Mr K KhanClaimantLouis Vuitton UK LimitedRespondentDate 22 March 2024
JUDGMENT
[1]No order for costs is made on the Respondent’s written application for costs dated 2 February 2024.
REASONS
[1]On 29 January 2024 this matter was listed before me to determine the Claimant’s application to amend. After carefully weighing up the balance of injustice and hardship , I refused the application. Ultimately, I reached the conclusion that the Respondent would be significantly more prejudiced if the amendment was allowed. Case Number: 2201644/2023[2]Following my decision, the RespondentFollowing my decision, the Respondent indicated that it wished to make an indicated that it wished to make an application for costs. Due to application for costs. Due to the the limited time remaining limited time remaining for me to hear this for me to hear this applicatioapplication an as well ass well as to allow the Claimant a proper opportunity to respond, I to allow the Claimant a proper opportunity to respond, I adadvised the Respondent vised the Respondent to submit their application in writing.to submit their application in writing.[3]The Respondent duly submitted a costs application on 2 FebruaryThe Respondent duly submitted a costs application on 2 February 20242024 on the on the basisbasis that that the the CClaimantlaimant acted unreasonably in acted unreasonably in bringing his application to bringing his application to amend, and that costs should be ordered against amend, and that costs should be ordered against the Claimantthe Claimant under rule under rule 76(1)(a) of the ET Rules on76(1)(a) of the ET Rules on grounds of grounds of the the CClaimantlaimant’s unreasonable conduct of ’s unreasonable conduct of this part of the proceedings. this part of the proceedings.[4]The Claimant The Claimant provided his response to the Respondent’s application provided his response to the Respondent’s application on on 13 13 February 2024, detailing the reasonsFebruary 2024, detailing the reasons for making the amendment applications for making the amendment applications and setting out further detail in respect of hiand setting out further detail in respect of his personal circumstancess personal circumstances, which he , which he submitted contributed to the delay. submitted contributed to the delay. Relevant Law Relevant Law 1. 1. Rule 76Rule 76 Employment Tribunal Rules of Procedure 2013Employment Tribunal Rules of Procedure 2013 provides in relevant provides in relevant parts: parts: 76 76 (1)(1) A Tribunal may make a costs order or a preparation time order, and shall A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers thatconsider whether to do so, where it considers that(a) (a) a party (or that party's representative) has acted vexatiously, abusively, a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) or the way that the proceedings (or part) have been proceedings (or part) have been conducted; orconducted; or(b) (b) any claim or response had no reasonable prospect of success;any claim or response had no reasonable prospect of success; oror(c) (c) a hearing has been postponed or adjourned on the application of a party a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing made less than 7 days before the date on which the relevant hearing begibegins.ns. 2. 2. Under rUnder rule ule 76(1) therefore, the Tribunal 76(1) therefore, the Tribunal shallshall considerconsider making an order for making an order for costs costs where it is of the opinion that any of the grounds for making a costs order where it is of the opinion that any of the grounds for making a costs order has been made out. has been made out. Case Number: 2201644/2023 3. 3. Rule 84 Rule 84 Employment Tribunal Rules of Procedure 2013Employment Tribunal Rules of Procedure 2013 providesprovides:: 84. In 84. In deciding whether to make a costs, preparation time, or wasted costs deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to party’s (or, where a wasted costs order is made, the representative’s) ability to pay.pay. 4. 4. Costs orders are the excCosts orders are the exception rather than the rule in employment tribunaleption rather than the rule in employment tribunal proceedings, but that does not mean that the facts of the case must be proceedings, but that does not mean that the facts of the case must be exceptional exceptional (Power v Panasonic (UK) Ltd UKEAT/0439/04).(Power v Panasonic (UK) Ltd UKEAT/0439/04).
Relevant Law
[5]In terms of abusive, disruptive or unreasonable conduct, “unreasonableness” In terms of abusive, disruptive or unreasonable conduct, “unreasonableness” bears its ordinary meaning and should not be taken to be equivalent of bears its ordinary meaning and should not be taken to be equivalent of “vexatious” “vexatious” (National Oilwell Varco UK Ltd v Van de Ruit UKEAT/0006/14). (National Oilwell Varco UK Ltd v Van de Ruit UKEAT/0006/14).[6]Guidance has been given by the CouGuidance has been given by the Court of Appeal in rt of Appeal in Barnsley Metropolitan Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 Borough Council v Yerrakalva [2012] IRLR 78 on the approach to assessing on the approach to assessing unreasonable conduct: unreasonable conduct: “The vital point in exercising the discretion to order costs is to look at the whole “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case picture of what happened in the case and to ask whether there has been and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to in doing so, to iidentify the conduct, what was unreasonable about it and what dentify the conduct, what was unreasonable about it and what effects it had”. effects it had”.[7]The tribunal does not need to identify a direct causal link between the The tribunal does not need to identify a direct causal link between the unreasonable conduct and the costs claimed unreasonable conduct and the costs claimed (MacPherson v BNP Paribas (MacPherson v BNP Paribas (London Branch) (No 1) [2004] ICR 1398).(London Branch) (No 1) [2004] ICR 1398). Application & Application & SubmissionsSubmissions[8]In summary, tIn summary, the Respondent submits its costs he Respondent submits its costs applicationapplication, for the following , for the following reasons:reasons: Case Number: 2201644/2023a. a. TThe Claimant’s amendment application sought to add in a hopeless claim he Claimant’s amendment application sought to add in a hopeless claim and he was misconceived in making the application.and he was misconceived in making the application.b. b. TThe Claimants ’s application to amend was also selfhe Claimants ’s application to amend was also self--evidently meritless as evidently meritless as a result of a result of the balance of injustice and hardship which the Tribunal was the balance of injustice and hardship which the Tribunal was required to weigh up in deciding whether or not to allow the claim.required to weigh up in deciding whether or not to allow the claim.c. c. The amendment was a substantive one rather than a mere relabelling as The amendment was a substantive one rather than a mere relabelling as the Claimant claimed. The Claimant’s assertion in the apthe Claimant claimed. The Claimant’s assertion in the application that it plication that it was a mere relabelling was made without thought and without was a mere relabelling was made without thought and without consideration of the law.consideration of the law. It was unreasonable for It was unreasonable for the Claimanthe Claimantt to make this to make this legally wrong assertion.legally wrong assertion.d. d. The amendment was considerably outside the statutory time limits, and The amendment was considerably outside the statutory time limits, and the Claimant did not seek to produce any evidence as to why it was just the Claimant did not seek to produce any evidence as to why it was just and equitable to extend time, nor to raise any argumentand equitable to extend time, nor to raise any argument, , save the save the assertion that there was a delay whilst trying tassertion that there was a delay whilst trying to get funds together for the o get funds together for the amendment, and that his baby was due in the delayed period.amendment, and that his baby was due in the delayed period.e. e. There was an inexplicable delay of more than 6 months between There was an inexplicable delay of more than 6 months between CClaimantlaimant’s counsel saying at the’s counsel saying at the Preliminary hearing on 5 June 2023Preliminary hearing on 5 June 2023 that that an amendment might be requiredan amendment might be required and the application being made.and the application being made.f. f. The The CClaimantlaimant’s application itself was carelessly drafted in only the briefest ’s application itself was carelessly drafted in only the briefest of terms. It did not set out in a pleaded form the wording of the intended of terms. It did not set out in a pleaded form the wording of the intended amendment, but merely the nature of the amendment.amendment, but merely the nature of the amendment.[9]The Respondent The Respondent susubmitted it bmitted it was takingwas taking a restrained approach by applying a restrained approach by applying solely for the costs of counselsolely for the costs of counsel for attending the preliminary hearing for attending the preliminary hearing and and for the for the drafting of thdrafting of thee written application.written application.[10]In response In response the Claimantthe Claimant provided further details as to why he had pursued an provided further details as to why he had pursued an amamendment application, which included endment application, which included him becoming awarehim becoming aware (presumably in (presumably in disclosure)disclosure) of of an email from May 2020an email from May 2020,, which referenced dismissalwhich referenced dismissal and related and related Case Number: 2201644/2023 to his absence history to his absence history rather than the matter for which he was ultimately rather than the matter for which he was ultimately dismisseddismissed in October 2022.in October 2022.[11]The Claimant The Claimant advised that he was without legal representation until June 2023advised that he was without legal representation until June 2023, , he obtained legal representation from that point onwards and was represented he obtained legal representation from that point onwards and was represented at the Preliminary Hearing at the Preliminary Hearing before me. He submitted thatbefore me. He submitted that iit was t was notnot until the until the PPreliminary hearingreliminary hearing in June 2023 thain June 2023 thatt the amendment was discussed with the amendment was discussed with counsel. It was following thcounsel. It was following this discussion and on the counsel’s recommendation is discussion and on the counsel’s recommendation that that hehe wawas adviseds advised there was merit to the claim and the amendment there was merit to the claim and the amendment application could be made in order to application could be made in order to better better plead plead his casehis case..[12]In terms of the delay in presenting his application to amend since June In terms of the delay in presenting his application to amend since June 2023, 2023, when it was first raised, the Claimant submitted thatwhen it was first raised, the Claimant submitted that as a result of as a result of his his deteriorating metal health,deteriorating metal health, between June and 2023 he has been taking more between June and 2023 he has been taking more intense therapy sessions intense therapy sessions which can have a lasting effect on his ability to carry which can have a lasting effect on his ability to carry out even menial day toout even menial day to day tasksday tasks. . Further, aFurther, as a results a result of these issuesof these issues he has he has had to take time off work and is presently off sick.had to take time off work and is presently off sick. In In addition,addition, he describes his he describes his wife as having had a very difficult pregnancy,wife as having had a very difficult pregnancy, throughout which he supportthroughout which he supporteded her as well as looking after her as well as looking after his eldeshis eldest childt child. His father has also been . His father has also been suffering suffering with illwith ill--healthhealth..[13]I reminded myself that I reminded myself that Rule 76(1)(a)Rule 76(1)(a) states that the Tribunalstates that the Tribunal ‘‘may makemay make’’ and and ‘‘shall considershall consider’’ a costs order in certain circumstancesa costs order in certain circumstances. Ultimately, t. Ultimately, the Tribunal he Tribunal are left with a ware left with a wide discreide discretiontion..[14]In general, costs awards are fact specific. The discretion should be exercised in In general, costs awards are fact specific. The discretion should be exercised in accordance with the overriding objective to achieve the outcome which is fair accordance with the overriding objective to achieve the outcome which is fair and just in the circumstances. and just in the circumstances.[15]The Claimant has set out detailed reasons as tThe Claimant has set out detailed reasons as to why he made the amendment o why he made the amendment applicationapplication.. IIrrespective of what the Respondent thrrespective of what the Respondent thoughtought about the merits of the about the merits of the Claimants Claimants propproposed osed amendmentamendment, , I do not acceptI do not accept that the that the application had been application had been made made unreasonablyunreasonably,, without without proper proper thoughtthought. Further, the Claimant had sought . Further, the Claimant had sought Case Number: 2201644/2023 legal advice and his advisors legal advice and his advisors had seen fit to put forward the amendment had seen fit to put forward the amendment application and the Claimant was legally represented at the hearing before me. application and the Claimant was legally represented at the hearing before me.[16]I do not make any comment on the merits I do not make any comment on the merits of the claim that the Claiof the claim that the Claimant had mant had sought to addsought to add andand for the sake of clarity,for the sake of clarity, I I did not weigh this in the balance did not weigh this in the balance against the Claimant against the Claimant when Iwhen I refused the amendment application. refused the amendment application. The reason I The reason I decided not to do so was that decided not to do so was that I did I did not havenot have thethe fullfull evidence before me evidence before me that a that a Tribunal woTribunal would have at a full hearing uld have at a full hearing and and I was I was conscious of theconscious of the need to avoid need to avoid becoming drawn into conducting a mini trial.becoming drawn into conducting a mini trial.[17]WWhilst I accept there was ahilst I accept there was a clear delay in presenting the applicationclear delay in presenting the application, I do not , I do not see this as any deliberate actionsee this as any deliberate action by the Claimantby the Claimant. Ultimately,. Ultimately, there were there were a a multitude of multitude of personal circumstances personal circumstances in existence which contributed to the in existence which contributed to the delaydelay..[18]IIn light of my conclusions above, I n light of my conclusions above, I do not find that the respondent has do not find that the respondent has established that the claimant’s conduct established that the claimant’s conduct reached the threreached the threshold of unreasonable shold of unreasonable conduct which would then have allowed me to consider whether to exercise my conduct which would then have allowed me to consider whether to exercise my discretion to award discretion to award costs, and if so, in what amount.costs, and if so, in what amount.[19]In the circumstances I make no order for costs against the claimant.In the circumstances I make no order for costs against the claimant.