Mrs N L Eke v NHS North West London ICB and Others: 2216000/2023
EMPLOYMENT TRIBUNALS
Case No 2216000/2023
Between
Mrs N L EkeClaimantNHS North West London ICB and OthersRespondent
Before
Employment Judge P KlimovDate 13 May 2025
JUDGMENT
[1]The claimant has acted vexatiously and unreasonably in the way that part of the proceedings has been conducted by her or on her behalf.[2]The claimant’s claim had no reasonable prospect of success.[3]The claimant is ordered to pay to the first respondent the respondents’ legal costs incurred in defending the claim from the third day following the date when the witness statements for the main hearing in January 2025 had been exchanged, capped at £80,000. The legal costs are to be assessed on the Case Number: 2216000/2023 standard basis by the Tribunal, pursuant to Rule 76(1)(b)(i) of the Employment Tribunal Procedure Rules 2024, if not agreed. JUDGMENT with oral reasons having been announced to the parties at the costs hearing on 13 May 2025, the written Judgment having been sent to the parties on 16 May 2025, and written reasons having been requested by the claimant on 16 May 2025, in accordance with Rule 60(4) of the Employment Tribunal Procedure Rules 2024 (“ET Rules”), the following reasons are provided: REASONS1 1 These written Reasons are prepared in accordance with the requirements set out in Rule 60 of the ET Rules. They are primarily for the parties to understand my decision, rather than to give a full story to an informed reader. Therefore, in the interests of proportionality, not every fact, or evidence and argument advanced by the parties at the hearing is mentioned in the Reasons. However, in coming to my decisions I duly considered all the relevant facts, evidence and arguments presented by the parties. If a particular fact, evidence, or argument is not mentioned in these Reasons does not mean that it has been overlooked by me. Introduction[1]By a claim form, dated 14 September 2023, the claimant brought a claim against the respondents2, containing complaints of race and sex discrimination, harassment, victimisation, and whistleblowing detriments.[2]On 29 November 2023, the respondents presented a response, denying all the claims.[3]On 9 January 2024, the claim came for a case management preliminary hearing before Employment Judge Smart. The claimant represented herself. The Judge sought to clarify the complaints and issues in the claim. Unfortunately, due to the expansive nature of the allegations, the 2-hour hearing proved insufficient, a further case management hearing was fixed. Various orders were given in preparation for the next hearing.[4]At the next preliminary hearing, on 3 April 2024, before EJ Chudleigh, at which the claimant was still representing herself, Robert Hurd was added as the seventh respondent, the list of issues was agreed, the case was listed for a final hearing over 15 days between 14 January and 3 February 2025, and the directions to prepare the claim for the final hearing were given.[5]The list of issues was very large. It contained 41 allegations (put in a 91-page table), across several heads of claim (direct race discrimination, direct sex discrimination, harassment related to race, harassment related to sex, victimisation, and detriments for making a protected disclosure). The time span of the allegations was equally expansive – from November 2020 to “present”. The claimant sought compensation of £386,084.07 in total, including £50,000 for injury to feelings, £10,000 – aggravated damages, £60,000 for personal injury, and £5,000 – exemplary damages, and £46,134.75 – 25% uplift for unreasonable failure to comply with ACAS Code. The claimant claimed financial loss of nearly £60,000, despite remaining at the first respondent’s employment and receiving her full salary.[6]From around June 2024, the claimant was represented by a firm of solicitors (Kilgannon & Partners LLP). At the final hearing, the claimant was represented by a specialist employment law barrister, Ms L Banerjee.[7]For the final hearing, the parties presented a 3613-page bundle of documents. The claimant’s witness statement ran for 71 pages and contained 282 paragraphs. Elisabeth Emmanuel was the claimant’s second witness. There were 12 witnesses for the respondent. The witness statements bundle had 224 pages in total. 2 The initial claim was brought against the first 6 respondents. Robert Hurd was added as a respondent to the proceedings later, on the claimant’s application.[8]After dealing with housekeeping and preliminary issues on day 1 of the hearing, and 1.5 days for the Tribunal’s reading into the case, day 3 started with the claimant’s barrister making an application to introduce in evidence additional documents (an 11-page extract of the staff survey). The application was opposed by the respondents and refused by the Tribunal for the reasons announced to the parties orally at the hearing. The hearing then continued with the claimant giving her evidence and being cross-examined by Ms L Gould, who appeared for the respondents.[9]Following the completion of the claimant’s cross-examination, at the end of day 6 of the hearing, Ms Banerjee asked for the hearing to be adjourned until 14:00 on day 7 to give her time to speak with the claimant. The adjournment was then extended, at the parties’ request, until 10am on day 7 of the hearing (23 January 2025).[10]At the start of the hearing on day 7, the claimant withdrew her claim entirely. Ms Banerjee said that she was no longer instructed by the claimant and appeared as a courtesy to the Tribunal to confirm the withdrawal of the claim. The claim was dismissed upon withdrawal. Ms Gould said that the first respondent (“R1”) would be making a costs order application.[11]On 24 January 2025, the claimant’s solicitors wrote to the respondents’ solicitors, arguing that a costs application would be inappropriate and unmeritorious, giving their reasons for that. The letter stated: “In the circumstances we put you on notice that if you make the costs application, we are instructed to apply for the costs of defending the application which is plainly misconceived and an attempt to manipulate the employment tribunal process for the purpose of managing the ongoing employment relationship.”[12]The R1’s costs order application was submitted on 26 February 2025. On 28 February 2025, I issued the following directions: “1) By 14 March 2025, the claimant must submit a response to the respondent's application for a costs order. In her response, the claimant must also confirm who would bear any award of costs, if made, and provide full information as to her ability to pay, if she would be asking the Tribunal for that to be taken into account in deciding the application. If the claimant has any comments on the respondent's proposed case management orders, she should include those in her response. 2) By 14 March 2025, both parties must write to the Tribunal with their dates to avoid from April 2025 until the end of the year. Further orders will be issued after that.”[13]On 4 March 2025, the claimant applied to the Tribunal for her claim “to be resurrected in full”. The grounds as to why her claim must be “resurrected” advanced by the claimant were expansive and included the fact that the respondents had made a costs order application against her. The application was refused by EJ Adkin on 7 March 2025. In dismissing the application EJ Adkin said: “I do not consider that I have the power to resurrect a claim that has been withdrawn and dismissed in these circumstances. Where a claimant is complaining about events which post-date an earlier claim they would be entitled to bring a further claim, subject to the Tribunal’s 3 month time limits for most claims….”[14]On 6 March 2025, the claimant applied to be given more time until 14 April 2025 to submit her response to the application, which I granted.[15]On the same day, the claimant’s solicitors wrote to the Tribunal, stating that they were no longer representing the claimant in these proceedings.[16]The costs hearing was fixed for 12 and 13 May 2025, of which the parties were notified on 19 March 2025.[17]On 20 March 2025, I issued further directions on disclosure of documents, preparation of a hearing bundle, exchange of witness statements and skeleton arguments.[18]On 11 and 14 April 2025, the claimant submitted her response to the costs order application.[19]At the costs hearing, the claimant represented herself. Ms Gould appeared for R1. There was a hearing bundle of 269 pages. The claimant presented a witness statement3 for herself and her witness, Elizabeth Emmanuel. Both gave sworn evidence and were cross-examined by Ms Gould. Both parties presented skeleton arguments, which they supplemented by oral submissions at the end of the hearing.[20]The claimant’s response and skeleton referred to her discussions with her solicitors and counsel, giving details of what was said during those discussions. At the start of the hearing, I explained to the claimant that the discussions with her lawyers were protected by legal advice privilege, and she did not need to reveal the content of those discussions. However, if she wanted to rely on the content of those discussions, she could (but did not have to) waive privilege. If she did waive it, however, Ms Gould would be entitled to cross-examine her on the content of her discussions with her lawyers and she would have to tell the truth, the whole truth and nothing but the truth about those discussions. She would not be able to “cherry-pick” what to reveal and what to keep secret. The claimant said that she understood that and wanted to rely on what was said in her discussions with her solicitors and counsel.[21]I gave my judgment at 3pm on day 2 of the hearing, granting the application (in part) and ordering the claimant “to pay to the first respondent the respondents’ legal costs incurred in defending the claim from the third day following the date when the witness statements for the main hearing in January 2025 had been exchanged, capped at £80,000. The legal costs are 3 The claimant presented her witness statement from the full merits hearing in January 2025, which was not relevant for the purposes of the issues to be decided at the costs hearing. However, it was agreed to treat her response to the costs order application and her skeleton argument as her witness statements. She was crossexamined on those statements. to be assessed on the standard basis by the Tribunal, pursuant to Rule 76(1)(b)(i) of the Employment Tribunal Procedure Rules 2024, if not agreed.”[22]Further orders in preparation for the detailed assessment hearing were sent to the parties on the same day, 13 May 2025. The costs assessment hearing has now been fixed for 10 November 2025. The costs order application[23]R1 apply for a costs order on the basis that the claimant:(i) acted unreasonably in her pursuit of the claim (Rule 74(2)(a));(ii) acted vexatiously in her pursuit of the claim (Rule 74(2)(a)); and / or(iii) pursued a claim which had no reasonable prospects of success (Rule 74(2)(b)).[24]R1 says that it has incurred substantial costs, more than £137,000 plus VAT, in defending the claim for all seven respondents. It argues that as the costs have been funded by the public purse, it is the R1’s duty to seek to recover the costs, because it was the claimant’s unreasonable and vexatious conduct in pursuing her unmeritorious claim that forced R1 to spend large sums of public money in defending it.[25]R1 highlights the fact that the claimant is a highly educated professional who was employed at an NHS Band 8C level. She had the benefit of legal advice from June 2024 and yet did not withdraw her claim until she had been through cross examination and finally recognised the lack of merit to her claim. That is despite the volumes of documentary and witness evidence available to her and her representatives in advance of the hearing, which demonstrated to them that the claim had no merit.[26]R1 submits the claimant’s conduct of the proceedings has been unreasonable and/or vexatious in pursuing 41 factual allegations, each of which she attributed to being a combination of direct race discrimination, direct sex discrimination, harassment related to race, harassment related to sex, victimisation, and/or detriment on the grounds of having made a protected disclosure. In its totality - 16 protected acts/disclosures and 148 allegations of less favourable/detrimental treatment.[27]R1 argues that the overlap in these allegations, and the basis on which the claimant perceived acts towards her had been done, lacked any credibility. R1 says, the claimant threw everything at the respondents in order to “see what sticks”. R1 submits that it was unreasonable conduct of the proceedings for the claimant to have each factual allegations to be explored under different heads of claim, because in reality, based on the available evidence, the claimant did not and could not reasonably and objectively have believed that any of the things she complained about were done on any of the proscribed grounds. All these allegations had been explored though internal and external grievance processes and non-discriminatory explanations provided to the claimant, which she simply refused to believe. That, in light of the evidence she had, was unreasonable. That was fully exposed in her crossexamination, but should have been apparent to her and her solicitors before the start of the hearing.[28]R1 argues that the claimant’s claim had no merits, and with the claimant being professionally represented at least from June 2024, it should have been apparent to her and her solicitors. All the matters the claimant complained about in these proceedings had been duly and fully explored through internal and external investigations and explained to the claimant. She, however, despite having no evidence to substantiate her allegations, remained resolute that it was a conspiracy against her and everyone involved was against her. That, R1 argues, was equally shown by the claimant’s evidence. Her witness statement did nothing to provide a prima facie evidential case and simply speculated (wrongly) on the reasons behind the alleged unfavourable and detrimental treatment. In her cross-examination the claimant made sweeping bald assertions without any factual basis to back them up. R1 gives several examples of that in the application.[29]R1 further argues that the claimant’s conduct of the proceedings echoed how she was acting in her employment, whereby she would continually raise numerous, repetitious and unmeritorious grievances about her colleagues and managers, refusing to accept the plain and evidenced fact that her views were objectively wrong. Each time, she raised a further grievance or appeal, engaging in a vendetta against anyone who refused to accept her allegations that she had been subjected to a conspiracy by unrelated individuals, many of whom had absolutely no reason to have any vendetta against her. Therefore, R1 argues, her pursuit of the claim against individual respondents was a personal vendetta with no proper basis, and as such was unreasonable and vexatious conduct of the proceedings. The claimant naming six individual respondents, and maintaining that position, despite R1 accepting vicarious liability for them, further complicated the proceedings and caused R1 to incur additional and unnecessary legal costs.[30]R1’s application then goes on to address the specific issues raised by the claimant’s solicitors in their “pre-emptive” letter of 24 January 2025 (see above). I shall refer to those, where appropriate, later in the judgment. The claimant’s response[31]The claimant’s response to the application was lengthy and discursive. Her grounds of opposition may be summarised as follows4: 4 I have duly considered all the claimant’s submissions and arguments (both written and oral). However, in the interest of proportionality, in my analysis and conclusions I do not deal with each and every argument advanced. This, however, does not mean that I have overlooked it. Equally, many of the basic underlying facts are within the parties’ knowledge and not in dispute. There is no need for me to repeat them here.(i) Her claim was assessed by solicitors and counsel and given more than 51% chance of success, on which basis it was then funded by her insurer,(ii) It was her right to bring her claim and have it heard by the Tribunal,(iii) It was listed by the Tribunal for 15 days, which would not have happened if it had had no merits,(iv) She did not withdraw her claim because of lack of merit, but because she feared that Elizabeth Emmanuel (her second witness) would be victimised by R1 if she came to give evidence at the trial,(v) The withdrawal of the claim was borne out of her “magnanimity”,(vi) The respondents’ witnesses lied in their witness statements,(vii) The respondents did not seek to strike out her claim, or a deposit order,(viii) The respondents did not give her a costs warning,(ix) There were agreed facts in the claim,(x) R1 is acting vexatiously in seeking a costs order against her, it is designed to intimidate her, and is an abuse of process,(xi) R1 refused her without prejudice offer, her counsel told her that R1 wanted a public judgment against her to help R1 to manager her out,(xii) The respondents’ witnesses had not been cross-examined and therefore it is unlikely that the Tribunal would reach an objective view of what its decision would have been,(xiii) She continues to be discriminated and victimised by the respondents after the final hearing,(xiv) The respondents are acting in bad faith,(xv) Her health deteriorated as a result of the ongoing discrimination and victimisation, including R1 pursuing this costs application.[32]The claimant provided some limited information as to her ability to pay.[33]In her skeleton, the claimant drew my attention to two cases (Timbo v Greenwich Council for Racial Equality UKEAT/0160/12/SM, and Mr A E Madu v Loughborough College: [2025] EAT 52) in support of her contention the Tribunal cannot determine the merits of a claim until all the evidence are heard. Therefore, the claimant says, “[i]t is rather presumptuous of the Respondent to think my claim does not have merit because I made the decision to withdraw it and move on when the witnesses had not been examined”. The Law[34]Rule 74 of the Employment Tribunal Procedure Rules 2024 (“the ET Rules”) states: (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) 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, Where I have made a factual finding, relevant to the determination of the application, my finding is stated in the analysis and conclusions section.(b) any claim, response or reply had no reasonable prospect of success,… “[35]Rule 76(1) of the ET Rules states: “76.—(1) A costs order may order the paying party to pay—(a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;(b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998(33), or by the Tribunal applying the same principles; (ii) […]”[36]The following key principles relevant to the Tribunal’s powers to make costs orders can be derived from the case law.[37]Costs awards in the employment tribunal are still the exception rather than the rule. The tribunals should exercise the power to order costs more sparingly than the civil courts - (Yerrakalva v Barnsley Metropolitan Borough Council 2012 ICR 420, CA).[38]There is a two-stage exercise to making a costs order. The first question is whether a paying party has acted unreasonably or has in some other way invoked the jurisdiction to make a costs order. The second question is whether the discretion should be exercised to make an order. Only if the tribunal decides to exercise its discretion to make an award of costs the question of the amount to be awarded comes to be considered - (Haydar v Pennine Acute NHS Trust UKEAT/0141/17).[39]In a recent EAT decision- (Mr M Willis v 1) GWB Harthills LLP 2) Miss Hester Russell 3) Mrs Elizabeth Lord: [2025] EAT 79), HHJ Tayler, having reviewed the relevant legal principles applicable to costs order applications, summarised the three-stage approach the Tribunal should follow in deciding such applications: “6. The application of these rules can be split into three stages: Stage 1: is there conduct that could warrant making a costs order (“threshold conduct”) Stage 2: if so, should an award of costs be made (“the discretionary decision”) – the Employment Tribunal may have regard to ability to pay at this stage Stage 3: if so, what amount of costs should be awarded (“the quantum decision”) – the Employment Tribunal may also have regard to ability to pay at this stage 7. At stage 2 a wide range of factors can be relevant, such as the party’s subjective belief in the merits of a complaint or defence, the type of complaint and whether the party had the benefit of legal advice. Rule 84 gives the Employment Tribunal the power to have regard to the paying party’s ability to pay as part of the Stage 2 discretionary decision. An Employment Tribunal might conclude where a party is guilty of threshold conduct, and there are no other factors pointing against making a costs order, that a party’s total inability to pay is such that no costs order should be made. In other cases, the Employment Tribunal might decide it is appropriate to make a costs order but take account of the party’s ability to pay in limiting the award when making the Stage 3 quantum decision. 8. There is no requirement to identify these stages in the analysis of an application for costs, although they may provide a useful framework to ensure a necessary component is not missed….”[40]While the threshold tests for making a costs order are the same whether or not a party is represented, in the application of the tests it is appropriate to take account of whether a litigant is professionally represented or not. Litigants in person should not be judged by the standards of a professional representative - (AQ Ltd v Holden [2012] IRLR 648).[41]Where the paying party has taken legal advice, the Tribunal should proceed on the assumption that the party has been properly advised - (Brooks v Nottingham University Hospitals NHS Trust UKEAT/0246/18 EAT).[42]The term “vexation” shall have the meaning given by Lord Bingham LCJ in AG v Barker [2000] 1 FLR 759: “[T]he hallmark of a vexatious proceeding is … that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.” - (Scott v Russell 2013 EWCA Civ 1432, CA).[43]“Unreasonable” has its ordinary English meaning and is not to be interpreted as if it means something similar to “vexatious” - (Dyer v Secretary of State for Employment EAT 183/83).[44]In determining whether to make a costs order for unreasonable conduct, the tribunal should consider the “nature, gravity and effect” of the paying party’s unreasonable conduct — (McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA), however the correct approach is not to consider “nature”, “gravity” and “effect” separately, but to look at the whole picture.[45]While a precise causal link between unreasonable conduct and specific costs is not required, it is not the case that causation is irrelevant. However, the tribunal must look at the entire matter in all its circumstances – (Yerrakalva v Barnley MBC [2012] ICR 420). Mummery LJ gave the following guidance on the correct approach: “41. 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”.[46]Whether a claim or a defence had reasonable prospects of success is an objective test. It is irrelevant that the party genuinely thought that their case had reasonable prospects of success – (Scott v. Inland Revenue Commissioners [2004] ICR 1410 CA, at [46]).[47]In considering whether a claim or a defence had no reasonable prospects of success, the tribunal is not to look at the entire claim, but each individual cause of action – (Opalkova v Acquire Care Ltd EAT/0056/21 at [17]).[48]Whether a claim or a defence had no reasonable prospects of success from the outset is to be judged by reference to the information that was known or was reasonably available at the start of the proceedings – (Radia v. Jefferies International Ltd EAT/0007/18, at [65]). The tribunal should be wary of being wise with hindsight. But Radia is not authority for the proposition that, as long as a claim had had reasonable prospects of success at the outset, pursuing it after it has become clear that it does not have reasonable prospects of success will not engage the costs jurisdiction.[49]In Cartiers Superfoods Ltd v Laws [1978] IRLR 315, the EAT said that the the Tribunal must: “... look and see what the party in question knew or ought to have known if he had gone about the matter sensibly.”[50]Radia, at [62], is also authority for the proposition that there may be an overlap between unreasonable conduct under rule 74(2)(a) and no reasonable prospects of success under rule 74(2)(b).[51]The failure by the receiving party to apply for a strike out or issue a costs warning on the ground that the paying party’s case has no reasonable prospect of success may be a factor for the Tribunal to take into account when exercising its discretion – (AQ Ltd v Holden [2012] IRLR 648 EAT). However, such failure to apply for a strike out or to issue a costs warning is not sufficient as the evidence “that those claims had in fact any reasonable prospect of success.” – (Vaughan v Lewisham LBC [2013] IRLR 713 EAT, at [14]).[52]Where a party makes an offer to settle a case, which is refused by the other side, costs can be awarded if the tribunal considers that the party refusing the offer has thereby acted unreasonably – (Kopel v Safeway Stores plc [2003] IRLR 753, EAT, at [16-18]).[53]Costs awards are compensatory, not punitive – (Lodwick v Southwark London Borough Council [2004] ICR 884 CA).[54]Under Rule 82 of the ET Rule, the tribunal may but is not required to have regard to the paying party’s ability to pay. In Jilley v Birmingham and Solihull Mental Health NHS Trust (21 November 2007) HH Judge David Richardson said: “[44] Rule 41(2) gives to the Tribunal a discretion whether to take into account the paying party’s ability to pay. If a Tribunal decides not to do so, it should say why. If it decides to take into account ability to pay, it should set out its findings about ability to pay, say what impact this has had on its decision whether to award costs or on the amount of costs, and explain why. Lengthy written reasons are not required. A succinct statement of how the Tribunal has dealt with the matter and why it has done so is generally essential.”[55]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, at [14-15]).[56]The assessment of means is not limited to the paying party’s means as at the date of the hearing. The tribunal is entitled to take account of the paying party’s ability to pay in the future, provided that there is a “realistic prospect” that he will be able to satisfy the order in the future - (Vaughan v LB Lewisham [2013] IRLR 713, EAT, at paras.26-28).[57]Once a tribunal has decided to have regard to the paying party’s ability to pay, it must take into account his or her capital, as well as income and expenditure. In Shields Automotive Ltd v Greig EATS/0024/10, unreported, (at [47]), the EAT in Scotland stated that ‘assessing a person’s ability to pay involves considering their whole means. Capital is a highly relevant aspect of anyone’s means. To look only at income where a person also has capital is to ignore a relevant factor.’ The EAT also rejected the claimant’s submission that capital is not relevant if it is not in immediately accessible form, observing that ‘a person’s capital will often be represented by property or other investments which are not as accessible as cash but that is not to say that it should be ignored.’[58]In Howman v Queen Elizabeth Hospital Kings Lynn EAT 0509/12, the EAT said that any tribunal when having regard to a party’s ability to pay needs to balance that factor against the need to compensate the other party who has unreasonably been put to expense. The former does not necessarily trump the latter, but it may do so.[59]In M Willis v 1) GWB Harthills LLP 2) Miss Hester Russell 3) Mrs Elizabeth Lord: [2025] EAT 79, the EAT said: “9. Reading Rule 84 [equivalent to Rule 82 in the current version of the ET Rules] and the relevant authorities, and applying a little common sense, establishes several principles that will often be of assistance. Rule 84 provides a discretion to have regard to ability to pay but there is no requirement to do so. If an Employment Tribunal decides not to have regard to ability to pay generally it should succinctly explain why: Jilley v Birmingham and Solihull Mental Health NHS Trust UKEAT/0584/06. In many cases it is desirable to have regard to ability to pay: Jilley. Factors that might lead an Employment Tribunal not to have regard to ability to pay include where a party has failed to attend or take the opportunity to provide evidence about ability to pay or where an Employment Tribunal considers that such evidence that has been provided is so unreliable as to be worthless: Jilley. Where an Employment Tribunal does have regard to ability to pay it should give a brief explanation of how it has done so that is Meek compliant in that the parties can understand in broad terms how ability to pay has been taken into account: Jilley. This may require some analysis of income and outgoings and of any assets or debts. Capital assets may be an important aspect of a party’s ability to pay even if not immediately or easily realisable: Shields Automotive Ltd v Greig UKEATS/0024/10. Where assets are jointly owned, such as a family home, it may be relevant to consider the share held by the party against whom the costs application is made: Howman v The Queen Elizabeth Hospital Kings Lynn UKEAT/0509/12/JOJ; including the effect of the sale on the other person who jointly owns the asset.”[60]The Presidential Guidance on General Case Management state: “17. Broadly speaking, costs orders are for the amount of legal or professional fees and related expenses reasonably incurred, based on factors like the significance of the case, the complexity of the facts and the experience of the lawyers who conducted the litigation for the receiving party.” 18. In addition to costs for witness expenses, the Tribunal may order any party to pay costs as follows: 18.1 up to £20,000, by forming a broad-brush assessment of the amounts involved; or working from a schedule of legal costs; or, more frequently and in respect of lower amounts, just the fee for the barrister at the hearing (for example); […] 21. When considering the amount of an order, information about a person’s ability to pay may be considered. The Tribunal may make a substantial order even where a person has no means of payment. Examples of relevant information are: the person’s earnings, savings, other sources of income, debts, bills and necessary monthly outgoings.” Analysis and Conclusions Threshold conduct[61]In this case there is a significant overlap between the alternative grounds upon which the application is advanced, meaning that the questions of whether the claimant’s claim had no reasonable prospect of success (and if so, from what moment in time), and whether it was unreasonable and/or vexatious for the claimant to bring or continue to pursue her claim go hand in hand. It would be artificial to separate them and consider individually.[62]In other words, it is not a case where the claimant’s conduct of the proceedings per se, i.e. independent of the merits of her claim that is subject to the R1’s criticism. It is the fact that, on the R1’s case, the claimant was pursuing an unmeritorious claim, which she and her advisers knew or should have known had no reasonable prospect of success, is said to be the claimant or her representatives bringing or conducting the proceedings in an unreasonable and/or vexatious manner.[63]At the core of the R1’s application is the argument that the way the claimant presented her claim, with:a. 41 factual allegations across various heads of claims,b. 9 alleged protected acts,c. 7 alleged protected disclosures,d. 40 allegations of direct race discrimination,e. 13 allegations of direct sex discriminationf. 31 allegations of harassment,g. 38 allegations of victimisation, andh. 26 allegations of whistleblowing detriment; and (in total 148 allegations of less favourable treatment, detriments, and unwanted conduct), demonstrates the unreasonable and vexatious conduct by the claimant, given that on the evidence presented by the claimant she could not reasonably and objectively believed that these alleged mistreatments of her had anything to do with her race, or sex, or the alleged protected acts and protected disclosures.[64]I am mindful of the fact that this case has not gone the full length. The Tribunal has made no firm factual findings5 and determinations on the merits of the claim. However, in some respect, that puts me in a better position to consider the costs application objectively. That is because it cannot be said that my decision would be influenced by the hindsight of how the respondents’ evidence unfolded at the trial and what the Tribunal ultimately decided on the merits of the claim. 5 It is relevant to note that most of the underlying facts in the claim were not in dispute. There was an 18-page table of the agreed facts. What was disputed is the interpretation of those facts.[65]The claimant withdrew her claim straight after she had finished giving her evidence, thus concluding her case. In that respect, it was the highwater mark of her evidential case she put to the Tribunal. I, therefore, must look at her “highwater mark case”, and ask myself whether that case had no reasonable prospect of success (and if so, from when), and whether it was unreasonable for the claimant to bring it in the first place, or to continue to pursue it from a later moment in time.[66]As noted above, the claim was expansive in extreme. The claimant made numerous allegations of discrimination because of race and sex, harassment related to race and sex, victimisation, and detriments for making a protected disclosure. She made allegations of unlawful conduct, not only against her employer and six named individual respondents, but against other people in the R1’s organisation, including against those whom she never met and had little or no prior interactions with, such as, for example, Mr Jonathan Turner, who had the misfortune of not responding to the claimant’s one single (and inconsequential) email she ever sent to him, and whom she then accused of discriminating against her because of her race and sex and victimising her by failing to respond.[67]R1 advances the application on the basis that the claimant’s entire claim had no reasonable prospect of success, and it was unreasonable and vexatious for her to bring it or continue to pursue it to and through the final hearing, and not on the basis that some of the 148 allegations had no reasonable prospect of success, where others might have had.[68]I, therefore, will conduct my analysis on that “whole claim” basis, without dissecting the claimant’s claim into individual complaints and allegations and analysing them one-by-one. That would wholly disproportionate and, as my conclusions will show - unnecessary.[69]Turning to the substance of the claim and how it was advanced by the claimant. As I have said earlier, the claimant’s case was expansive, to say the least. The claimant adopted what can only be described as “a scattergun approach” by complaining about anything and everything that happened to her since November 2020 (no matter how minor or trivial) as acts of race and sex discrimination, harassment, victimisation and detriments for making a protected disclosure. Like a snowball her claim grew in size and complexity, with virtually every step taken by the respondents in trying to resolve the claimant’s earlier grievances becoming the subject matter of her new grievances and complaints.[70]It became so unwieldy that it and took some effort for her counsel working with the respondents’ counsel (and I grateful for that to both counsel) to pull all that together into some structure by creating a table, listing all complaints and allegations in the claim. It is telling that the table ran for 22 pages, contained 40 factual allegations, each under multiple causes of action, with 184 separate questions for the Tribunal to answer.[71]Obviously, such an expansive claim (if the claimant truly believed in it) required the claimant to provide clear and cogent evidence, and not only about the alleged events, acts, or omissions, but also about the facts, from which the Tribunal could conclude, in the absence of any other explanation, that these things happened to the claimant because of race, or sex, or protected acts, or protected disclosures.[72]Although the claimant produced a lengthy witness statement, running for some 71 pages and 282 paragraphs, it was clear from reading her statement that the evidence she would be giving to the Tribunal lacked any proper factual basis, from which it could be reasonably concluded that race, sex, protected acts, or protected disclosures was what influenced various treatments of the claimant she complained about.[73]The so-called “something more” element was distinctly absent in her evidence. The highest the claimant took her evidential case on the question of causation was that she “believed” that the treatments she complained about was because of her race, sex, protected acts, and protected disclosures, but gave virtually nothing to explain upon what factual basis she held that belief.[74]When the Tribunal queried this matter with the claimant’s counsel at the start of the final hearing, Ms Banerjee said that the Tribunal would need to look at the totally of evidence before it before considering whether inferences could be properly drawn as to the proscribed reasons for the conduct complained of.[75]Whilst it is true, that approach equally shows that the claimant’s positive case on “the reason why” question was at best speculative. It was based on her unexplained “belief”, and “the totality of evidence” (where no individual elements of the “totality” were articulated in the claimant’s witness statement) from which the Tribunal would later be invited to infer discriminatory motivation.[76]The last-minute attempt by the claimant’s counsel to introduce additional documents in evidence (selected pages from the staff survey) further betrays the fact how thin the claimant’s evidential case on linking the impugned treatment to the prohibited grounds was. To put it simply, other than the claimant’s unexplained “belief” that she was treated badly because of her race, sex, protected acts, or protected disclosures, the claimant had nothing to show by way of concrete evidence to make that connection.[77]The claimant’s evidence she gave in this costs hearing further supports this conclusion. Despite a rather unsatisfactory manner, in which she gave her evidence (to which issue I will return later), the claimant did say that her counsel had advised her that unless the respondents’ witnesses would admit in cross-examination to discriminatory motivation (which was unlikely), it would be very difficult for the Tribunal to infer discrimination from the evidence before it.[78]I am, of course, cognisant that it is rare to find direct evidence of discrimination. The outcome of discrimination cases will usually depend on what inferences it is proper to draw from primary facts established by the Tribunal. However, it is still for the claimant to present evidence to establish such primary facts from which an inference of discrimination can properly be drawn.[79]In this case, the claimant’s positive case on primary facts was such that any of these facts by themselves showed very little that could be sensibly said as pointing towards any discriminatory motivation by the people she accused of acting in that manner. Hence, the last-minute attempt to introduce in evidence the selected pages from the staff survey as some king of overarching evidence that shows, what the claimant described at this hearing, “the culture” of discrimination and victimisation permeating the entire R1’s organisation.[80]In other words, it must have been apparent to the claimant and those advising her, that her evidential case was so thin that it would be impossible to make good any of the allegations on her own evidential case alone. Therefore, the only hope was to try and undermine the respondents’ evidential case and then seek to make something out of “damage” the claimant’s counsel would be able to inflict on the respondents’ evidence in cross-examination.[81]To be clear, I am not saying that the non-admitted evidence (11 pages from the staff survey) would have made any difference to the claimant’s case. That evidence was of little (if any) probative value, and that was one of the main reasons why it was not allowed by the Tribunal.[82]The incongruity of the claimant’s evidential case on the “reason why question” was consistently exposed during the claimant's cross-examination. However, instead of conceding the obvious flaws and contradictions in her allegations, the claimant embarked on developing various conspiracy theories, essentially implicating everyone she ever came across, who did or said something not to her liking, as being a racists or sexists or both, and branding some of these people as lairs.[83]The claimant did not stop, even when it was pointed out to her that some of the people, she was accusing of being racist to her were, like her, Black. Instead, she went on to allege (which allegation was not supported by any credible evidence) that Black African people were treated worse at R1 than Black Caribbean people, and that Black Caribbean people were discriminating against Black African people because of their race.[84]I appreciate that many claimants who bring discrimination claims often do not know why the respondent acted in a way about which they complain, and may, rightly or wrongly, jump to the conclusion that it was because of their protected characteristic (race, sex, etc). Such conclusion is often expressed by them as: “I can’t think of any other reason”.[85]As was stated by the EAT in the Madu case (the claimant relies upon), quoting from another EAT authority Saka v Fitzroy Robinson Ltd EAT/0241/00 at paragraph 10 the “very real difficulties which face a claimant in a discrimination claim”, is that there is often a lack of overt evidence and so “it may be and often is very difficult for the claimant to know whether or not he has real prospects of success until the explanation of the employer’s conduct which is the subject of complaint is heard, seen and tested”. (my emphasis)[86]In this case, however, the claimant knew all along why the respondents acted in the way they did. Her complaints about all these matters (which then became allegations of discrimination, harassment, victimisation and detriments in these proceedings) had been thoroughly investigated (both internally and externally) and answered in several grievances submitted by the claimant.[87]I do not say that the claimant was obliged to obediently accept the outcomes of her grievances. She, of course, was within her right to challenge the respondents’ position through the employment tribunal’s process, if she genuinely felt that she was discriminated against, harassed, victimised, or subjected to detriments on the prohibited grounds.[88]However, that also meant that by embarking on this formal judicial process she must have held the view that, despite what the respondents were telling her in the internal processes, she had evidence, from which an independent tribunal could conclude that she was in fact discriminated against, harassed, victimised and subjected to detriments for “whistleblowing”, which, as I have said earlier, taking her positive evidential case at its highest, she simply did not have.[89]Furthermore, and significantly to the outcome of this costs application, as part of these proceedings, the claimant had received and read the witness statements of 12 witnesses for the respondents, dealing in a very precise and comprehensive way with each and every allegation the claimant was advancing in these proceedings, including by giving her detailed non-discriminatory reasons why they acted in the way she complained about.[90]In other words, the claimant had comprehensive explanations for every event and for every conduct she was complaining about, including the reason why all these people did or did not do what she claimed was proscribed conduct by them. The explanations were cogent and reasonable. There was nothing on the face of them that could have made a reasonable person to conclude that they were not credible. I, of course, do not say that the claimant was obliged to accept them without question. If she thought that the explanations provided by the respondents’ witnesses were false (or as she still maintains – some of the witnesses were outright lying in their witness statements) she was perfectly entitled to challenge them on their evidence in cross-examination. However, she chose not to do that.[91]By that stage in the proceedings (i.e. when the witness statements had been exchanged) the claimant had a firm of solicitors and a very experienced employment law specialist barrister advising her. The claimant’s solicitors had been on record for at least 9 months, and by then had prepared the claimant’s evidential case (including her 72-page witness statement).[92]Therefore, I find that, as things stood then, it would have been apparent to the claimant and her legal team that the only hope for the claimant to make good her claim (or any part of it) would be to challenge the respondents’ evidence, and despite the lack of evidence from the claimant herself, from which inferences of discriminatory motivation could be drawn, essentially try and gather such evidence by undermining the respondents’ case in cross-examination.[93]Furthermore, as the claimant said in her skeleton and again during her crossexamination in this hearing, her case was (and still is) that two key witnesses for the respondents were lying in their witness statements. That would have been a perfect way to undermine the respondents’ case as lacking credibility. Yet, she chose to drop her claim without challenging any of the respondents’ witnesses on their evidence.[94]I do not accept that the decision to withdraw was because the claimant felt “emotionally distressed” (as she said during this hearing), or for the sake of Ms Emmanuelle, or in her desire to move on, or borne out of the claimant’s magnanimity.[95]When she decided to withdraw the claim, the claimant had already completed her main part in the proceedings. She had finished giving her evidence to the Tribunal. If she felt emotionally distressed and could not take part in the proceedings anymore, she could have simply let her counsel to get on with her job of cross-examining the respondents’ witnesses and building up an evidential case for the claimant from that. She could have sat back and watched, or if that was all too hard for her - she could have left the hearing altogether. In any event, at the time neither her, nor her counsel said anything about the claimant being “emotionally distressed”, or otherwise unable to continue with the hearing for health reasons. No application to adjourn the hearing for that reason was ever made to the Tribunal.[96]I equally reject the explanation that the reason for the withdrawal was the claimant wanting “to move on”. She had a perfect opportunity to move on, when at the start of the hearing the respondents indicated that they would be prepared to accept a drop hand settlement offer (intimated to them by the claimant’s counsel before the hearing), with the claimant returning to band 8B role in a different team - the Safeguarding Team (given that the claimant herself insisted that she would not be returning to her old role in the Quality Team, until her lastminute volte-face on this issue) and with 2-year pay protection, which would have seen the claimant to her retirement. Unbelievably, she turned it down. Clearly, she was not prepared to move on. Her unsuccessful attempt to “resurrect” her claim, is another example of the claimant not wanting to move on.[97]I reject the claimant’s evidence that she decided to withdraw her claim because Ms Emmanuelle had told her that she had been victimised for being the claimant’s witness in these proceedings. Firstly, if that was the case, it seems incredible that the claimant did not raise it with the Tribunal and indeed (on her own evidence) did not even mention it to her counsel. Secondly, Ms Emmanuelle’s evidence was at best of marginal (if any) relevance to the claimant’s claim. The claimant’s case was never going to turn one way or the other based on Ms Emmanuelle’s evidence. Therefore, if the claimant had any concerns about Ms Emmanuelle being victimised by the respondents for giving her evidence, she could have simply not called her. There was no need to drop the entire claim because of that. Thirdly, Ms Emmanuelle had no issues with coming and giving evidence in this costs hearing. Fourthly, Ms Emmanuelle herself is pursuing a claim against R1 and five of the same individual respondents. Therefore, it is highly unlikely that giving evidence for the claimant in these proceedings would have concerned her as inviting the alleged retribution from the respondents. Finally, and critically, it is not Ms Emmanuelle’s evidence to this Tribunal that she had asked the claimant to withdraw her claim for her fear of being victimised by the respondents. On the contrary, Ms Emmanuelle says in her statement: “I was happy to continue with my decision to witness because I was going to give factual evidence” and it was the claimant, who stepped her down on the day when she meant to be giving her evidence.[98]As to the magnanimity of the claimant, the Oxford dictionary gives several definitions of this word. The most relevant reads: “Nobility or generosity of spirit; superiority to petty resentment or jealousy; noble or generous disregard of insults or injuries; an instance of any of these.”[99]I find that the claimant’s conduct was the complete opposite. Since her failure to secure the role due to her scoring low in November 2020, the claimant embarked on a vindictive campaign against everyone in the R1’s organisation who in any shape or form was somehow connected to that initial scoring decision or involved in the subsequent events. When the claimant was then offered the very same job that she had been unsuccessful in applying for (because the reserved candidate did not return from his medical leave), instead of showing generosity of spirit and putting behind her resentments about the selection process, she said “no” to that opportunity, and instead embarked on a campaign of raising multiple grievances and casting her net of allegations wider and wider.[100]The same vindictive approach shines through her Tribunal claim. Not only in her claim she complained about anything and everything that was not to her liking, including such trivial matters as not receiving a response to her email from Mr Turner, she was prepared to call the people involved racists and/or sexists and/or victimisers, even when she met them only once or, as in the case of Mr Turner - never met them at all.[101]In her cross-examination during the substantive hearing, the claimant showed a remarkable readiness to stick “racist” label on anyone in order to salvage her rapidly sinking case, even if that was in direct contradiction to her own just given evidence. For example, in dealing with her allegations against Ms Garanito, the claimant first said that she did not believe that Ms Garanito was racist to her, but in answering the very next question she said - yes, that in fact she thought that Ms Garanito was racists to her.[102]In her closing submissions, the claimant went even further, suggesting that she knew that Jennifer Roye and Judith Demello would be lying to the Tribunal and decided to withdraw her claim because she magnanimously wanted to spare them the embarrassment of perjuring themselves. I reject that explanation as totally fanciful and lacking any credibility.[103]In short, I reject the claimant’s evidence and submissions that she withdrew her claim because of any of these reasons.[104]Although the claimant waived legal privilege and offered some evidence about what advice she was given by her lawyers with respect to the strength of her case, her evidence about these matters were highly unreliable, contradictory and self-serving. She was very selective and vague in her evidence. She did not tell the Tribunal the whole truth and nothing but the truth.[105]For example, the claimant said that she had been told by her counsel that if she withdrew the claim no costs application would follow (which by itself would be very unlikely for an experienced barrister to give such advice), but then the claimant accepted that it was on her instructions that Ms Banerjee went to Ms Gould to make a drop-hands settlement offer, which the claimant at the time understood to mean that if she had dropped her claim, the respondents would not be seeking a costs order against her. If she indeed had been advised that by withdrawing her claim she would not be facing the risk of a costs order application, why would she then instruct her barrister to seek a drop-hands settlement on that very basis?[106]Her evidence about what Ms Banerjee had told her on the conclusion of her evidence were even more striking in their contradictions and inconsistencies. First, the claimant said that Ms Banerjee said that the strongest part of her case was against the R1’s CEO (Mr Hurd), but because the documents she was trying to get admitted in evidence at the start of the hearing (the 11-page extract from the staff survey) were not allowed, it would be very difficult to prove the case as the respondents’ witness would not admit to discrimination.[107]However, in answering a follow-up question, the claimant said that Ms Banerjee in fact had advised her that she had a really strong case against the CEO and on all other allegations (with the possible exception with respect to Ms Garanito), and that her overall case had reasonable prospect of success based on the evidence before the Tribunal. At the same time the claimant said that Ms Banerjee had outlined to her various options, which included withdrawing the entire claim, which option the claimant then chose to take.[108]It is simply not credible that if the claimant:a. was given advice that her case was strong, and the evidence before the Tribunal to prove it was sufficient,b. believed (which belief she maintains to this day) that two of the respondents’ key witnesses were lying, and that lie would be exposed in crossexamination,c. was seeking various remedies, including a substantial financial compensation of over £360,000,d. had a legal bill of over £120,000, £100,000 of which was paid by her insurance, ande. had to keep her insurers updated on the prospect of her claim, she suddenly decided to walk away from all of that and instead face a very uncertain prospect of about her future at the R1’s organisation.[109]I, therefore, give little weight to the claimant’s oral evidence.[110]I find that, based on such limited evidence as I have before me, the much more likely scenario is that the claimant on the conclusion of her evidence (and it was the first time after the claimant taking the oath when her counsel could talk to her) had been advised by Ms Banerjee that her evidential case was very weak. Therefore, unless she (Ms Banerjee) would be able to extract from the respondents’ witnesses a some sort of admission that they treated the claimant in the way she complained of because of her race, or sex, or protected acts, or protected disclosures, which would be very unlikely, the claimant’s case was doomed to fail, and that she (Ms Banerjee) had the professional duty to advise the claimant’s solicitors and the insurers of that assessment.[111]Consequently, in those circumstances, the insurers would not be funding the claimant’s claim going forward, which, in turn, meant that if the claimant wanted to continue with her claim, she would need to foot her legal bill herself.[112]Continuing with the claim also meant making the respondents to incur further and significant legal costs, thus increasing the extent of the claimant’s exposure to adverse costs consequences. No wonder, the claimant decided to throw in the towel and hope for the best.[113]The fact that on the last day of the hearing, the claimant’s counsel appeared to confirm the withdrawal of the claim as a courtesy to the Tribunal, but no longer being instructed by the claimant’s solicitors, supports that scenario.[114]Furthermore, the claimant’s desperate pre-emptive attempt to fend off a costs order application by getting her counsel to prepare a letter, which was then sent by her solicitors to the respondents on 24 January 2025 (a day after she had withdrawn her claim and before any such application was made by the respondents), further supports my conclusion that the reality of the situation was that the claimant knew that the game was up, and now it was all about damage limitation.[115]Interestingly, despite stating in that letter: “In the circumstances we put you on notice that if you make the costs application, we are instructed to apply for the costs of defending the application which is plainly misconceived and an attempt to manipulate the employment tribunal process for the purpose of managing the ongoing employment relationship.” no such application was ever made by her solicitors. They came off record shortly thereafter, and the claimant was left to defend the costs application by herself, despite, again on her evidence, her solicitors holding around £20,000 of her money, which sum would have been more than sufficient to defend the application.[116]That situation on the conclusion of the claimant’s evidence, was objectively no different to how things looked at the start of the hearing. In other words, it was clear (or, at any rate, should have been clear) to the claimant and those advising her that the claimant’s case was bad and doomed to fail, because she simply did not have any credible evidence to link any of the 148 alleged mistreatments of her to any of the prohibited grounds, hence the attempt to muddy the waters with the trying to introduce in evidence the 11-page extract from the staff survey, and the intimation by the claimant’s counsel of the claimant’s willingness to do a drop-hands settlement even before the hearing had begun.[117]It is truly incredible that in those circumstances, when before the start of the hearing the respondents had indicated that they would be willing to accept the claimant’s drop-hands settlement offer, with the claimant coming back into a Band 8B role in the Safeguarding Team, with pay protection for 24 months (which based on the claimant’s statement of her intentions to retire within the next 2 years, would have taken her beyond that date), and when the claimant maintained all along that she could not possibly work with people in the Quality Team, she made a complete Uturn, insisting that the only option she was willing to consider was a return to the Quality Team role. That in and of itself was wholly unreasonable.[118]Stepping back and looking at the emerging picture, I find that after the claimant had received the respondents’ witness statements (and I will allow 3 days as reasonable time for the claimant and her legal team to review and assimilate the respondents’ witness statements) it was clear to the claimant and her legal team (or at any rate - it should have been clear to them), that her case had no reasonable prospect of success, that is because her evidence was insufficient to establish a prima facie case on any of the allegations she was advancing, and, in any event, the respondents had very clear, cogent and convincing answers to all these allegations.[119]I also find that continuing to pursue the claim after that point in time was unreasonable and indeed vexatious conduct by the claimant.[120]In other words, from that moment the claimant and her legal team knew (or at any rate, it should have been reasonably apparent to them), that the claim was bad and doomed to fail, and in continuing to pursue it they would be putting the respondents at further inconvenience and costs out of all proportion to what the claimant could have realistically expected to gain from her claim. Realistically speaking, the drop-hands settlement deal that was offered to the claimant by the respondents before the start of the hearing was the best outcome she and her advisers could have hoped for. In those circumstances, carrying on with the claim regardless was, in my judgment, unreasonable and vexatious.[121]I, therefore, find that on the facts of this case the costs jurisdiction of the Tribunal is engaged on all the grounds advanced by the respondents. Discretionary decision[122]The next question is whether I should exercise my discretion and make a costs order against the claimant. In doing so, I must look at the nature, gravity and effect of the claimant’s unreasonable and vexatious conduct, taking into account all the relevant circumstances of the case.[123]I find that it will be just and proper for me to exercise my discretion and make a costs award against the claimant. My findings and conclusions on the “threshold conduct” question equally speak volume as to the nature, gravity and effect of the claimant’s conduct.[124]In simple terms, it is the case where the claimant knowingly and deliberately continued to pursue her claim when, following the exchange of witness statements, it was or should have been obvious to her and her legal advisers that it was doomed to fail. Despite of that she took it all the way to the conclusion of her evidence, just to then throw in the towel without even trying to challenge the respondents’ case. Considering how expansive the claim was, the claimant and her advisers would have known that to defend it the respondents would have had to commit a great deal of management time and incur substantial legal costs. The defence of the claim would significantly inconvenience and disrupt many people from their day jobs. It would put extra strain on the R1’s limited resources.[125]Furthermore, the claimant was given the golden opportunity to gracefully walk away for her precarious litigation position and get essentially what she wanted all along (see paragraph 117 above). In those circumstances, the respondents extending that opportunity to her was, in my view, extremely generous. She turned it down, when it would have been obvious to her (with the benefit of legal advice she was receiving) that she could not achieve a better outcome in pursuing her claim further.[126]In short, I cannot think of a more obvious example when it will be just and proper for the Tribunal to exercise its costs jurisdiction.[127]I will briefly deal with the specific arguments advanced by the claimant, as to why I should not make a costs order, starting with no costs warning being given to her. Whilst I accept that it is a relevant factor, on the facts on this case, I agree with the R1’s submissions that it would have made little, if any, effect on the claimant.[128]I reject the claimant’s evidence that if a costs warning had been given to her, she would have withdrawn her claim earlier. She was not prepared to accept the drop-hands settlement offer (with her returning to 8B role in the Safeguarding Team), when (on own her evidence) she understood “drop-hands” as meaning that the respondents would not be seeking costs against her.[129]The claimant was advised by a firm of solicitors and an experienced employment law barrister. I reject the claimant’s evidence that she was not warned by them about possible adverse costs consequences for her. In any event, even if that were true, that would be a matter between the claimant and her lawyers, and the respondents could not be expected to answer for any incorrect or incomplete advice provided to the claimant by her lawyers or to bear adverse consequences of that.[130]This equally applies to all other matters, for which the claimant now appears to be blaming her legal team. If the claimant was incorrectly advised about the strength of her claim, it is a matter between her and her professional advisers. I make no findings on that. As I have said earlier, I found the claimant’s evidence on her discussions with her lawyers unsatisfactory and unreliable. In any event, incorrect or incomplete legal advice does not make the claimant immune from a costs order.[131]I have already dealt with my findings and conclusions on the without prejudice discussions between the parties. I see nothing heavy-handed or otherwise improper in the respondents’ conduct in that regard. On the contrary, as I have said earlier, I find that in those circumstances the claimant’s decision to turn down the respondents’ generous settlement offer was unreasonable.[132]As to the respondents’ turning down the claimant’s without prejudice offer of 24 July 2024, it is hard to imagine how in those circumstances any sensible litigant would have been prepared to entertain that offer. The claimant’s settlement offer included the claimant’s demands to be promoted to a higher-grade role, a new job to be found for her elsewhere in the R1’s organisation, and for a payment of £300,000 in compensation. In return the claimant was offering to drop her claim, which on any sensible view was worth a nuisance value at best. The respondents’ solicitors responded to that offer, explaining to the claimant’s solicitors why the claimant’s demands were unreasonable and unacceptable.[133]I do not accept that the fact that the respondents did not seek to a strike out the claim or a deposit order militates against a costs order. I accept the R1’s submissions that it is very difficult to convince employment tribunals to strike out or make a deposit order with respect to the entire claim involving numerous allegations of discrimination and whistleblowing detriments. Such cases are almost invariably fact sensitive. Employment tribunals would be rightly reluctant to decide such cases summarily without hearing and seeing all the relevant evidence, except in the most obvious cases (see Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL and Ezsias v North Glamorgan NHS Trust 2007 ICR 1126, CA).[134]Furthermore, the claimant’s case was so far-reaching and unwieldy, and the allegations were so intertwined that it would have been a wholly disproportionate and most likely futile exercise to try to disentangle all that into some discrete parts and then consider whether such parts have no or little reasonable prospect of success. Besides, the claimant’s case was that the entire R1’s organisation was permeated by the culture of discrimination, which, no doubt would have been her answer as to why no proper merit-based determination of such discrete parts was possible on a strike out basis until all the evidence were heard by the Tribunal.[135]Therefore, in the circumstances, it was immensely reasonable for the respondents not to pursue any such applications, thus avoiding incurring further costs in the already very expensive litigation.[136]The claimant’s argument that the merits of a discrimination case cannot be fully determined until the conclusion of the evidence, which has not happened in this case (in reliance on Timbo v Greenwich Council for Racial Equality UKEAT/0160/12/SM) is misconceived.[137]For the reasons explained above, from the moment the claimant received and had time to consider the respondents’ witness statements, it was apparent that her claim had no reasonable prospect of success, and it was unreasonable and vexatious for her to continue to pursue it further.[138]The fact that there was no formal determination by the Tribunal, dismissing the claimant’s claim on its merits cannot be a trump card defeating a cost application. Otherwise, it would be open to claimants to bring all kinds of frivolous and vexatious claims, take them all the way to just before judgment, and when faced with the inevitable outcome, simply withdraw the claim and suffer not adverse costs consequences. That would make the whole Tribunal system open to abuse by unscrupulous litigants. I also agree with the R1’s submissions that Timbo is not on point here.[139]Furthermore, in the second EAT case the claimant specifically relies upon (Madu v Loughborough College) HHJ Tayler said (at [21]) that despite the difficulties claimants in discrimination claims face in establishing prohibited reasons for the treatment before “the explanation of the employer’s conduct which is the subject of complaint is heard, seen and tested”, litigants in person (and I pause here to remind that at the material time the claimant was advised by a firm of solicitors and leading counsel) bringing complaints of discrimination are not immune from costs orders.[140]With respect to the claimant’s submissions that her claims were allowed by the Tribunal to proceed to the final hearing, and at no stage an employment judge told her that her claim had no or little reasonable prospect of success. Firstly, it is not for employment judges to give parties legal advice. They cannot do that. At the material time the claimant had legal advisers advising her on merits of her claim. At the two preliminary hearings, the claimant refers to, employment judges were dealing with clarifying the claim and response and case management. They were not conducting any merit-based assessment of her claim. They heard no evidence or submissions. It would have been improper for them to give their impromptu views as to the strengths and weaknesses of the claim.[141]Furthermore, whilst the Tribunal may exercise its strike out and deposit order powers on its own initiative, in practice it is rarely done. Such matters are typically considered by the Tribunal upon an application by a party to the proceedings. In any event, for the reasons explained earlier, it would have been a disproportionate and futile exercise.[142]With respect to the claimant having the right to bring claims to the Tribunal and have them heard; no one denied the claimant that right. However, in the exercise of that right, the claimant must abide by the relevant rules, which say that if she decides to bring a claim that has no reasonable prospect of success or to act in an unreasonable or vexatious manner, she may face adverse costs consequences for that, which is precisely what has happened in this case.[143]Finally, the claimant’s submission about the alleged continuing discrimination, harassment and victimisation by the respondents is without merit. Firstly, in deciding the application I am concerned with the claimant’s claim and her conduct of these proceedings, and not what happened after she had withdrawn her claim. In any event, to the extent such subsequent events could be relevant in the exercise of my discretion, no findings of any such alleged mistreatment of the claimant were ever made by any tribunal. As far as I know, no further claim has been brought by the claimant against the respondents. The quantum decision[144]The next question is how much the award should be.[145]Again, regrettably, the claimant’s evidence as to her means (which I have decided to take into account) was patchy at best.[146]The claimant, however, said that she together with her husband own a mortgage-free six-bedroom house, where they live. They own another flat, which they rent out, yielding income of over £8,500 a year. Her current salary is £85,600 (gross) per annum. Her husband, although retired, still works 4 days a week as a psychiatrist. He also draws some pension. She did not give further details of his earnings.[147]The claimant also said that she expects a refund of about £20,000 from her solicitors, she had paid on account.[148]She has some debts to her family members of about £11,500.[149]The respondents’ indicative costs schedule adds up the entire costs from the inception of the case to £135,945.91, of which £49,000 is counsel’s fees.[150]Considering my finding that the claimant’s case had not reasonable prospect of success and it was unreasonable and vexatious for the claimant to continue to pursue it from the third day following the date of the exchange of witness statements6, I estimate that the R1’s total legal bill from that date onwards would be between £60,000 and £80,000.[151]Accordingly, I conclude that it is just and equitable to order that the claimant pays R1 its legal costs incurred from the third day following the date of the exchange of witness statements, to be assessed on the standard basis, if not agreed, capped at £80,000.[152]I paused to consider whether the assessment should be made on the indemnity basis but decided against that. In a recent EAT case of Dowding v The Character Group plc 2024 EAT 153, the EAT confirmed that employment tribunals have the power to direct that a costs assessment be carried out on the indemnity basis. However, the EAT also said (at [158]) that in employment tribunals (as contrasted with the civil courts) a higher bar must be surpassed for assessment on the indemnity basis also to be warranted.[153]The EAT confirmed the approach in Howman v The Queen Elizabeth Hospital UKEAT/0509/12, where the EAT said (at [10]): "So when should an assessment on the indemnity basis be ordered? In civil proceedings in the courts, costs will be assessed on the indemnity basis rather than the standard basis where the conduct of the party has taken the situation away from the norm. The norm in civil proceedings in the courts has been that the unsuccessful party would be ordered to pay the costs of the successful party. That is to be contrasted with proceedings in employment tribunals where it is only in the particular circumstances identified in rule 40(3) that a party will be ordered to pay the other party's costs. In our view, therefore, costs incurred in proceedings in employment tribunals should only be assessed on the indemnity rather than the standard basis when the conduct of the paying party has taken the situation away from even that very limited number of cases in the employment tribunal where it is appropriate to make orders for costs. …" (my emphasis)[154]In my judgment, whilst, as I have found, the claimant’s conduct undoubtedly crossed the threshold justifying a costs award, I do not find that it was so grave or egregious to justify that it should be assessed on the indemnity basis.[155]I, therefore, order that the claimant pays to R1 legal costs incurred by R1 in defending the claim from the third day following the date of the exchange of witness statements, to be assessed by the Tribunal on the standard basis, if not agreed, capped at £80,000. 6 I do not know the exact date when witness statements had been exchanged, but I estimate it to be on or around 15 December 2024.[156]The parties are encouraged to engage in discussions with the view to agree the total costs figure and a payment plan.