchange of witness statements was directed take place by 3 pm on 1 July 2024.[16]On Monday 1 July 2024 the claimant emailed the tribunal at 9:07 am to say that she had no choice but to withdraw her claims due to ill health, unless they could be decided on the papers. I accept that the claimant was under the genuine misapprehension that it was realistic to ask for her claim to be decided on the papers. This is because the respondent had previously asked for preliminary applications to be dealt with on the papers.[17]The respondent’s solicitors sent its witness statements to the claimant at 3:30 pm on 1 July 2024, having sought and received confirmation from the claimant that she was in a position to exchange. At 4:58 pm on the same day, the claimant sent the respondent’s solicitors what she described as her witness statement in 3 parts.[18]A few minutes later at 5:04 pm the respondent’s solicitors emailed the claimant saying that the 3 parts of her witness statement were a witness statement previously provided for a preliminary hearing and her previously provided disability impact statements. The respondent asked “Can you confirm if this is correct and that you have not produced a new statement for the purposes of the final hearing?” The claimant replied at 11:10 pm that “I did write a new statement for the final hearing”. The respondent’s solicitors reasonably understood this to mean that it did not have the claimant’s witness statement for the hearing due to start on 10 July 2024.[19]Also on 1 July 2024 the claimant emailed the respondent’s solicitors with a number of documents for the hearing bundle. In particular, she emailed the respondent’s solicitors at 5:10 pm with a letter from the NHS dated 1 July 2024 (which is in the bundle, p. 187) and at 5:16 pm with a further letter related to her health dated 29 June 2024 (which is also in the bundle, p. 189).[20]On Tuesday 2 July 2024 the tribunal wrote to the claimant saying that it was not possible for her claim to be decided on the papers. The claimant was asked, in the light of that, if she still wanted to withdraw her claim. The tribunal also said that she could seek a postponement if she did not want to proceed due to ill health, although such an application would need to be supported by medical evidence.[21]On Wednesday 3 July 2024 the claimant emailed the tribunal at 2:36 pm to say that she had not made an application for a postponement or asked for her claim to be withdrawn. She referred to earlier requests by the respondent for matters to be dealt with on the papers. I accept that she was still unclear as to why liability could not be determined on the papers alone.[22]The respondent applied for strike out of the claimant’s claim on Thursday 4 July 2024. The application stated that the claimant had either not produced a witness statement for the final hearing or was deliberately withholding it.[23]The claimant emailed the Tribunal on Tuesday 9 July 2024 (i.e. the day before the final hearing was due to take place) at 4:47 pm to say that she was withdrawing her claim. Stage 1[24]I must first consider whether or not one of the preconditions in rule 74 for making an order have been established.[25]The respondent says that either the claimant did not produce a final hearing witness statement but misled the respondent by saying that she had, or that she deliberately withheld it. It submits that the claimant had no real intention of pursing her claim throughout this period, but caused significant uncertainty about her position, causing the respondent to expend time and money seeking clarification from her and applying for strike out in order to protect its position.[26]The claimant says that she was working in the week prior to the full merits hearing, but had booked time off work in order to attend. She did intend to attend the hearing, and believed that she had a strong case and an important one. Her claim included a complaint of whistleblowing, and she considered that the disclosures she had made were important. She thought that her claim could be decided on the papers and did not want to withdraw it. However her health deteriorated, and she had no choice to withdraw. She considered that her health needed to take priority.[27]The claimant argued that there was no need for her to produce a new witness statement as her earlier statement dealt with everything she needed to say in support of her claim. She said that “my evidence and my position remained the same since day one of this tribunal” and that there was enough information in her statement to support her claim and that since she had been open about her evidence earlier in the proceedings.[28]However the claimant also said that “The statement I sent included updates. It was new”, and that she had “used previous information to write a new updated witness statement”.[29]The witness statement served by the claimant on 1 July 2024 was headed “My Witness Statement (7.7.2023) for Open Preliminary Hearing: 10.80.2023)”. There is no material in it that can be regarded as an update after it was first served prior to the hearing in August 2023.[30]The claimant had not served a new witness statement but had said in her email of 2 July 2024 at 11:10 pm that “I did write a new statement for the final hearing”.[31]The claimant argued that she did not know what lawyers mean by ‘new’ in this context, but I accept Mr Allen’s submission that ‘new’ is not a technical term. A litigant in person would know whether or not she had produced a new witness statement.[32]My conclusion is that the claimant did behave unreasonably in telling the respondent that she had a new witness statement when, in fact, she was relying on the earlier witness statement.[33]However I do not accept that the claimant had no real intention of pursuing her claim throughout the period 1 July 2024 and 9 July 2024. She had booked time off to attend the hearing. On 1 July 2024 the claimant sent the respondent a number of emails relating to the bundle and her medical evidence. The claimant was under the genuine misapprehension that it was realistic to ask for her claim to be decided on the papers, believed that she had a strong case and an important one, did not want to withdraw, and did not do so until she felt that she had no alternative. She withdrew her claim late in the day. But I do not accept that she had no real intention of pursing her claim in the period 1 July 2024 and 9 July 2024. Stage 2[34]I must next consider whether to exercise the discretion to make an award of costs. I must have regard in particular to the nature, gravity and effect of the unreasonable conduct.[35]A costs order is the exception rather than the rule, and costs orders are compensatory not punitive.[36]The respondent says that the claimant misled the respondent as to whether or not she had prepared a new witness statement which the respondent did not yet have. I have accepted that the word ‘new’ is not a term of art and that the claimant’s email that she had prepared a new witness statement was misleading.[37]The result was that the respondent(i) sought to obtain the new witness statement from her and(ii) sought to protect its position once they had failed to do so, by making a strike out application. However the effect of the unreasonable conduct was not as great as would at first appear from the respondent’s application. The respondent’s statement of costs incurred from 1 July 2024 to 10 July 2024 included counsel’s fees for the hearing listed from 10 July 2024 to 18 July 2024 in the sum of £10,000. In fact, as Mr Allen clarified at the hearing today, the brief fee had already been incurred. That factor alone reduces the seriousness of the effect of her conduct very, very significantly.[38]The claimant is a litigant in person. This is not a bar to an award of costs against her, as Mr Allen rightly submitted. But it is relevant in this case. Having read the relevant correspondence between the claimant and the respondent’s solicitors in the period from 1 July 2024 to 9 July 2024, I find that points that would have been obvious to a lawyer were not obvious to her. In particular, she genuinely did not understand that it would not be possible for liability to be determined on the papers.[39]Finally, the bundle contains two letters regarding the claimant’s ill health. I accept on the basis of these letters that the claimant has a history of anxiety and PTSD, for which she received medication, and that the medical assessment was that she had experienced complex trauma reactions. Against the background of this evidence and taking into account her email of 1 July 2024 (which referred to her ill health), I accept what she told me i.e. that preparing for the final hearing adversely affected her health in the period 1 July 2024 to 9 July 2024.[40]In deciding whether to make a costs order the Tribunal may have regard to the claimant’s ability to pay. The claimant was made aware by EJ Adkin on 18 June 2025 that she could provide evidence of her ability to pay, and that it might disadvantage her if she did not provide evidence of income/salary, outgoings and any major assets such as a house or car. The claimant stated in response that she does not own a house or a car or have any major assets. I gave her the opportunity today to provide information about her income and outgoings, but she was clear that she did not wish to provide this information while the respondent’s representative was present. I am therefore not able to have regard to the claimant’s ability to pay except for the information which she has provided (and which I accept) that she does not have any major assets.[41]Weighing these various factors together, I consider that it would not be appropriate to exercise the discretion to make an award of costs against the claimant.[42]The respondent’s application is therefore refused. Claimant’s application[43]The claimant has applied for preparation time and time wasted, which she quantified as £14,554.54 for injury to feelings and £1,4000 for a government lump sum which she says that she was due and which was not paid. She supplemented the points made in her written application with oral submissions made at the hearing. The respondent relied on the arguments set out briefly in its skeleton argument.[44]This application was not made 28 days after the date on which the judgment finally determining the proceedings was sent to the parties. The judgment was sent to the parties on 19 September 2024, and this application was made nine months later on 17 June 2025. The application is therefore made too late: rules 75(1) and 80(2).[45]Even if that were not the case, however, the application would not succeed.[46]A preparation time order is an order in respect of a party’s preparation time while not represented by a legal representative: rule 73(2). The claimant has sought to argue the substantive merits of her dispute with the respondent, arguing that she has been treated badly by the respondent. Her claim is for injury to feelings, rather than preparation time. Her claim is also for £1,400 for a government lump sum which she says that she is owed, rather than for preparation time. She is in reality trying to argue points that were at issue in the claim that she withdrew. These items (even if proved) could not justify and an order in respect of preparation time.[47]A wasted costs order is an order made against a representative in respect of wasted costs incurred by the party in whose favour the order is made: rule 78(1). Here the claimant seeks compensation for injury to feelings, not costs incurred. She also seeks £1,400 for a government lump sum which she says that she was due and which was not paid. That sum was at issue in the claim that she has withdrawn. It is not a cost she has incurred as a result of the litigation. She is in reality attempting to argue points that were in issue in the claim that she has withdrawn. These items (even if proved) could not justify an order in respect of wasted costs she has incurred.[48]The claimant’s application is therefore refused.