Mr S Maynard v Hudson Contract/Hudson CIS GU Ltd: 2302746/2023
EMPLOYMENT TRIBUNALS
Case No 2302746/2023
Between
Mr S MaynardClaimantHudson Contract/Hudson CIS GU LtdRespondent
Before
Employment Judge HeathNot represented for claimantMr E Nuttman (instructed by Solicitor) for respondentDate 26 March 2024
JUDGMENT
The claimant’s claims are struck out on the following grounds:[1]That the manner in which the proceedings have been conducted by the claimant has been unreasonable or vexatious;[2]That he has no reasonable prospect of establishing that his claim is not out of time;[3]That it has not been actively proceeded with.
REASONS
[1]This is the determination of the respondent’s applications for costs made by email dated 5 April 2024. This decision is to be read in conjunction with the Record of a Preliminary Hearing, and the Strikeout Judgment sent to the parties on 3 April 2024 concerning a hearing before me on 26 March 2024. At that hearing I struck out all of the claimant claims on the grounds[1]the manner in which proceedings had been conducted had been unreasonable or vexatious, 2) that he had no reasonable prospect of establishing that his claim is not out of time, and 3) that the claim had not been actively proceeded with.[2]Mr Nuttman, for the respondent, indicated he wished to make an application for costs. I directed him to make such an application in writing, and made orders for the claimant to set out his resistance to such an application in writing by 19 April 2024. I set out certain issues he may wish to address concerning his financial situation.[3]This is a determination on the papers. The claimant did not submit anything in writing indicating he resisted the respondent’s application. The strikeout and the application[4]By an oral decision given to the respondent on 26 March 2024, I struck out the claims as set out above. In short, I concluded, among other things: 10.1 Judgment – no hearing - rule 60 February 2018a. That the claimant had conducted a campaign of abusive and threatening messages to individuals who, although not employed by the respondent (a payroll company), would be witnesses if the matter came to a final hearing;b. The racist, abusive, aggressive and threatening nature of the messages was such as to give the recipients legitimate cause to fear for their personal safety. The potential witnesses, I found, had a well-grounded fear for their safety which affected their desire to give evidence at the hearing.c. The claimant indicated in a message that he was taking pleasure in his campaign.d. The claimant had not attended two hearings and had, effectively, not taken a single step forward in litigation since putting in his claim form.e. There was insufficient cogent information to conclude that it was just and equitable to extend time for the claimant to present out of time claims.f. The clerk of the hearing of 26 March 2024 had contacted the claimant on his non-attendance and spoken to him. He indicated that he did not know there was a hearing that day and that he would not attend as he was in hospital. This conflicted with a note on the file which indicated the claimant himself had contacted the tribunal the previous week to discuss the hearing, and that he was told that he would need to attend.[5]The respondent’s application for costs by email of 5 April 2024 largely corresponds with the findings I have set out in the previous paragraph. It also referred to having given the claimant a costs warning on 30 January 2024 which provided him with an opportunity to withdraw his claims on or before 6 February 2024 on the basis that they did not pursue him for costs.[6]The respondent limited its claim to the following:•£3,000 advocacy (fixed fee of £1,500 for each of the two Preliminary Hearings); and•£5,500 profit costs incurred in responding to the claim, compiling the 153 page bundle of documents, investigating the vexatious conduct and dealing with the strike out application based on: o £225 per hour partner rate; and o £175 per hour solicitor rate.[7]The respondent indicated it had pay records showing the claimant earned £39,142 in the financial year ending April 2022. The claimant had not 10.1 Judgment – no hearing - rule 60 February 2018 provided, despite request, earnings details from the claimant, but the respondent suggested he had significant earning potential.
The law
[8]Rule 75 ET Rules provides: (1) A costs order is an order that a party ('the paying party') make a payment to— (a) another party ('the receiving party') in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative;[9]The power to make a costs order is in Rule 76 which provides: (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;[10]Rule 84 ET Rules provides: “In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay”.[11]Costs orders are the exception rather than the rule in employment tribunal proceedings, but that does not mean that the facts of the case must be exceptional (Power v Panasonic (UK) Ltd UKEAT/0439/04).[12]Such awards can be made against unrepresented litigants, including where there is no deposit order in place or costs warning (Vaughan v London Borough of Lewisham UKEAT/0533/120).[13]Where costs are awarded under Rule 76(2) there is no need to find that the party has acted vexatiously, abusively, disruptively or otherwise unreasonably. It is sufficient that they are clearly responsible for the breach.[14]In terms of abusive, disruptive or unreasonable conduct, “unreasonableness” bears its ordinary meaning and should not be taken to 10.1 Judgment – no hearing - rule 60 February 2018 be equivalent of “vexatious” (National Oilwell Varco UK Ltd v Van de Ruit UKEAT/0006/14).[15]Guidance has been given by the Court of Appeal in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 on the approach to assessing unreasonable conduct: “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”.[16]The tribunal does not need to identify a direct causal link between the unreasonable conduct and the costs claimed (MacPherson v BNP Paribas (London Branch) (No 1) [2004] ICR 1398).
Conclusion
[17]There are three stages in determining whether or not to award costs under Rule 76 ET Rules; first, whether the party has reached the threshold of establishing that a party had acted vexatiously, abusively or disruptively or that a claim had no reasonable prospects of success. Second, if the threshold has been reached, the tribunal will go on to consider whether it is appropriate to make an order for costs. Finally, if it is appropriate to make an order for costs tribunal will go on to consider the amount. Threshold[18]I have already struck out the claimant claims for, among other reasons, that the manner in which proceedings have been conducted by him has been unreasonable or vexatious. There has been no material from the claimant that would warrant my not, effectively, carrying forward such a conclusion into my determination on costs. I therefore determine that the claimant has met the threshold for the making of a costs order. Appropriateness of costs order[19]Tribunals are prepared to be more forgiving when litigants in person do not conduct litigation in the way that represented party would. However, this leniency is not without some bounds.[20]The claimant sent a text message on 6 February 2023 to a supervisor who the respondent proposed calling as a witness. This was before the claimant presented his claim on 8 June 2023. In it he said “See you in court cunt in meantime I’m going to have a bit fun. Now do yourself a favour and go cruel under a rock and die”.[21]Both before and after the presentation of the claim the claimant engaged in what I have described as a campaign of abusive, racist, threatening and aggressive text messaging to 2 people who the respondent proposed 10.1 Judgment – no hearing - rule 60 February 2018 calling as witnesses. I found that this was unreasonable conduct of the case.[22]I also found that the claimant did not take a single step forward in litigation after presenting the claim. There is ample scope for the conclusion, putting all of this together, that it was the claimant’s intention not to seek a fair and just determination of his claim, but to put the respondent and its witnesses not only to inconvenience but also to subject them to fear and apprehension.[23]I also have regard to the fact that the respondent, through correspondence from solicitor, gave the claimant the opportunity to withdraw from litigation at no cost. The claimant did not avail himself of this opportunity.[24]Finally, I have regard to the fact the claimant has appeared to have attempted attempt to mislead the tribunal by saying, in response to inquiries by the clerk on the day of the hearing, that he was unaware of the hearing.[25]In all the circumstances, I find that it is a reasonable exercise of my discretion to make an order for costs in this case. The amount of the order[26]On the face of it, the amount claimed by the respondent appears reasonable. Of course, I have had no assertions to the contrary from the claimant. I have also had no evidence or submissions on his means. The only thing I can go on are the assertions from the respondent, which do not appear to be unreasonable, that the claimant earned approximately £40,000 in the year ending April 2022. He also appears to have skills and experience that give him present and future earning potential.[27]The respondents have been put to the expense of incurring legal costs to prepare for two hearings the claimant did not attend. They have been put to expense in responding to a claim that the claimant did not take forward. They have been put to the expense of investigating the vexatious conduct and preparing a strike out application in respect of this.[28]In all the circumstances, I make the order in the sum claimed the respondent.