Mr C Neath v NSL Ltd: 2401261/2021
REASONS
[1]The claimant presented a claim form on 22 January 2021, after having completed ACAS Early conciliation, which took place between 08 December 2020 and 19 January 2021. He brought a claim for unfair dismissal.[2]The respondent, in its ET3, expressed that the claimant had indicated a wrong end date to his employment, and that the correct date was 08 September 2020. In light of this the respondent pleaded that the claim was out of time and that the claim should therefore be struck out.[3]A Preliminary Hearing in this case took place on 10 June 2021, before Employment Judge Rice-Burchall. The claimant attended this hearing in person. Having considered the case EJ Rice-Burchall listed this case for an open Preliminary Hearing to take place on 08 November 2021. And listed the issues to be determined as including: whether the claim is out of time; whether the claimant should be ordered to pay a deposit, and; general case management.[4]As part of case management, EJ Rice-Burchall directed that the claimant send to the respondent a schedule of loss by 20 July 2021. And that, in preparation for today’s hearing, the parties should agree on a hearing bundle by 04 October 2021 and that the claimant serve on the respondent a witness statement by 29 October 2021. The claimant was to provide this same witness statement at least 2 days in advance of today’s hearing.[5]Following the Preliminary Hearing of 10 June 2021, the claimant was sent a Notice of Hearing dated 08 July 2021, with the date of the Open Preliminary Hearing.[6]Today was the Open Preliminary Hearing listed by EJ Rice-Burchall.[7]My clerk informed me at 09.50am that the respondent representative and an observer were in the waiting room and ready for the hearing. However, the claimant had not yet turned up.[8]My clerk had requested that security contact her urgently if the claimant did arrive. At 10.08am the claimant had still not arrived at the tribunal hearing. My clerk called the phone number that the tribunal has as a contact number of the claimant and left a voicemail, to inform him of the hearing, as well as sending an email to the email address the tribunal has on file for the claimant.[9]At 10.15am, I asked my clerk to send a second email to the claimant to inform him that if the tribunal had not heard from him by 10.45am that I was minded to strike out his case for non-attendance.[10]At 10.45am, my clerk informed me that the claimant had still not arrived at tribunal and had made no contact with it either.[11]I started the hearing at 10.45am to enquire as to whether Mr Lassey knew of any reason as to why the claimant was no in attendance. He informed me that the claimant had not been in contact with the respondent since the Preliminary Hearing of 10 June 2021. That he had not engaged with the respondent in concluding the bundle for today’s hearing, nor had he sent the respondent a witness statement. Law[12]Rule 47 of the 2013 ET Rules provide that if a party fails to take part or be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing, in the absence of that party but, before doing so, shall consider any information which is available to it, after any enquiries that may be practicable about the reasons for the party's absence.Conclusions
[13]The claimant did not attend at the hearing, despite having a notice of hearing for some 4 months informing him of today’s hearing.[14]There was no information in the file that explains the claimant’s absence, or that would give an indication that absence was likely. And no information was discovered following the enquiries that were made. I do not rule out that something untoward has happened, but simply note that if there has then that is information that the tribunal is simply not aware of at the time of making this decision.[15]In all these circumstances, I consider dismissing the claim pursuant to Rule 47 of the Rules to be the just course. Costs Application[16]In light of the above, the respondent did raise a question of an application for costs based on the conduct of the claimant. This was not considered at this hearing, as the claimant ought to be given the opportunity to respond to any such application. Separate case management directions will follow in respect of that application. COSTS JUDGMENT The claimant is ordered to pay the respondent wasted costs in the sum of £1,014.50.Introduction
[1]The claimant’s claims in this case were struck out in their entirety at an open preliminary hearing on 08 November 2021. This hearing was listed to consider whether the claims brought were out of time, and, if they were, whether to extend time in the circumstances. The claimant did not attend this hearing. He did not respond to efforts by the tribunal to contact him on that day, and there has been, at least to my knowledge, no contact with the tribunal from the claimant since.[2]At the conclusion of the hearing of 08 November 2021, Counsel for the respondent raised the question of costs. Given that the claimant was not in attendance, and there potentially being good reason for his non-attendance that was simply unknown to the tribunal, the respondent was invited to make an application for costs in writing. The claimant would then be afforded time to respond to the application.[3]Directions were sent to the parties. The respondent would make an application for costs in writing. The claimant could provide a response and give evidence of his financial means, if he wanted financial means to be taken into account, and the parties were invited to request a hearing in person if they considered that to be necessary.[4]The claimant has not responded to this application for costs, nor the directions from the tribunal.[5]It is on the basis that neither party requested a hearing in this matter, nor objected to it being determined on the papers that this hearing was heard in chambers on the papers without the parties present. Respondent’s application for costs[6]The claimant was directed by Employment Judge Rice-Birchall in a Preliminary Hearing on 10 June 2021 to engage with the respondent with a view to agreeing a hearing bundle to be used at this hearing. He was further directed to send to the respondent a witness statement to explain why he brought his claim out of time by 29 October 2021. The claimant attended this telephone hearing.[7]The respondent makes its application for wasted costs on two grounds. First, the claimant has failed to engage with the respondent since the hearing of 10 June 2021. He did not make any contact or engage with the respondent with respect the bundle, nor did he send a witness statement as directed, and is therefore in breach of tribunal orders. And secondly, on the grounds of unreasonable conduct. The respondent submits that failing to engage in the process and then failing to attend the preliminary hearing without explanation is unreasonable conduct with the aim of inflating costs and causing unfairness towards the respondent.[8]The respondent has provided me with a breakdown of its costs. I have before me the total costs incurred in defending this claim, and a breakdown of the costs that have been incurred by the respondent since 10 June 2021. Tribunal rules relating to costs[9]The tribunal rules provide as follows: 76. When a costs order or a preparation time order may or shall be made(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(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction ……… 78. The amount of a costs order (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 ……..(3) for the avoidance of doubt, the amount of a costs order under subparagraphs (b) to (e) of paragraph (1) may exceed £20,000. 80. When a wasted costs order may be made (1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs— (a) The Respondent incurred costs as a result of the improper, unreasonable or negligent act or omission on the part of the Claimant; or (b) The Respondent incurred costs which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the Respondent to pay. 84. Ability to pay 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.Conclusion
[10]I am satisfied that the claimant has conducted these proceedings unreasonably. It seems that he had behaved reasonably in conducting them up until 10 June 2021, when he attended at a Preliminary Hearing before Employment Judge RiceBirchall. However, thereafter, he has not engaged in the process at all, despite having full knowledge that he needed to and that there was a further preliminary hearing listed for 08 November 2021. This was compounded by his nonattendance at that hearing, for which there was no explanation given. The claimant has been given further opportunity to explain matters when he received directions form the tribunal in respect of the respondent’s application for costs. However, the claimant has not engaged with this either.[11]The claimant’s failure to engage with the respondent to produce a hearing bundle for today’s hearing. His failure to take any steps to produce a witness statement in accordance with the case management timetable. And his failure to attend at this hearing without explanation is all conduct that is unreasonable.[12]I therefore conclude that from the date of the telephone preliminary hearing, at which the claimant did attend, that being 10 June 2021, the claimant had acted unreasonably in the way that he conducted these proceedings.[13]I consider in these circumstances and given that the claimant did not respond to directions sent to him in respect of the application for costs, that it is appropriate to award costs in this case.[14]The claimant did not respond to direction to provide details of his financial means. He had this opportunity and has elected not respond to it. I have no knowledge of the claimant’s financial position. In these circumstances I have decided not to take his ability to pay into account.[15]The final question relates to the amount to be awarded. As intimated above, this should and is limited to costs incurred after 10 June 2021. As it is only from this point that the claimant’s conduct in this decision went from being reasonable to being unreasonable. I am grateful to the respondent for having responded to my request for this breakdown.[16]Having considered the rates and amounts claimed on the breakdown of costs incurred since 10 June 2021, I am satisfied that those figures are reasonable. This is calculated as being the sum of £1,014.50.[17]The respondent has incurred wasted costs in the sum of £1,014.50. This is because of the unreasonable conduct of the claimant. The claimant is ordered to pay wasted costs in the sum of £1,014.50.