Ms E ChurchClaimantCabinet OfficeRespondentDate 14 April 2024
JUDGMENT
[1]No order for costs is made on the Respondent’s written application for costs dated 24 August 2023
REASONS
[1]This case was listed for a five day final hearing between 18 and 23 July 2023. Approximately 20 minutes before the hearing was due to commence the claimant contacted the employment tribunal by email advising that she wished to withdraw her claim, no reasons were provided for her decision.[2]The Respondent duly submitted a costs application on 2 4 August 202 3 on the basis that the C laimant acted unreasonably in withdrawing her claim at the Case Number: 2203207/2022 precise moment the parties were due to log precise moment the parties were due to logoon to the remote hearing. The n to the remote hearing. The Respondent assertsRespondent asserts that costs shthat costs should be ordered against ould be ordered against the Claimantthe Claimant under under rule 76(1)(a) of the ET Rules onrule 76(1)(a) of the ET Rules on grounds of grounds of the the CClaimantlaimant’s unreasonable ’s unreasonable conduct of the proceedings. conduct of the proceedings.[3]The Claimant The Claimant provided hprovided herer response to the Respondent’s application response to the Respondent’s application on on 27 27 November 2023. The Claimant states thNovember 2023. The Claimant states that herat her intention was to obtain free legal intention was to obtain free legal counsel representation for the counsel representation for the final final hearinghearing, , however the advocacy service however the advocacy service replied late in the processreplied late in the process advisingadvising that they could not represent that they could not represent herher at the final at the final hearinghearing. The Claimant states that she proceeded in good faith throughout the . The Claimant states that she proceeded in good faith throughout the process, she attended the preliminary hearing and complied with every process, she attended the preliminary hearing and complied with every deadline, however, deadline, however, ultimately,ultimately, she she could not face the stress of representing could not face the stress of representing herherself at the Final hearingself at the Final hearing against a against a represented partyrepresented party.. 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 a party (or that party's representative) has acted vexatiously, abusively, (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) have been proceedings (or part) or the way that the proceedings (or part) have been conducted; orconducted; or(b) (b) any claim or response had no reany claim or response had no reasonable prospect of success;asonable 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 begins.begins. 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. 3. 3. Rule 84 Rule 84 Employment Tribunal Rules of Procedure 2013Employment Tribunal Rules of Procedure 2013 providesprovides:: Case Number: 2203207/2022 84. In deciding whether to make a costs, preparation time, or wasted 84. In deciding whether to make a costs, preparation time, or wasted costs 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.
Relevant Law
[4]Costs orders are the exception rather than the rule in employment tribunalCosts orders are the exception 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).[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 tbears its ordinary meaning and should not be taken to be equivalent of o 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 Court of Appeal in Guidance has been given by the Court 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 condunreasonable conduct: uct: “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 and to ask whether there has been 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, unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to in doing so, to iidentidentify the conduct, what was unreasonable about it and what fy 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 (London Branch) (No 1) [2004] ICR 1398).1398).[8]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.. Case Number: 2203207/2022[9]In general, costs awards are fact specific.In general, costs awards are fact specific. The discretion should be exercised in 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.[10]The Claimant hasThe Claimant has nownow set out set out herher reasons as to why reasons as to why she withdrew her claim at she withdrew her claim at the last momentthe last moment.. It is unfortunate that she did not provide these reasons at the It is unfortunate that she did not provide these reasons at the time that she withdrew her claim as this may potentially have had an impact on time that she withdrew her claim as this may potentially have had an impact on the Respondent’s decision to pursue costs. That said, I accept the Respondent’s decision to pursue costs. That said, I accept the Claimantthe Claimant had every intention to attend and rhad every intention to attend and represent herself at the final hearing, epresent herself at the final hearing, however, herhowever, her feelings of stress andfeelings of stress and anxietyanxiety ultimately prevented her from doing ultimately prevented her from doing so. so. Even in the latter stages, tEven in the latter stages, the Claimant continued to pursue free legal he Claimant continued to pursue free legal representation to allow her to continue her claim but she wasrepresentation to allow her to continue her claim but she was unsuccessful in unsuccessful in securing this. Whatever the merits of her claim may have been, securing this. Whatever the merits of her claim may have been, I accept that I accept that thethe decisiondecision to withdraw was not based on to withdraw was not based on any concerns around merits but any concerns around merits but rather the reasons the Claimant has set out.rather the reasons the Claimant has set out.[11]Many cases do settle Many cases do settle oror are withdrawn atare withdrawn at the last the last moment;moment; however, this alone however, this alone cannot be a justification on its own to award costs against a party. I considered cannot be a justification on its own to award costs against a party. I considered the conduct of the claimant as a whole throughout the proceedings and accept the conduct of the claimant as a whole throughout the proceedings and accept that she acted in good faith.that she acted in good faith. Whilst I conclude the ClaimaWhilst I conclude the Claimant’s last minute nt’s last minute withdrawal claim was unfortunate, I do not see this as a deliberate action on her withdrawal claim was unfortunate, I do not see this as a deliberate action on her partpart[12]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 threshold of unreasonable reached the threshold 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.[13]In the circumstances I make no order for costs against the In the circumstances I make no order for costs against the CClaimant.laimant.