B v Bennbridge Services LLP and Others: 2205781/2023
EMPLOYMENT TRIBUNALS
Case No 2205781/2023
Between
BClaimant(1) Bennbridge Services LLP (2) C (3) D (4) E PRELIMINARY HEARINGRespondent
Before
Employment Judge GidneyIn person for claimantMs Alice Mayhew KC for respondentDate 31 July 2023
JUDGMENT
[1]The Claimant’s interim relief application is refused.
REASONS
[1]This is an application for costs made by the respondent s , dated 29 April 2024 for a total of £16,765 incurred because of the clai mant s multip le applications to amend There was insufficient time to dea l with this application at the preliminary hearing on 14 May 2024 and it was agreed with the parties that the application would be dealt with “on the papers”.[2]I n reaching my decision, I have considered the res pondents application and the releva nt sectio ns of Ms Mayhew s (respondents counsel) written submi ssions; the claimant s response to the costs application dated 4 May 202 4 and also the informati on given to me (orally) by the claimant about her financia l situation at the hearing on 14 May 2024. Bac kground[3]The claimant was employment by R1 from 2 Mar ch 20 22 to 14 April 2023 when she was dismissed citing gross misconduct . On 20 April 2023 the claimant lo dged an ET1 in the Employment Tribunal claiming automatic ally unf air dismissal and d etr iments on ground of whistleblowing (protected disclosure s Case Number: 2205781/2023 2 of 7 made made in the public interestin the public interest whichwhich raised allraised allegations that the claimant and otegations that the claimant and otherher employees of R1employees of R1 werewere subsubjected to sexual harjected to sexual harassment)assment). .[4]The claimantThe claimant’’s applicatis application for interon for interim relim relief was refuseief was refused on 31 July 20d on 31 July 202323 by EJ by EJ GidneyGidney. . The respondents served their EThe respondents served their ET3 / Grounds of Resistance in August T3 / Grounds of Resistance in August 2023.2023. There was a case management hearing on 18 September 2023 with EJ There was a case management hearing on 18 September 2023 with EJ Singh.Singh.[5]FollFollowing thowing thatat hearing, thearing, the claimant made a lenhe claimant made a lengthygthy (1(155 pagepage) application) application to to amend in Octobeamend in October 2023 r 2023 stating,stating, “I“I want to add want to add bullbullyying, sexual discrimination ing, sexual discrimination andand sexual harasssexual harassmentment tto o the orithe origginal inal unfair dismissal clunfair dismissal claim due to aim due to whistleblowingwhistleblowing””. .[6]That application was hearThat application was heard by EJ Keogh on 7 December 20d by EJ Keogh on 7 December 2023 23 whowho (in a written (in a written decisiondecision dated 4 January 2024dated 4 January 2024 and sent to the parties on 17 January 2024)and sent to the parties on 17 January 2024) refused refused the majority of the majority of thethe applicationsapplications but allowed a claimbut allowed a claim of viof victimisation to ctimisation to proceed.proceed.[7]At parAt paragraph agraph 46 of46 of her her written reawritten reasons for this decision EJ Keogh noted that sons for this decision EJ Keogh noted that there was there was ““a gradua gradual expansial expansioonn”” of the claof the claimantimant’’s claimss claims, which made it difficult , which made it difficult to properly to properly identifyidentify the claimsthe claims she was making. she was making. EJ Keogh observed that thEJ Keogh observed that thiiss had undoubtedly cahad undoubtedly caused used prejudiceprejudice to the respondents generally and to the respondents generally and distress distress to to the named indithe named individvidual reual respondents as tspondents as they were hey were stillstill unaunable to ble to clarify exactly clarify exactly what allegations were being made against them.what allegations were being made against them.[8]The claThe claimanimant then made t then made a further a further five sfive separate applications to amend eparate applications to amend her her claims claims over the period 28 December 2023 to over the period 28 December 2023 to MaMarchrch 2022024 (with some 4 (with some overlapping subject matter). overlapping subject matter). TherThere was insuffice was insufficient tiient time to me to hear these hear these applications aapplications at a fut a further case management hearing with EJ Girther case management hearing with EJ Gidney in March dney in March 2024 and those app2024 and those applicalicationstions were heard by me at were heard by me at thethe preliminpreliminary hearing on 14 ary hearing on 14 May 2024. All the May 2024. All the claimant’sclaimant’s applicatapplications werions were refused (see Ce refused (see Case Management ase Management Order datedOrder dated 19 May 2024). 19 May 2024).[9]In In ththe Order of 21 March 2024 at paragraph 7.3 EJ Gidne Order of 21 March 2024 at paragraph 7.3 EJ Gidney noteey noted as follows: d as follows: “ “TThehe Claimant accepted that her repeated applications to amend her Claim Claimant accepted that her repeated applications to amend her Claim were causing considerable delay to the determination of her existing claims were causing considerable delay to the determination of her existing claims and were caus and were causing considerable extra costs to the Respondent. The Claimanting considerable extra costs to the Respondent. The Claimant confirmed that she would NOT be making any more applicationconfirmed that she would NOT be making any more applications to amend her s to amend her Claim Form Claim Form””. When the claimant was . When the claimant was referredreferred toto this paragraphthis paragraph atat the hearing the hearing on 14 May 2on 14 May 2024024, she said that she had been , she said that she had been pressurised by EJ Gipressurised by EJ Gidndney to ey to make make those stathose statementstements..[10]I note that in many of the claimantI note that in many of the claimant’’s applications, she alleges applications, she alleges that she is s that she is being being pressurised by the respondentspressurised by the respondents’’ rerepresentatives or presentatives or othersothers, when they do not , when they do not accept or question her versioaccept or question her version of events or hen of events or her actionsr actions. The claimant also . The claimant also states states that that thethe responderespondentntss’’ opposopposition to her ition to her applicaapplications tions viviolates olates her rights of her rights of Case Number: 2205781/2023 3 of 7 free speech free speech ((paragraphparagraph 2 of 2 of thethe clclaimantaimant’’s application to amends application to amend dated 7 dated 7 DecemDecember 2023). ber 2023).[11]The claimant musThe claimant must recognise that t recognise that hahaving chosen to brinving chosen to bring her claimsg her claims in the in the EmploymeEmployment nt TribunalTribunal, , the nature ofthe nature of thethe litigation litigation process process is that claims may is that claims may be be defended,defended, and factual matters may be disputedand factual matters may be disputed. . Any Any defence put forwarddefence put forward by thby the e respondentsrespondents, , whilstwhilst it may challenge the claimantit may challenge the claimant’’s s versionversion of eventsof events,, is not is not of of itself itself a denial of her right of free spea denial of her right of free speechech. .[12]In a sIn a similar vein, in imilar vein, in her response to the costs applicather response to the costs application the claimion the claimantant made made allallegationsegations thatthat the respondentthe respondentss’’ solicitors (Lewis Silkin) and counsel solicitors (Lewis Silkin) and counsel had had iintimidated EJ Keogh by threatening to wintimidated EJ Keogh by threatening to withdraw her thdraw her poposition as a salarsition as a salaried ied Judge. TheJudge. The allegations are denied by the respondeallegations are denied by the respondentsnts’’ representativesrepresentatives, but , but thethesese are seriare serious allegations ous allegations agaagainsinst both the t both the representativesrepresentatives and indeed and indeed against EJ Keoghagainst EJ Keogh herselfherself, as , as it is suggested it is suggested by the claimant that the Judge by the claimant that the Judge allowed allowed herself to be intimidatedherself to be intimidated in reaching her decisionin reaching her decision. . IIt does appear that t does appear that the claimant the claimant is very ready to make seris very ready to make serious accusious accusatiations of dishonesty and ons of dishonesty and miscomisconductnduct against others, when they do not agree with heragainst others, when they do not agree with her or do what she or do what she wants.wants.[13]I also note that I also note that the the claimanclaimant t is a litigais a litigant in person and has chosen to remain as nt in person and has chosen to remain as such to date. I did recsuch to date. I did recommend to her that she seek free legal advice and/or see ommend to her that she seek free legal advice and/or see if any support is available fif any support is available from her professional association (she is a chartered rom her professional association (she is a chartered accountant). I hope that the claimant doaccountant). I hope that the claimant does foles follow this recommendation as it may low this recommendation as it may help her to negotiate the difficulties of help her to negotiate the difficulties of tribunal ltribunal litigationitigation aand to understand how nd to understand how ththatat processprocess works going forward.works going forward. The relevant law The relevant law Tribunal Rules of Procedure 2013 Tribunal Rules of Procedure 2013 -- Rule 76 (1)Rule 76 (1) A TribunalA Tribunal may make a costs may make a costs ordorder or a preper or a preparation time order, and shall consideraration time order, and shall consider whether to do so, where it whether to do so, where it considers thatconsiders that—— a party (or that party's representative) has acted a party (or that party's representative) has acted vexatiouslyvexatiously, abusively, , abusively, disruptively disruptively or or otherwiseotherwise unreasonablyunreasonably in either the bringing of the proceedings in either the bringing of the proceedings (or p(or part) or art) or thethe way that way that the proceedingsthe proceedings (or part) hav(or part) have been conductede been conducted; ….; ….
The relevant law
[14]Although costs awards are the exception to the rule this does not mean that the Although costs awards are the exception to the rule this does not mean that the facts facts of aof a case must be exceptional for a costs order tocase must be exceptional for a costs order to be made be made -- Power v Power v Panasonic (Panasonic (UK) LimitedUK) Limited UK UK [20[2003] IR03] IRLR 151. LR 151. What falls to be determined by What falls to be determined by the Tribunalthe Tribunal is whether, considering the whole picture of what has happened, is whether, considering the whole picture of what has happened, the Tribunal can conclude that the Tribunal can conclude that a costsa costs award should be made in such award should be made in such circumstances circumstances (Yer(Yerrakalava v rakalava v Barnsley MetropolitanBarnsley Metropolitan Borough CouncilBorough Council [201[2012] ICR 420).2] ICR 420).[15]“Unreasonable” has its ordinary Englis“Unreasonable” has its ordinary English meaning and is not to be interpreted as h meaning and is not to be interpreted as if it if it means somethingmeans something similar to vexatious (similar to vexatious (Dyer v Secretary of State for Dyer v Secretary of State for Employment EAT 183/83Employment EAT 183/83)).. Case Number: 2205781/2023 4 of 7[16]There is no requirement for a party to demonstrate any cauThere is no requirement for a party to demonstrate any causal link between the sal link between the specific items of costs claimed and tspecific items of costs claimed and the unreasonable behaviour of the other he unreasonable behaviour of the other party; rather, party; rather, ""the tribunalthe tribunal must have regard to the nature, gravity and effect of must have regard to the nature, gravity and effect of the unreasonable the unreasonable conduct asconduct as factors relevant to the exercise of the discretifactors relevant to the exercise of the discretion" on" —— McPherson v BNP Paribas McPherson v BNP Paribas SA [SA [2004] ICR 1398 2004] ICR 1398 at [40]at [40]..[17]A litigant in person should not be judged according to the same standard as A litigant in person should not be judged according to the same standard as professional representativesprofessional representatives in deciding whether the threshoin deciding whether the threshold to award costs is ld to award costs is met. Further, the met. Further, the fact thatfact that a party is ua party is unrepresented may be a relevant nrepresented may be a relevant circumstance in decidingcircumstance in deciding whether or not to exercise the discretion to award whether or not to exercise the discretion to award costs (even if the threshold for making such an costs (even if the threshold for making such an award isaward is met). See met). See AQ Ltd v. AQ Ltd v. Holden Holden [20[20112] UKEAT/0021/12/CEA.2] UKEAT/0021/12/CEA.[18]The Tribunal The Tribunal should should first consider whefirst consider whether the threshold in ET Rules 76(1)(ther the threshold in ET Rules 76(1)(a)a) has been met anhas been met and d then consider whether, in all the circumstances, it then consider whether, in all the circumstances, it is properis proper to to exercise its discretion to make an award of costs in this case. exercise its discretion to make an award of costs in this case. The responde The respondentsnts’’ applicationapplication[19]In summary the respondeIn summary the respondentsnts’’ say that say that the claimant has acted unreasonably the claimant has acted unreasonably andand/or /or vexatiousvexatiously by making rely by making repeatedpeated, piecemeal applications to amend her , piecemeal applications to amend her claims (after the origclaims (after the origiinal amendment made in October 2023) all of which havnal amendment made in October 2023) all of which have e no reno reasasonable prospect of onable prospect of ssuccess. uccess. The respondents also cited the alThe respondents also cited the allegations legations made by the claimant in her response to made by the claimant in her response to the costs the costs applicationapplication aas an example of s an example of her her unreasonable andunreasonable and vexatious bvexatious behaviourehaviour (see par(see paragraph 12 above).agraph 12 above). The claimant The claimant’’s response s response[20]The The claimantclaimant’’s s sstates that she feels that the Tribunal does not hear her tates that she feels that the Tribunal does not hear her or or recognise that she was a victim of abuse. Again, the claimant fails to recognise that she was a victim of abuse. Again, the claimant fails to understandunderstand that the that the mattermatter must be brought to a Final Hearing must be brought to a Final Hearing (no(now schw scheduled eduled for March 2023) for March 2023) before the Tribunal can reach a before the Tribunal can reach a decisiondecision on on whetherwhether heher claims r claims have succeehave succeeded.ded.[21]The claimThe claimant does not expant does not explain why a costlain why a costs ors order der shouldshould not be not be made butmade but repeats repeats thethe narrative of narrative of variousvarious applications and makeapplications and makes allegations (as referred s allegations (as referred to above) of to above) of misconductmisconduct by the respby the respondeondentsnts’’ representatives. representatives.
Conclusions
[22]The first stage in deciding this application is consider whether the consider whether the threshold in ET Rules 76(1)(threshold in ET Rules 76(1)(a)a) has been methas been met. . Case Number: 2205781/2023 5 of 7 Unreaso Unreasonablenable/Vexatious Co/Vexatious Conductnduct[23]Having reviewHaving revieweed the background to this case (as set oud the background to this case (as set out above) t above) and and having taken an overall having taken an overall view view (Yerrakalva(Yerrakalva)), , I find that the claimantI find that the claimant has acthas acted ed unreasonably (though not necessarily veunreasonably (though not necessarily vexatiouslyxatiously) in bringin) in bringing the g the variousvarious amendamendment applications. ment applications.[24]The claimant The claimant does not does not appear to appear to uunderstand that her claim nderstand that her claim mustmust be be expressedexpressed clearly clearly and cannot be dealt with by constant additions and variations.and cannot be dealt with by constant additions and variations. TThe he clclaimant haaimant hadd been told this by at least two Employment Judges in their been told this by at least two Employment Judges in their written written decisions butdecisions but has has nevertheless continevertheless continued to make applications to amend nued to make applications to amend her claims. her claims.[25]Further, the claimant Further, the claimant does not does not appear to appear to understaunderstand thand that the nature of t the nature of ttribunal claims/liribunal claims/litigattigation is that ion is that allall parties are entitled to put thparties are entitled to put their case and that eir case and that both both sides of the argument need to sides of the argument need to be heardbe heard by the Tribunalby the Tribunal, , beforebefore reachreachinging its its final decfinal decisision as to whether a claim suion as to whether a claim succeeds or fails. cceeds or fails.[26]As stated in As stated in numerous documents wnumerous documents written by her, tritten by her, the he claimant claimant regards regards any opany opposition position by the respondentby the respondents s to her applications or any challenge to her to her applications or any challenge to her actions or conduct actions or conduct in the liin the litigation tigation as anas an attack on her riattack on her right to free speght to free speechech. This . This then leads her to make serious allegations against the respondethen leads her to make serious allegations against the respondents/their nts/their reprrepresentatives and Tesentatives and Tribunribunal Judgesal Judges. . This cannot be regardThis cannot be regarded as reasonable ed as reasonable conduct in conduct in thethe litigationlitigation process. process. Tribunal Tribunal’’s discretions discretion[27]The next stageThe next stage is is for the Trifor the Tribunal bunal to to consider whether, in all the circumstances, consider whether, in all the circumstances, it it is properis proper to exercise its discretion to to exercise its discretion to make an award of costs in this case. make an award of costs in this case. In In exercexercising my discretion in this case I takising my discretion in this case I take into account the fact the into account the fact that this at this claimant is a liticlaimant is a litigant in person.gant in person.[28]I refer to paragraphs 32 and 33 of the Holden case in which HHJ Richardson said: “The threshold tests in rule 40(3) [the former version of Rule 76 (1)] are the same whether a litigant is or is not professionally represented. The application of those tests should, however, take into account whether a litigant is professionally represented. A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals; and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As Mr Davies submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold tests in rule 40(3). Further, even if the threshold tests for an order for costs are met, the Tribunal has discretion whether to make an order. This Case Number: 2205781/2023 6 of 7 discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. … This is not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity”[29]In this case I feel that the claimant’s behaviour should be put in the context of her lack of legal advice and representation. I bear in mind the reference in HHJ Richardson’s judgment to lay people possibly lacking the objectivity and knowledge of the law and legal practice which would be provided by a professional legal adviser. It is exactly this objectivity and knowledge which the claimant needs in order to progress this case and it is the lack of such advice and support which I believe may well have led to her unreasonable conduct to date.[30]I therefore exercise my discretion not to make a costs order against the claimant at this stage of the proceedings. However, the claimant must recognise that she should review her conduct going forward in this litigation (whether or not she chooses to obtain some legal advice or support).[31]If her previous conduct continues, a different Judge may not exercise his/her discretion in the claimant’s favour in the event of another application for costs being made by the respondents in the future. Employment Judge Henderson