Ms F Namukwaya v Premier Inn Ltd and Whitbread Group plc: 2300823/2023
JUDGMENT
The claimant must pay the respondent £5,479 + VAT as a contribution to its legal costs. The total amount which the claimant must pay the respondent is £6,574.80. Employment Judge Fredericks-Bowyer Dated: 25 October 2024 06/11/2024 1 of 2 Case Number: 2300823/2023 O. Miranda NOTES:[1]Oral judgment was given at the hearing. Written reasons will not be provided unless requested at the hearing or a request is made in writing by a party within 14 days of the sending of this document.[2]Where written reasons are produced, they will be published in their entirety on the public Employment Tribunal decisions website here: Employment tribunal decisions - GOV.UK (www.gov.uk). 2 of 2REASONS
[1]The claimant requests written reasons for the costs judgment and reasons given orally at the conclusion of the costs hearing on 25 October 2024. I made an order for the claimant to pay a contribution to the respondent’s costs in the sum of £6,574.80 (£5,479 + VAT).[2]These reasons should be read in conjunction with the written reasons provided in respect of my oral judgment which struck out all of the claimant’s claims on 20 September 2024. The contents of that judgment is plainly relevant to the making of this decision, and the reasons for it, but I do not repeat what is written there and which can be seen in its original form.The hearing
[3]This hearing took place in Tribunal time which would have been used as the final afternoon of the final hearing for the claim which was vacated when the claims were struck out.[4]The claimant has lodged an appeal notice with the Employment Appeal Tribunal in respect of my decision to strike out all of the claim. This led to an application to postpone this hearing, which was refused on the papers by Regional Employment Judge Khalil. 1 of 5[5]At the beginning of the hearing, it emerged that the parties had still not received the written reasons for the strike out decision. These were sent during the course of the hearing. Neither party applied to postpone the hearing in the absence of written reasons. The respondent must have had a careful note of my judgment because the costs application accurately reflected my key findings. The respondent produced a bundle of documents which ran to 60 pages.[6]The claimant chose not to participate in this hearing. She attended, and the whole hearing was translated for her benefit. When I asked her if she was content to proceed with the hearing, she told me that she was exercising a right to silence in respect of the hearing in protest at the strike out decision I had made and the decision to refuse to postpone the hearing made by REJ Khalil.[7]I explained to the claimant that it was in her interests to take part in the hearing. I explained that, if her appeal is unsuccessful, then she may regret not taking part in this hearing. I explained that the award of costs is a discretionary exercise and so, if she said nothing to persuade me to not exercise discretion, there is a risk that she could be fixed with a costs judgment which could be avoided and that she would struggle to appeal when she had made no arguments in the hearing.[8]The claimant repeatedly declined to participate each time I invited her views in the hearing, which were at the following junctures:- 8.1. To comment on the application; 8.2. To make submissions to resist the application; and 8.3. To give any evidence or information about her financial means. The application[9]The respondent applied for a costs order by e-mail on the afternoon of 20 September 2024. That e-mail was at pages 37 to 38 of the bundle. The respondent also relied on a costs warning letter sent to the claimant on 1 July 2024, which was at pages 39 to 47.[10]The claim had been struck out for having no reasonable prospects of success. The respondent also submitted that the claims were unreasonably pursued. In essence, the respondent submitted that my strike out judgment mirrored the points made to the claimant in the costs warning letter, and that the claimant had been told of all of the evidential deficiencies in her claim on 1 July 2024, but had unreasonably chosen to continue with the litigation, which had caused the respondent costs.[11]The respondent urged me to exercise my discretion where the claims were so bound to fail, but the claimant had pressed on to hearing, where all of the claims were comprehensively struck out because the evidence in chief supplied by the claimant simply did not support the claims made. Costs in the Employment Tribunal 2 of 5[12]The general rule is that the Employment Tribunal is a ‘costs neutral jurisdiction’. This means that the loser in proceedings does not automatically pay the winner’s costs, which is a divergence from proceedings which run in most of the civil court jurisdictions.[13]The rules relating to costs are found under Rule 76 Employment Tribunal Rules of Procedure (2013):- “76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, 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) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success;(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.”[14]It is, therefore, a multi-stage determination to awarding costs. First, at least one of the ‘gateways’ outlined by Rule 76(1) and Rule 76(2) needs to be found to have been opened. In other words, I must be satisfied in this case that we have the ability to award costs.[15]If one of the gateways to award costs is opened, then I may award costs. There is a discretion. The next stage, therefore, is to decide whether or not this is a case in which I exercise my discretion to award costs, having in mind the circumstances of the case and the nature of the conduct that has led to the ability to award costs if decided appropriate (Hossaini v EDS Recruitment Ltd [2020] ICR 491).[16]The final stage, if I decide to exercise discretion, is to decide the amount of the costs to award. Where evidence about a claimant’s means is provided, this should be taken into account so long as I am satisfied I have an honest and full picture of the claimant’s financial position. I must also consider the amount of costs requested in the application and decide whether or not the amount is appropriate, before deciding what amount should be paid towards those costs, or ordering that the whole of the costs are paid.[17]The assessment of the amount of costs to pay is a broad brush exercise and does not take the form of any sort of detailed assessment of cost. The assessment is made broadly in all the circumstances using our judgment of what would be reasonable in this case. Generally, I am trying to consider the proportion of costs incurred because of the criticised conduct.[18]Unreasonable conduct can include an “unreasonably distorted perception of matters” even where that perception is honestly held (Brooks v Nottingham University Hospitals NHS trust UKEAT/246/18/JOJ). In those situations, I may award costs but it is not an obligation or an automatic result (Kopel v Safeway Stores Limited [2003] IRLR 753). 3 of 5Discussion and Conclusions
[19]The claimant had resisted the making of the costs award in writing, when applying to postpone the hearing. The basis of the objection was that the decision was wrong, and is the subject of an appeal. In my view, these are not submissions that would persuade me. If my decision was wrong, then it (and this costs award) can be corrected on appeal. Nothing in the correspondence I have seen has led me to reconsider my earlier strike out judgment. Submitting that I was wrong there does not assist in submissions for this hearing. This means that the claimant chose to make no submissions in an effort to dissuade me from exercising my discretion.[20]I have the power to award costs as a result of my earlier finding that the claimant’s claims had no reasonable prospects of success. This is one of the gateways that gives me the ability to exercise my discretion. What I did not know then was that the respondent had sent the claimant the costs warning letter on 1 July 2024 which set out in precise terms the reasons why the claims were bound to fail. That analysis was entirely correct and accurate, and the claims were stuck out for the same reasons as those posited in the letter.[21]Instead of considering the matter carefully and seeking advice (paid or pro-bono) about the matters put in the costs warning letter, the claimant simply rejected the terms of the costs warning letter (to drop hands), and therefore required the respondent to incur costs dealing with witness evidence. In my view, the claimant ought to have taken stock and taken advice. The deficiencies in her claim were clear from the evidence she had available, which she advanced in the strike out hearing. In my judgment, this was unreasonable conduct. Her belligerent view that her claims would succeed (which she still appears to cling to) was unreasonable in the face of considered and detailed argument to the opposite. The costs warning letter is a model in clarity, and reads far more like a letter of advice to a client than it does as a tool in litigation. The claimant was unreasonable in dismissing it. This gives rise to a further gateway to award costs.[22]Should I exercise my discretion to award costs? The respondent says that I should, because of how poorly the claimant’s evidence evidenced her claims, and in light of the unreasonable treatment of the costs warning letter and other correspondence from the respondent (including its application to strike out the claim). As outlined above, the claimant offered no submissions to persuade me to not exercise my discretion.[23]I am conscious that costs are an exception in the Employment Tribunal. I am not a Judge who is quick to award costs, and I am generally reluctant to do so. In this case, I have been struck by how poorly the evidence in chief went to support the claims being brought. Despite the opportunity to conduct research and take (even free) advice, and despite the respondent advisers’ patient approach in explaining the law and deficiencies in the case, the claimant continued to pursue her claims in a manner which I have found to be unreasonable. In the strike out hearing, the claimant and her adviser could not articulate any argument which established causation between the matters required to make out the claims. It seems to me that what was required to prove the claim simply had not been thought about.[24]The ‘no costs’ jurisdiction is not to be seen as a defence to the driving up of respondent costs in a manner which is unreasonable. It is not a reason to continue to advance claims which, on any view, have no reasonable prospects of success. In these circumstances, given all of the reasons for the strike out and the observations in this judgment, I exercise my discretion to award costs. 4 of 5[25]The respondent sensibly limits the amount sought to the costs incurred since the 1 July 2024 costs warning letter. I am satisfied that the respondent has incurred multiple times that amount. I consider it appropriate to award the amount requested in the hearing which, including VAT, is £6,574.80.[26]I am unable to take the claimant’s means into account because she refused to tell me about her means in the hearing. This is unfortunate, as if the claimant had been able to evidence an inability to pay, it is likely that I would have awarded a significantly reduced amount. Without that, I am bound to award the full amount I consider reasonable. That is what I do.