Mr M Walsh v The Home Office: 2400803/2016
JUDGMENT
ON COSTS APPLICATION This judgment on the respondent’s application for a wasted costs order and a costs order, and on the costs applications made by the claimant and his solicitor, Mr S Pinder, is pursuant to the reserved judgment on liability sent to the parties on 25 October 2016. The judgment of the Tribunal is as follows:[1]For the purposes of the respective costs applications before the tribunal only Mr. S. Pinder and Ms. S. Begum are parties to these proceedings.[2]The claimant did not act vexatiously, abusively or disruptively in either the bringing of these proceedings (or part) or the way that the proceedings (or part) were conducted insofar as they were conducted by him.[3]The claimant acted unreasonably in conducting proceedings insofar as he conducted them by way of instruction to his solicitor/advocate to proceed to the conclusion of the final hearing, from the date of receipt, consideration and advice upon the respondent’s witness statements and trial bundle to the conclusion of the liability hearing on 19 October 2016; the Tribunal will make an order for costs in respect of part of the costs incurred by the respondent on 18 and 19 October 2016 (including counsel’s brief fee) subject only to any reply received in respect of the directions below and consideration of the claimant's means if he wishes his means to be taken into account at a further costs hearing in open Tribunal. Subject to those matters the tribunal is unable to assess the sum to be paid, if any, by the claimant.[4]Mr S Pinder did not act improperly, unreasonably or negligently through any act or omission provided that he disclosed to the claimant costs warnings dated 8 September 2016 received by him from the respondent, or at least the fact of them. Case No. 2400803/2016 2 The Tribunal’s decision on the respondent’s wasted costs application against Mr. Pinder is dependent upon responses received, if any, to the directions set out below.[5]The respondent has not acted vexatiously abusively, disruptively or otherwise unreasonably in making its costs application or the way that the proceedings in respect of its costs applications have been conducted. The applications for costs orders against the respondent fail and are dismissed.[6]Ms S Begum has not acted improperly, unreasonably or negligently in respect of any act or omission on her part as representative for the respondent. The application for a wasted costs order against Ms Begum fails and is dismissed.[1]Mr Pinder and the claimant shall separately write to the Tribunal (sending respective copies to the respondent) confirming whether or not Mr Pinder sent to the claimant or otherwise disclosed to him the costs warnings made by the respondent on 8 September 2016. Failure to respond to this direction or the provision of an ambiguous or otherwise equivocal response will lead the Tribunal to conclude that Mr Pinder did not deal with the costs warnings in any way, as that is what he indicated in his email of 9 September 2016 addressed to the respondent. By way of clarification, it is confirmed that the Tribunal’s conditional finding is that any failure to have advised the claimant of those costs warnings would amount to negligence on the part of Mr Pinder and would result in his paying all or part of the costs of the two day final hearing.[2]The claimant and Mr Pinder will confirm whether they still request an opportunity for there to be a hearing at the Employment Tribunal for them or either of them to give evidence as to their means. The Tribunal may take into account ability to pay in deciding what amount the Tribunal will order be paid to the respondent.[3]The respondent shall provide to the Tribunal, the claimant and Mr Pinder a detailed breakdown of the costs incurred in respect only of the final hearing, being the costs of attendance on the day inclusive of counsel’s brief fee, which it is understood will have included some element of preparation for the final hearing. The tribunal is not as yet convinced that the cost of instructing solicitor’s attendance with counsel was necessary, proportionate and ought be paid by the claimant. Employment Judge T V Ryan 1st March 2017REASONS
[1]The respondent made an application for wasted costs against the claimant’s representative, Mr S Pinder, in connection with his handling of the claimant's claim, and at the same time made an application for a costs order against the claimant. These applications were made in the light of the reserved judgment of the Tribunal which was signed by me on 21 October 2016 and sent to the parties on 25 October 2016.[2]The claimant made a wasted costs application against Ms S Begum, solicitor for the respondent.[3]In considering whether either of the legal representatives ought to be responsible for the payment of costs, the Tribunal had to decide whether either of them had acted improperly, unreasonably or negligently through any act or omission on their part in their capacity as representative for their respective party. Subject to Case No. 2400803/2016 2 that deliberation the Tribunal may have wished to consider their respective means and may have wished to then make an order for the payment of some or all of the applying party’s costs.[4]With regard to the application for a costs order made by the respondent against the claimant, the Tribunal would have to consider whether he had acted unreasonably, vexatiously, abusively or disruptively in either bringing the proceedings of the way in which the proceedings were conducted. Again subject to that deliberation the Tribunal may take into account the claimant's means before determining how much ought to be paid by him, if anything.[5]In respect of all of the above applications the Tribunal would have to assess the appropriate level of costs to be ordered in respect of any wasted costs order or costs order.[6]It is clear that the preparation for the final hearing was vexed and having seen the correspondence between the parties the Tribunal notes the tone of it. That said, it was evident, save in one respect detailed below, that both representatives advanced their respective clients’ cases appropriately, if at times forcefully. The conduct of the proceedings was at times robust, but not unreasonably discourteous and neither were the representatives unduly obstructive to the other. Firm positions were taken up by the respective sides and they were argued fully within the bounds of professional courtesy. Both representatives conducted themselves entirely appropriately in their dealings with the Tribunal.[7]It follows from those findings that subject to the one matter mentioned below we did not consider that either representative had acted improperly, unreasonably or negligently through any act or omission.[8]Our only hesitation with regard to the actions of Mr Pinder related to his response to a costs warning that the respondent issued on 8 September 2016. On receipt of it Mr Pinder indicated he would not deal with the letter unless the respondent paid his costs which he estimated for them at somewhere in the region of £1,000. The Tribunal was concerned in its deliberations that Mr Pinder may not have passed on that letter with appropriate advice to his client, the claimant. The Tribunal required confirmation of what transpired; it is satisfied with the confirmation received both from Mr Pinder and from the claimant that the costs warning was passed on with advice. In those circumstances the Tribunal finds that it cannot be said that Mr Pinder had acted improperly, unreasonably or negligently through any act or omission.[9]The claimant argued his case forcefully notwithstanding the opposition to it which the Tribunal found persuasive at the final hearing. The arguments advanced at the final hearing on the evidence heard were entirely consistent with the submissions and representations made by the respondent’s solicitor to the claimant's solicitor throughout the case. At the final hearing the Tribunal heard evidence from witnesses including an expert in the field which entirely bore out the respondent’s contentions in its response to the claim. The witness statements had been exchanged in advance of the hearing. There was some slippage in the timetable for preparation; nevertheless the claimant ought to have realised prior to the commencement of the final hearing on 18 October 2016 that his claim had no reasonable prospect of Case No. 2400803/2016 3 success. He received a costs warning putting him on notice that the respondent would claim costs if he were to lose for all the reasons it had stated he would lose in its lengthy correspondence and disclosure process.[10]The Tribunal finds that it was unreasonable of the claimant to pursue the claim through a two day final hearing on 18 and 19 October 2016 against insurmountable odds. By no later than 17 October 2016 the claimant ought reasonably to have realised that he could not succeed with his claim and then he ought to have considered withdrawing it. The claimant was unreasonable in pursuing the matter up to and including a two day contested hearing at the Tribunal in all of the circumstances and he did so knowing that in the event of his losing then he would face an application for a sizeable costs award. He chose to take that risk despite overwhelming evidence which he could not effectively counter. The respondent ought not to be penalised by having to bear all of its costs in such circumstances; it could not have done more by 17th October 2017 to make the risks facing the claimant owing to the weakness of his claim known to him. The claimant was unreasonable proceeding regardless of all of this.[11]On that basis the Tribunal decided that some or all of the costs incurred by the respondent in respect of the two day hearing ought to be recoverable by the respondent, subject to consideration of the claimant’s means and identifying the paying party which was in turn dependent on ascertaining whether or not Mr Pinder had disclosed the costs warning of 8 September 2016 to the claimant.[12]As stated above, the Tribunal is satisfied that Mr Pinder acted appropriately with regard to the costs warning of 8 September 2016, and in those circumstances no order should be made against him.[13]With regard to the claimant, the Tribunal has taken into account his somewhat limited means. The claimant made written submissions as to his means which would appear to indicate a shortfall between his income and outgoings of £48 per month. The Tribunal took note of the contents of an email that the claimant sent to the Tribunal on 25 April 2017 (timed at 15:53) setting out his income and outgoings. In that email he says amongst other things that he did not have “other assets of significant value”. He did not provide details of any assets and the Tribunal was unable to assess their value or form a view as to whether in context their value was significant.[14]The Tribunal also took into account that the means of the paying party are a factor to be taken into account but they are not determinative. The Tribunal was also disappointed not to have the opportunity of hearing from the claimant in giving evidence as to his means, both income and capital. It was noted that the claimant says that he had been advised by his doctor that attendance would have been stressful. The claimant's means were taken into account by the Tribunal, which felt that notwithstanding those limited means the claimant ought reasonably to pay some element of the respondent’s costs. In this regard the Tribunal was reassured at the comment made by Mr Serr that whilst he could not undertake as to the respondent’s further actions with regard to enforcement he was confident it would adopt a sensible approach, and in that context he referred to the possibility of a request for instalment payments. Case No. 2400803/2016 4[15]The Tribunal considered the costs claim made by the respondent and its initial schedule showing some £27,000 worth of costs had been incurred to 3 November 2016. The Tribunal had previously indicated that the costs under consideration were only those in respect of the hearing on 18 and 19 October 2016. The respondent submitted a revised schedule for those two days showing costs attributable to the endeavours of Ms Begum in the sum of £1,800 and fees payable to counsel in the sum of £2,508, being a grand total of £4,308.[16]Having heard Mr Serr’s submissions on the sums, the Tribunal considered that there was an element of duplication in the billing, and it was not satisfied that the costs incurred by the respondent in respect of not only counsel’s fees but also the instructing solicitor for two whole days was a sum that ought be visited upon the claimant. The Tribunal took into account counsel’s expertise, the preparation for trial that he had undertaken and for which he claimed a fee, and the fact that he had with him witnesses including knowledgeable and expert witnesses on the pension scheme such that whether or not he had additional legal support was an option for him and for his convenience, but its costs ought not reasonably be borne by the claimant.[17]In conclusion the Tribunal assessed the costs payable by the claimant to the respondent in the sum of £2,508. Employment Judge T V Ryan Date: 10.05.17