Miss C A Baines v Blackpool Borough Council: 2403335/2014

EMPLOYMENT TRIBUNALS

Case No 2403335/2014

Between

Miss C A BainesClaimant

Blackpool Borough Council Employment Judge Tom RyanRespondent

Before

Employment Judge Tom Ryan

Date 25 August 2017

JUDGMENT

ON RECONSIDERATION The judgment of the Tribunal is that the application for reconsideration made on 26 July 2017 is dismissed.

REASONS

[1]This is an application for reconsideration of the judgment sent to the parties on 16 May 2016 by which the claimant’s claims were dismissed.

[2]The tribunal's powers concerning reconsideration of judgments are contained in rules 70 to 73 of the Employment Tribunals Rules of Procedure 2013. A judgment may be reconsidered where “it is necessary in the interests of justice to do so.” Applications are subject to a preliminary consideration. They are to be refused if the judge considers there is no reasonable prospect of the decision being varied or revoked. If not refused, the application may be considered at a hearing or, if the judge considers it in the interests of justice, without a hearing. In that event the parties must have a reasonable opportunity to make further representations. Upon reconsideration the decision may be confirmed, varied or revoked and, if revoked, may be taken again.

[3]Under rule 71 an application for reconsideration must be made within 14 days the date on which the judgment (or written reasons, if later) was sent to the parties.

[4]The approach to be taken to applications for reconsideration was set out in the recent case of Liddington v 2Gether NHS Foundation Trust

UKEAT/0002/16/DA

in the judgment of Simler P. The tribunal is required to: 4.1. identify the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage; 4.2. address each ground in turn and consider whether is anything in each of the particular grounds relied on that might lead ET to vary or revoke the decision; and 4.3. give reasons for concluding that there is nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his decision.

[5]In paragraph 34 and 35 of the judgment Simler P included the following: “A request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. Where … a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”

[6]I note my way of a preliminary observation that this is an application which is made 14 months out of time. The claimant has not sought to explain the delay in the application.

[7]It is relevant also to consider the history of this litigation since the tribunal’s original judgment. The claimant did not seek a reconsideration at the time. She appealed to the EAT the appeal was permitted to go through to a preliminary oral hearing. At that hearing the appeal was dismissed by His Honour Judge Peter Clarke.

[8]The respondent had made an application for costs. The tribunal decided this and written representations at the request of the parties we made an order that the claimant the sum of £20,000 as a contribution to the respondent’s costs. The claimant sought a reconsideration of that order. That reconsideration was decided after an oral hearing on 12 June 2017. Judgment and reasons have been prepared and signed today. It is my expectation that they will be sent out to the parties at the same time as this judgment.

[9]My reason for referring to the most recent hearing is that in the reconsideration application on the costs order the claimant referred to the same matters as she now refers to in this application.

[10]As part of the materials put before the tribunal in support of the claimant’s application reconsideration of the cost judgment the claimant produced a document dated 8 February 2017. At the claimant’s request we consider these at the cost reconsideration hearing. Paragraphs 13-24 of our written reasons for the decision on that application are material in this respect.

[11]As part of the preliminary consideration of this further application I have considered the two documents side by side.

[12]Paragraphs 1 and 2 make precisely the same point as in the earlier document although they are amplified, by the addition of some parts original paragraph 8. Paragraphs 3-7 appear to be identical in the two documents. Paragraphs 9 and 11 of this application repeat paragraphs 8 and 9 respectively of the original document.

[13]Paragraphs 8 and 10 of this application do not appear to have been set out previously. Paragraph 8 is an amplification of the claimant’s argument in respect of her criticism that there was a marked copy of her witness statement placed before the tribunal at the original hearing. This is a point we have already considered in dealing with the other reconsideration application and to which we have attached no significance. Paragraph 10 is an argument about the credibility of witnesses at the original hearing.

[14]As is apparent from our costs reconsideration judgment the substance of the matters upon which the claimant now seeks to rely were in large part canvassed before the EAT. The rule requiring that an application for reconsideration is made within 14 days (whereas an appeal can be made within 42 days) indicates that the process in the ET and the EAT are intended to provide an order and an orderly way of dealing with challenges to the tribunal’s decision. In my judgment it would therefore take something highly unusual, such as the discovery of entirely unforeseen evidence, after an appeal has been disposed of, to enable the matter to be canvassed again by way of an application for reconsideration out of time.

[15]However, although the claimant asserts in her application that she has discovered that the respondent altered evidence in the bundle and tailored witness evidence after the original hearing, it is self-evident that she has not recently discovered any such thing. She was making the same points some 8 months ago to the EAT. Any implied suggestion that this is recently discovered evidence is, on that basis, disingenuous. The need for finality in litigation and the 14 day time limit both underline the need for such applications to be made promptly.

[16]Moreover, all the matters raised in the claimant’s application, which she clearly thought were relevant to be raised in the EAT, were matters germane to any appeal. Had His Honour Judge Peter Clarke considered it appropriate he could have directed that an application for reconsideration in respect of one or more of these points should have been made to the tribunal at that time.

[17]Taking all these matters into account I consider that there is no reasonable prospect the original decision being varied in the interests of justice. It appears to me that this further iteration of the same points by the claimant strongly suggests that this is just such an application as Simler P was describing in the paragraphs quoted above in the case of Liddington.

[18]For all those reasons I refuse the application for reconsideration.

[1]This is a reconsideration at an oral hearing in respect of an order made by the Tribunal in respect of costs.

[2]The relevant background is set out in the two judgments the Tribunal has previously made; the first of those being its judgment of 16 May 2016 by which the claims for unfair dismissal, equal pay and discrimination were dismissed, which were sent with written reasons to the parties on that day.

[3]The respondent made an application for the costs of the proceedings and after the preparation and exchange of written representations that resulted in the costs hearing of 11 October 2016 whereby the claimant was ordered to pay a contribution to the respondent’s costs in the sum of £20,000.

[4]It is that judgment, namely the order for costs, that the claimant now seeks to have the Tribunal reconsider.

[5]In the meantime the claimant had appealed the Tribunal’s judgment to the Employment Appeal Tribunal by a notice dated 27 June 2016.

[6]On 23 August 2016 on what is called the “sift” His Honour Judge David Richardson permitted it to go forward to an oral hearing to be considered by a single Judge.

[7]Our hearing in relation to costs, as we say, proceeding by way of written representations, took place on 11 October 2016. The judgment was sent to the parties on 25 January 2017, on the same day when the oral hearing took place at the Employment Appeal Tribunal.

[8]At the oral hearing His Honour Judge Peter Clarke refused the claimant leave to amend her notice of appeal and dismissed the appeal as not having any prospect of success.

[9]The costs judgment that was sent by the Tribunal to the claimant on 27 January 2017 resulted in an application in writing dated 8 February 2017.

[10]The claimant then, on 31 May 2017 after we had decided to set the reconsideration down for an oral hearing, prepared a witness statement dated 31 May 2017, and then she prepared further submissions dated 4 June 2017 and finally we received a witness statement from Miss Dutton of the respondent dated 6 June 2017 to which was attached some documents in relation to the claimant's financial situation.

[11]The claimant at this hearing produced, without objection by Mr Serr, two additional documents. A statement of her end of year information showing that her pension is payable at the rate of £30,033.60 gross a year and that her net pension for the year is approximately £24,500. The other document she submitted was a fee note of Miss Gumbs of counsel showing that the claimant had instructed her, by direct access, to read into, prepare and direct a skeleton argument for the original hearing, that is the merits hearing, at a sum of £5,000 plus VAT, and drafting a response to the costs application which the claimant put in when we first considered the question of costs on 17 June 2016, the fee for that being £700 plus VAT.

[12]The reason we quote those figures is because the claimant's financial position is one of the matters that we considered we should look at again. Although Mr Serr in answering this application did not accept that technically the claimant did not have an opportunity to advance information about her means, he recognised that the information the Tribunal had when it made its original order was limited. He did not seek to persuade us that we should not consider afresh information about the claimant's means.

[13]The claimant, however, does not rely only upon her means, although she does rely upon those, as a reason for setting aside the original order, as is apparent from her statement and her submissions and her application. The claimant refers to three matters. We can deal with them broadly.

[14]One is that the respondent had, and this is of course in the period up to and before the judgment of 16 May 2016, done three things.

[15]She alleges first that the respondent had failed to give disclosure. She referred to a document prepared by a member of the respondent’s staff which itself referred to an email of June 2011 which the claimant had still not seen but which she said showed failure to disclose that document. Although she does not say as we understand it that she made a specific request for that, it means that the bundle of documents was wrongly compiled. That led to the picture before the Tribunal being at best incomplete, but perhaps supported false evidence given by a witness at the original hearing leading, she said, to erroneous findings of fact.

[16]Second, there was a general point about disclosure and a further specific one.

[17]The general point was a failure to make proper disclosure at all or in time. Specifically that there had been the substitution of one notice of appeal in relation to her grading, that is in the stage 2 grievance appeal, for another. The beginning of the claimant's submission to that had been substituted in the bundle wrongly for what the claimant had actually submitted at stage 3. This led, she said, to the Tribunal making a finding of fact that was in error at paragraph 98.

[18]Third, she asserted that the respondent, or somebody, had marked her witness statement without her consent or knowledge, and it was only when she got to the witness table that she realised that the witness statement she was looking at there when being cross examined by Mr Serr, which as we recall took some hours, had markings upon it.

[19]The Tribunal had no recollection of the markings on the witness statement when the claimant made this submission. We dealt with it in this way. In deliberations we have looked at our copies of the witness statement of the claimant that we had at the hearing. In many places there is yellow highlighting. We have each marked our copies of the statement in other respects with the notes that Tribunal members put upon statements as they read them, either by way of annotation or emphasis or to draw attention to a particular passage. It is clear that the highlighting was not done by us because each witness statement is apparently identical in terms of the highlighting. We do not have, any longer, the witness table copy of the witness statement in that form. We are prepared to accept that it was highlighted in the same way.

[20]We do not recall raising any question about the marking of the witness statement at the hearing. Nor indeed do we believe that anybody else did so to the best of our recollection.

[21]Now our attention has been drawn to the highlighting we are sure that none of the marks had any significance. We certainly did not attach significance to them at the time. We venture to suggest that looking at some of the markings they appear to be markings more like those that somebody acting on behalf of the claimant would make rather than otherwise. They seem to emphasise points that might be said to be to her advantage, but whether that is right or wrong matters not.

[22]The claimant indicated that she wanted to raise those matters with us. We suggested that if those matters were properly to be raised they were relevant, if significant, to the liability judgment of the Tribunal, rather than to the question of costs. The claimant emphasised that there is a need for disclosure to be done properly, and of course she is right to say that. So we permitted her to raise those points.

[23]We asked the claimant in the course of argument whether she had raised these points in the EAT. Because we do not have written judgment of the reasons of HH Judge Peter Clarke for refusing the appeal at the preliminary stage we needed to ask the claimant. She thought that she might have mentioned one of those points, she told us, but certainly not all three.

[24]Although that was a preliminary hearing in the EAT addressed by the claimant alone, Mr Serr had attended on behalf of the respondent and had taken a note. He told us that to the best of his note and recollection the claimant had raised all three of those matters. It was only a short hearing. We accept she may not have raised them at the length that she has raised them with us, but they appear to have been raised before HH Judge Clarke when he was considering whether to allow the appeal to proceed. One of them related to the amendment issue, and that is based upon the three points as we understand it that we have just described.

[25]Mr Serr’s submission is that by virtue of that, it is not a matter that the claimant can raise again in this context. We agree with that. The submission is right as a matter of law.

[26]Even if we thought that the claimant could rely upon them again, in our judgment they are nothing to the point. This is not a reconsideration of the Tribunal’s judgment in relation to the merits of the case. To some extent the merits of the case are a relevant factor in determining whether to make an order for costs and by extension perhaps whether it is in the interests of justice to revoke that order for costs. But in our judgment the points that the claimant makes, whatever their merit, seem to us to fall far short of providing a material factor upon which it can be said to be in the interests of justice to reconsider the application for costs.

[27]We remind ourselves that rule 70 of the Tribunal Rules says that a Tribunal can revoke, vary or confirm a judgment if it considers it in the interests of justice to do so upon reconsideration. We remind ourselves also that rules 76(1), 78 and 84 relate to the question of when and in what circumstances and how much a costs order might be. Rule 84 in particular says the Tribunal may have regard both in determining whether to make a costs order and if so how much, the paying party’s ability to pay.

[28]The substance of this application, having considered the other matters above, is whether it is appropriate to look again at the question of the claimant's means in terms of reconsidering the order costs. We refer in that regard to paragraph 25 of the reasons for our judgment when we made the costs order. We said in terms that we did not have information in respect of the claimant's capital position. The claimant had the opportunity to provide that information but did not do so. We considered it was not unreasonable to infer given her professional qualifications and history of a lengthy employment that if she did have at least some capital assets or the prospect of such she would have said so.

[29]That said, we recognised also that a person in the position of the claimant caring for elderly parents, even with a Local Authority pension income, may be unlikely to be able to meet a costs order out of her income other than by relatively modest payments over an extended period of time.

[30]The background to the costs application is this. As we recorded in paragraph 3, the schedule of costs showed that solicitors’ costs for these proceedings were £21,355; counsel’s fees added a further £14,250 and £9,000 was the cost of counsel’s fees for the six days of hearing. So the total costs sum, therefore, exceeded £35,000. In those circumstances the Tribunal could not at the costs hearing have awarded the full amount but it could order a sum up to £20,000. The respondent’s claim for costs was limited to that amount as noted in paragraph 11 of our earlier judgment.

[31]The material facts appear to us to be these. The claimant was born in 1954. She was dismissed from the Borough Council at the end of 2014 and she is in receipt of a Local Authority pension. She could have taken a lump sum of some £60,000 and had a smaller pension in payment year on year, but she chose to commute, as she could under the scheme, the entirety of the lump sum to enhance her income during her retirement. That has resulted in the gross figure for the annual payment of £30,033.60. Of course that is subject to tax.

[32]The respondent refers both to that pension income figure but more particularly the claimant's capital position. The claimant, a single person, lives with her parents who are elderly. The document attached to Miss Dutton’s witness statement shows that according to the entry at the Land Registry Mr and Mrs Baines and the claimant have the benefit of a lease granted in 1999. It is a lease or under lease in respect of a lease of 999 years less ten years granted originally in May 1892 and there appears to be another lease in December 1908.

[33]The claimant explained that she and her parents were originally joint tenants. In about 2001 they became tenants in common. She states in her witness statement, and the Tribunal accepted this without hesitation, that a stage came at about that time when in order to achieve income for themselves her parents entered into an agreement with an insurance company, not identified, whereby in return for the value of their equity and the remainder of the lease, which is a third each for them, they would assign that to an insurance company in return for an annuity. As a result of this the claimant's interest is a one third share of the capital value of the remainder of the leasehold value of the property.

[34]The claimant’s estimate, based upon what other houses in the road are selling for, is that the value of the property is now £180,000. If that is right then it would follow that the value of her interest in the property is in the order of £60,000.

[35]The claimant had, at the time of leaving employment, some savings of some £12,000. She explained in her witness statement that she spent £10,000 or thereabouts on the Tribunal process. It seems to us that is probably right. The total of fees for the claimant to bring the case to the Tribunal, the appeal and the fee notes of |her counsel indicate that she spent about £10,000 in the process.

[36]The claimant has retained savings of £2,000 as against what she calls “emergencies”. She describes herself as “caring for elderly parents” (apparently they are now in their 80s). She will not receive a State Pension for some years, and given her age and the current arrangements in relation to State Pensions we accept that, but she receives nonetheless pension of approximately £2,000 a month and, as we say, she has the capital asset of her interest in the house.

[37]We hear from the claimant and accept that she has no other particular debts, nor indeed any other savings or capital assets.

[38]Against that background we ask ourselves this question: was the order made by the Tribunal such that it is in the interests of justice, having regard to this information, to revoke or vary it.

[39]We have considered it carefully. We do not think that the claimant has made any valid attack on the Tribunal’s reasoning for making the order other than in the respects that we have mentioned. We do not consider that her financial position is such that it can be said that no order should have been made at all.

[40]The claimant’s means are relevant to the amount of the order. Having regard to the matters that we rehearsed in our earlier costs judgment and the informnation now provided, we say it is not in the interest of justice to vary or revoke the order for costs. The order, though significant, is one which the claimant can, at least in due course, meet.

[41]Since the tribunal concluded its deliberations and prior to the preparation of this written judgment to other events have occurred to which we should refer.

[42]The first is that the claimant has paid fees in connection with this claim. In R (on the application of UNISON) v Lord Chancellor

[2017] UKSC 51

the Supreme Court decided that it was unlawful for Her Majesty's Courts and Tribunals Service (HMCTS) to charge fees of this nature. HMCTS has undertaken to repay such fees. In these circumstances I shall draw to the attention of HMCTS that this is a case in which fees have been paid and are therefore to be refunded to the claimant. The details of the repayment scheme are a matter for HMCTS.

[43]Second, on 26 July 2017 the claimant made another application for reconsideration. This however is an application respect of the tribunal’s original judgment of 16 May 2016. This has been considered separately and the result of that consideration is contained in a separate decision.

[1]This is an application for reconsideration of the judgment sent to the parties on 7 September 2017. That was itself a judgment on an application for reconsideration by the tribunal of an earlier judgment ordering the claimant to pay the respondent’s costs. The previous history of this litigation is summarised at the beginning of the tribunal’s judgment of 12 June 2017 and does not need to be repeated here.

[3]Under rule 71 an application for reconsideration must be made within 14 days the date on which the judgment (or written reasons, if later) was sent to the parties.

[4]The approach to be taken to applications for reconsideration was set out in the recent case of Liddington v 2Gether NHS Foundation Trust

UKEAT/0002/16/DA

[6]In this further application for reconsideration the claimant makes the following points: 6.1. that parts of the claimant’s submissions were not referred to; 6.2. that the tribunal did not describe the respondent’s “negative conduct”; 6.3. that the tribunal should identify the unreasonable conduct and the effect it had - Barnsley MBC v Yerrakalva; 6.4. that the tribunal had no evidence for the conclusion it made about the claimant’s unreasonable conduct in its earlier judgment of 11 October 2016; 6.5. that the claimant had not acted unreasonably because she had received advice from counsel who had prepared a skeleton argument and therefore the tribunal’s discretion to make an order was not triggered and thus the order was unlawful.

[7]A tribunal is required to receive the submissions of the parties before it. It is required to form a judgment as to the submissions which have persuasive force in coming to a conclusion. It is not required to set out extensively the submissions of the parties in every case. It is required to explain the basis upon which it reaches its conclusion. Sometimes that requires it to set out submissions in summary and on other occasions more fully.

[8]The matters set out at paragraph 6.2 - 6.4 above do not relate to the tribunal’s latest judgment. It is important to remember that the reconsideration judgment now under challenge was permitted to take place in order to ensure that the claimant could put before the tribunal full financial information. That is why in the later judgment the tribunal does not rehearse its earlier conclusions in relation to its discretion to make an order for costs. So in these respects the claimant is making an application for reconsideration significantly out of time.

[9]In paragraph 7 application the claimant refers to having obtained advice on the merits of her case from counsel who had drafted a skeleton argument to submit to the tribunal on 12 June 2017. The claimant asserts that because she had done that she could not be taken to have acted unreasonably by the tribunal when it reached that conclusion in October 2016. The persuasive force of this point is not apparent.

[10]If there are any merits in these points in my judgment they do support an application for reconsideration. The claimant appears to be arguing that the tribunal erred in law in making its latest judgment. If so, that is a matter that could be canvassed before the Employment Appeal Tribunal.

[11]Taking all these matters into account I consider that there is no reasonable prospect the original decision being varied in the interests of justice. In my judgment this is, again, such an application as Simler P was describing in the paragraphs quoted above in the case of Liddington.

[12]For all those reasons I refuse the application for reconsideration.