Dr V Lyfar Cisse v Brighton and Sussex University Hospitals NHS Trust and Ms Henrietta Hill QC: 2302458/2015
JUDGMENT
The judgment of the Tribunal is that the Claimant is ordered to pay to each Respondent the whole of their costs incurred after 9th February 2016 such costs to be assessed by a detailed assessment in the County Court on the standard basis. For the avoidance of doubt the £1,000 already paid by the Claimant by way of a deposit shall be paid to the Second Respondent and shall count towards the settlement of the order for costs. .REASONS
[1]This was a hearing to consider the application for costs made by both Respondents following the judgment of this Tribunal sent to the parties on 27th July 2017 in which the Claimant’s claims of direct race discrimination and victimisation were dismissed. Both Respondents seek costs in excess of £20,000 and recognise that, if they are successful in the application for a costs order, there would need to be a detailed assessment process conducted by either the Employment Tribunal or a County Court.[2]The Tribunal had written applications from each Respondent and a written response from the Claimant. In addition we had the benefit of submissions from all the parties at today’s hearing. History of the claim[3]As we set out in paragraph 1 of the liability Judgment, this claim concerned a grievance investigation report (the Report) carried out by the Second Respondent, Ms Henrietta Hill QC, which the Claimant alleged was so unreasonable as to be “perverse, a racially discriminatory whitewash” and victimisation. That claim was brought against the Second Respondent under section 110(1) of the Equality Act 2010 as agent and against the First Respondent under section 109(2) as principal.[4]The First Respondent was, at the time that the claim was lodged, the Claimant’s employer. The Second Respondent is a barrister practising at the independent bar who was engaged by the First Respondent to undertake an independent investigation into 9 linked grievances brought by a Ms Burns against the Claimant, by the Claimant against Ms Burns and others at the First Respondent and a collective grievance. The case before us concerned the Second Respondent’s conclusions in relation to the first three grievances all brought by Ms Burns against the Claimant..[5]The Claimant presented her claim on 11th August 2015 and was represented from the outset by solicitors. The Claimant amended her particulars of claim on 29th September 2015 and then submitted “re-amended particulars of claim” on 9th December 2015.[6]On 15th December 2015 there was an open preliminary hearing, at which the Claimant was represented by counsel, to consider whether the claim against the Second Respondent should be struck out on the grounds that it had no reasonable prospect of success or whether the Claimant should be required to pay a deposit as a condition of continuing with her claim against the Second Respondent.[7]In a reserved judgment sent to the parties on 9th February 2016 Employment Judge Freer decided not to strike out the Claimant’s claims against the Second Respondent. However he considered that her claims had little reasonable prospect of success and ordered the Claimant to pay a deposit of £1,000 as a condition of being permitted to advance her claims of direct race discrimination and victimisation as against the Second Respondent. The basis upon which Employment Judge Freer made his deposit order was set out at paragraphs 41 and 42 of his reasons. “In my view the Claimant has little reasonable prospect of success. Having regard to the text of the Report, as highlighted above, it is my conclusion that the Claimant appears to have material difficulties in showing the Report was as one-sided as she alleges and is not simply a case of her disagreeing with particular aspects of it. She also has material difficulties in demonstrating that there is no explanation for the analysis and conclusions drawn in the Report sufficient to make any unreasonable conduct on its own give rise to unlawful discrimination”. At paragraph 42.… “I conclude that the Claimant has little reasonable prospect of success in demonstrating that the content or conclusions of the Report amount to direct race discrimination or victimisation.”[8]In his order Employment Judge Freer said this “It will be obvious to those advising the parties, that it is not the sum of money payable under the deposit order that is of principal importance, it is the potential consequence at the full hearing that is more relevant. If the Claimant elects to pay the deposit and loses her claim on the grounds identified, the Employment Tribunal must consider whether or not to make a costs award in favour of the Respondent and in so doing the Claimant shall be treated as having acted unreasonably in pursuing that allegation/argument for the purpose of costs unless the contrary is shown. If as a result of that consideration a costs award is made, this may be a potentially large sum and almost certainly will exceed the £1,000 payable in respect of the deposit.”[9]Solicitors for the First Respondent sent a costs warning letter to the Claimant on 17th February 2016 and solicitors for the Second Respondent sent their costs warning letter on 22nd February 2016. Both letters offered to drop the issue of costs if the allegations were withdrawn but warned the Claimant that full costs would be pursued if she persisted in bringing the case to trial.[10]The Claimant paid the deposit and the case was heard before us over 4 days in May 2017. Throughout the proceedings the Claimant was represented by solicitors and had the benefit of experienced employment Counsel at both the deposit hearing and the full merits hearing. She appears before us in person today.[11]At the full merits hearing the Claimant’s case was that the Second Respondent’s Report was so unreasonable that the only inference to be drawn from it was that it amounted to less favourable treatment because of the Claimant’s race and or unfavourable treatment because she had brought earlier grievances/engaged in Tribunal litigation. Counsel for the Respondents elected not to cross examine the Claimant having taken the view that there was nothing in her evidence in chief which required challenging or which supported her case of race discrimination and victimisation[12]The Tribunal found that the Report was not unreasonable, that the Second Respondent undertook a careful and conscientious enquiry into the matters before her and that it was a thorough and fair-minded report. The Claimant’s challenge to the report was summarised in paragraph 61 of our judgment but we rejected those challenges. There was no evidence to suggest that the report was unreasonable and no evidence to support an inference of less favourable treatment because of race or victimisation.[13]In summary the Tribunal decided against the Claimant for substantially the same reasons as were given in the deposit order.The law
[14]Rule 39(5) of the Employment Tribunal Rules of Procedure 2013 provides: “If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation argument for the purpose of rule 76, unless the contrary is shown…”..[15]Rule 76 of the Employment Tribunal Rules of Procedure provides that “A Tribunal may make a costs 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 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; or…”[16]Rule 78 provides that (1) A costs order may- (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; or, in Scotland, ...or by an Employment Judge applying the same principles; (c) order the paying party to pay the receiving party a specified amount as reimbursement of all or part of a Tribunal fee paid by the receiving party;[17]As set out above where a deposit has been paid a party is treated as having acted unreasonably in bringing the proceedings for the purposes of rule 76. It is therefore for the Claimant to show that she has not acted unreasonably.[18]If the Tribunal considers that the circumstances set out in rule 76(1) apply then it may (but does not have to) make a costs order against that party if it considers it is appropriate to do so.[19]If a Tribunal decides to make a costs order then Rule 78 of the ET Rules of Procedure provides that the Tribunal may either(a) specify a sum (not exceeding £20,000) which the paying party must pay to the receiving party or(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party to be assessed either by the Employment Tribunal or by the County Court in accordance with the civil procedure rules 1998.[20]It is well-known that in the Employment Tribunal costs do not routinely follow the event. This is ordinarily a cost free jurisdiction and something special or exceptional is required before a costs order will be made, in whole or in part. However, given the terms of rule 39, a deposit order is a red flag to any party wishing to continue with their claim. It puts that party on notice that the Tribunal considers that the claim is a weak one and that careful consideration should be given to assessing the strengths or weaknesses of the case. The purpose of the deposit order was to “identify at an early stage claims with little prospect of success, to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs if the claim fails.” (Hemdan v Ismail UKEAT/0021/16) Basis of the application for costs[21]Unsurprisingly, given the deposit order and its terms, the Respondents rely on both section 76(1)(a) namely unreasonable conduct by the Claimant in bringing or pursuing the claims and section 76(1)(b) that the claims had no reasonable prospect of success.[22]Mr Sethi for the Second Respondent submits that the Claimant is an experienced litigant having pursued a number of previous ET claims and was represented throughout by specialist employment solicitors and counsel. He notes that extremely serious allegations of unlawful discrimination were made and pursued to trial in circumstances where the alleged discriminator was a barrister in private practice who had never met the Claimant. The Second Respondent is a barrister who specialises in equality and human rights and who acted very predominantly for Claimants rather than Respondents. As a result of these proceedings she was prevented from sitting in judicial office (she holds two part-time judicial posts) and the allegations were potentially career ending for her.[23]Mr Sethi further submits that the Claimant had persisted in pursuing her claim against the Second Respondent personally, despite the First Respondent accepting full liability for her actions, and that this served to duplicate costs. He submits that at trial the Claimant’s allegations were advanced without a shred of supporting evidence in chief as a result of which he did not need to cross examine the Claimant.[24]Mr Sethi also makes submissions about the way that the proceedings were conducted and submits that the Claimant acted unreasonably in refusing to agree a list of issues with the Respondent and causing additional costs and an unnecessary further preliminary hearing before EJ Martin.[25]Mr Kipling for the First Respondent adopts and repeats the arguments made by Mr Sethi. He also submits that the very serious allegations made by the Claimant were made without any evidential basis against a QC specialising in employment discrimination law without connection to the First Respondent. Claimant’s response[26]In her submissions the Claimant spent some time submitting to the Tribunal that the deposit order made by Employment Judge Freer was not valid. The basis of that submission is that the order made (following a hearing on the 15th December 2015 and sent to the parties on 9th February 2016) was incorrectly dated. The typed date appearing below the signature of EJ Freer was 4th February 2015. The Claimant wrote to the Tribunal about this on 4th September 2017 saying she believed that it this was a “judicial error and invalidated the Deposit order”. Employment Judge Freer responded to that letter on 18th September stating that the order remained valid and effective, that in any event there was no requirement under the ET Rules of Procedure for the judge to date his or her signature on a judgment or order. Rule 61 only requires that the written record is signed. The relevant dates for the purpose of the order (the date of the hearing and the date by which the deposit had to be paid) were accurately recorded.[27]Despite the vigour with which this point has been pursued it is a point which goes nowhere. The Claimant says that EJ Freer’s letter of 18th September 2107 “does not address the validity of the Deposit Order Judgment” but it plainly does. His letter states in terms that “The judgment and order remain valid and effective”. We agree that the typographical error does not invalidate the order. The Claimant understood what needed to be done and paid the deposit. The issue was not raised for more than a year and half after the deposit order was sent to the parties[28]It is also the Claimant’s submission that when the deposit order was made neither the Second Respondent nor the Tribunal had a clear understanding of the claim being pursued by the Claimant as, at that time, there was no agreed list of issues.[29]The chronology shows that at the time of the preliminary hearing before EJ Freer at which the deposit order was made there was no list of issues. However the claim being made was clear from the Claimant’s re-amended particulars of claim. It is apparent from the deposit order that EJ Freer’s understanding of the claim was the same as ours -- namely that the Second Respondent, Ms Hill QC, in the content and outcome of the Report, had treated the Claimant less favourably because of her race and had victimised her. The First Respondent was also liable for the actions of Ms Hill as she was acting as their agent. The final list of issues used in the hearing reflected those re-amended particulars of claim[30]In response to the Respondent’s complaints about the Claimant’s conduct and her failure to agree a list of issues the Claimant says that the Respondents (and the Tribunal) attempted to force a list of issues upon her, that it was not for the Respondent to draft the list of issues, as it was her claim and for her to do. We accept that the Claimant has primary responsibility for setting out the issues but the difficulty was that her solicitors had failed to do this and the Respondents sought clarity.[31]The Claimant also complains that the Respondents “concealed their intentions” to complain about her conduct until after the liability hearing had concluded. That assertion is factually incorrect as we have been taken to a further costs warning sent by solicitors acting for the Second Respondent dated 25th November 2016 in which those solicitors inform the Claimant’s solicitors that they consider that the Claimant’s approach to agreeing the list of issues amounted to unreasonable conduct.[32]The Claimant also considers that she did not have a fair hearing and suggests that there has been an appearance of bias because one of the fee paid Employment Judges who sits in this region (EJ Williams) is in the same set of chambers as the Second Respondent.[33]We do not accept the contention that the fact that another employment judge in this region (who has had no connection with this case) was in chambers with the Second Respondent creates an appearance of bias. Secondly this fact has come to the Claimant’s attention because the Second Respondent’s solicitors wrote the Tribunal on 18th October 2016 (well over a year ago) to inform the Tribunal of the connection between EJ Williams and the Second Respondent and to suggest that she be excluded from dealing with this case. That letter was copied to the Claimant’s solicitors and no application was made by her solicitors in response to that. The Claimant says that her solicitors did not inform her and that may be the case, but that is between her and her solicitors.[34]The Claimant also submits that there should be no award of costs in favour of the First Respondent because the “case management requirements determined and recorded that the case proceed against the Second Respondent only”, that the tribunal made no findings against the First Respondent and their “limited participation must be out of choice” In support of this contention she refers to an extract from the rule 3(10) judgment of HHJ Tucker who said that this was an issue “which the Claimant can legitimately raise before the Tribunal if she is to face any application for costs.”[35]Unfortunately this submission appears to be based on a misunderstanding of the position. It was not the case that the “case management requirements determined and recorded that the claim proceed against the Second Respondent only”. The Claimant had brought her claim against 2 Respondents as she was entitled to do. Although her challenge was to the actions and motivation of the Second Respondent, as a matter of law the First Respondent was legally liable for any actions by the Second Respondent which the Tribunal found to be unlawful. Had the Claimant been successful she could have pursued her award for damages against either of them. Both had a legitimate interest in defending the claims. As to the extent to which there was any unreasonable duplication of time or effort this is a matter which can be assessed by the County Court when the detailed assessment is done.Conclusions
[36]In the Employment Tribunal costs do not necessarily follow cause and something exceptional is needed before an award of costs is made.[37]The Tribunal first has to consider whether it has the power to award costs – are the circumstances in rule 76 satisfied. If they are then the Tribunal must exercise its discretion as to whether or not it is appropriate to make a costs order and in doing so it may (but does not have to) take into account the paying party’s ability to pay.[38]As we have said the Tribunal decided the case against the Claimant for substantially the reasons as were set out in the deposit order. In such a case the Claimant is to be treated as having acted unreasonably (Rule 39(5) unless the Claimant can show otherwise. The Claimant has not shown “otherwise”.[39]We then considered whether to exercise our discretion to award costs in favour of the First and/or Second Respondent. We have decided that it would be appropriate to make an award of costs in favour of both Respondents.[40]Once the deposit order had been made by Employment Judge Freer the Claimant was on clear notice that the Employment Tribunal considered her case to be weak. EJ Freer had read the Second Respondent’s Report, about which complaint was made, and considered that it would be very difficult for the Claimant to show that the Report was so unreasonable as to lead to an inference of race discrimination and victimisation. The consequences in costs were also spelled out in the deposit order and in the standard Guidance Notes which accompany the order. The Claimant had the benefit of solicitors and would have been in no doubt as to the potential cost consequences.[41]At that stage a reasonable litigant should have taken a step back to consider what evidence might be needed to support their claims. In the reasons for his deposit order EJ Freer explained that it would be not enough to show that there was a difference in treatment and that there needed to be “something more”.[42]The Claimant’s case was that the Second Respondent’s investigation was “incompetent to such a degree that the Tribunal should draw an inference of less favourable treatment because of her race” and victimisation and that the report was “incompetent/bias/racist and a whitewash.” These were strong words.[43]The Tribunal recognises that direct evidence of discrimination is rarely available and that a claimant in a discrimination case will often be relying on matters from which a tribunal can legitimately draw an inference. Nevertheless in this case, the Claimant has pursued her claim based on alleged failures to investigate in circumstances where she had not participated in the investigation, had never met the Second Respondent and had no evidence at all from which the Tribunal might infer that the Second Respondent might be biased. The Claimant was not deterred by the fact that the Second Respondent was independent of the First Respondent, had not been instructed by them before, and had built her career acting for claimants in discrimination cases. EJ Freer had read the Report and concluded that she might have difficulty “demonstrating that there is no explanation for the analysis and conclusions drawn in the Report sufficient to make any unreasonable conduct on its own give rise to unlawful discrimination”. On its face the Report set out clearly the reasons for the conclusions reached and the evidence on which those conclusions were based.[44]At the final hearing no evidence was presented to support any inference of race discrimination or bias. We concluded that there was no unreasonable conduct at all, let alone conduct sufficiently unreasonable to warrant a finding of discrimination or victimisation. No other evidence was presented from which any inference could be drawn. The Claimant clearly did not agree with the conclusions and was upset by the Second Respondent’s finding that there was case to answer against her, but there needed to be more than that if the Claimant was to succeed in a claim of race discrimination and victimisation.[45]The Claimant was not an unrepresented litigant who could be forgiven for lacking the objectivity of law and practice that a professional adviser will or ought to bring to bear. She had the benefit of advice. Moreover she is herself an intelligent, experienced professional who knew what she was doing. She also would or should have been aware of the legal and emotional costs that the litigation would cause to all those involved. It was unreasonable in the face of these obstacles to pursue the litigation after the deposit order had been made.[46]We also record our conclusion that the claim was misconceived from the outset, so that even had no deposit order been made, the Tribunal would have had power to award costs. However, the fact of the deposit order is also relevant to the exercise of our discretion at the second stage.[47]In considering whether or not to awards costs an employment tribunal may, but does not have to, have regard to the paying party’s ability to pay. At this hearing the Claimant made no submissions as to her means and we had very little evidence of the Claimant’s ability to pay. The Claimant is a professional and has an MBA. On enquiry by the tribunal she told us that she was earning £96,000 per annum until just before her dismissal (when she had had a pay rise) and that she owns her property albeit with a mortgage (although she did not volunteer the amount of the mortgage). Although she has now been dismissed and is out of work she has the skills to continue to earn a reasonable income in the future. (The Claimant also told us that she had been successful in a case in the Southampton Employment Tribunal and was awaiting a remedy hearing so that she may obtain an award in respect of that claim.) Against that we have to consider that the Respondents were unreasonably required to incur costs in defending a misconceived claim and that for the Second Respondent in particular her career, reputation and livelihood were at stake. Insofar as we have considered her ability to pay we consider that her means was not a reason not to make an award of costs and to that extent the Claimant’s means were a neutral factor. Although this award is likely to be substantial, until there has been a detailed assessment the exact amount of any costs award is not known. If the Claimant is unable to meet the award the County Court may require payment by instalments and will be able to take into account the Claimant’s ability to pay at the enforcement stage.[48]Given the existence of the Deposit Order and the costs warnings, the very serious claims advanced, the fact that the Claimant had the benefit of legal advice, and the subsequent failure by the Claimant to produce any evidence to support her claims, we consider that this is a case where we should award costs. The unreasonable conduct which we rely on is pursuing the case in the face of these obstacles, causing significant stress and expense to all the parties and taking up Tribunal resources. Although the Respondents have also relied on alleged unreasonable conduct by the Claimant in failing to agree a list of issues in a timely manner, this is not a matter which we have taken into account in our decision to award costs (but may be a matter which falls to be considered during the detailed assessment of costs.)[49]Although we accept the Respondent’s submissions that the claim was misconceived from the outset we considered that it would be appropriate to award costs from the date of the deposit order, being the date upon which the Claimant was told in clear terms that she would have considerable difficulties in succeeding in this case. Given the extent of those costs (see below) we also considered whether it would be appropriate to award all of those costs (subject to assessment) or a percentage of those costs, bearing in mind that the Tribunal has power to award all or a specified part of the Respondent’s costs. However there were no factors which indicated to us that we should award less than 100% of the post deposit order costs.[50]We do not accept that this is an appropriate case for the assessment of costs on an indemnity basis as submitted by the Second Respondent.[51]In its application for costs the Second Respondent notes that its costs amount to in excess of £120,000. The First Respondent’s costs amount to £38,000. We do not know what proportion of those costs were incurred after 9th February 2016 but it is likely that this will represent the majority of the costs. These are very significant sums and for that reason, and because the Claimant herself has expressed a preference for any detailed assessment to be done by the County Court, we think it is appropriate to refer this matter for detailed assessment on the standard basis to the County Court who have more experience of dealing with such matters than the Employment Tribunal.