Mr D Johnson v Ellen Court Partnership and Mr Anthony Brunning: 2405467/2016
JUDGMENT
The claim is struck out.REASONS
[1]By letters dated 28 November 2017 and 12 December 2017 the Tribunal gave the claimant an opportunity to make representations as to why the claim should not be struck out because the claimant had not complied with the Order of the Tribunal dated 24 April 2017; it has not been actively pursued.[2]The claimant has failed to respond, or to make any representations in writing why this should not be done, or to request a hearing. The claim is therefore struck out.[1]The claimant’s claim was struck out by the Tribunal on 29 December 2017 for failure to comply with Tribunal orders, and failing to active pursue the claim. Following that judgment the respondents applied by letter of 18 January 2018 for an order that the claimant pay the respondents’ costs, on the grounds that the claimant had conducted the proceedings unreasonably.[2]By letter of 31 January 2018 the Tribunal invited the claimant to comment upon the respondents’ application. No response was received, and by letter of 16 February 2018 the Tribunal warned the claimant that unless he responded as to why a costs order should not be made, and/or he provided details of his means , if he wished them to be taken into consideration, the Tribunal would proceed to determine the application without further reference to him.[3]No response was received to that communication, and by letter of 23 March 2018 the Tribunal informed the parties that the respondents’ application would be determined without a hearing, and that if the claimant wished to oppose the application he must inform the Tribunal , and the respondents, setting out his grounds of objection.[4]The hearing to determine the application was listed for 9 May 2018, and the application was considered on the papers. No response was received from thr claimant, and by letter of 29 March 2018 the respondents confirmed that they did not intend to attend the hearing.[5]By letter of 8 May 2018 the Tribunal enquired of the respondents whether they were seeking the VAT element in the costs claimed, given that the first respondent was presumably VAT registered. Case No:2405467/2016[6]By letter of 9 May 2018 the respondents replied that the VAT element was not being pursued.[7]The application is made pursuant to rule 76(1)(a) of the 2013 Rules of Procedure on the basis, it is contended, that the claimant has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing or the conducting of the proceedings. Those are the threshold conditions for a Tribunal; to consider making an award of costs. The basis for the application is that the claimant has acted unreasonably in the conduct of these proceedings. The Tribunal is satisfied that is the case, he breached, without explanation, and has continued to fail to explain , the Tribunal’s orders that he provide disclosure, exchange witness statements, and exchange any skeleton argument, as detailed in the respondents’ letter of 4 December 2017. He has failed to respond to any communications since 22 November 2017. Such conduct is clearly unreasonable, and the entitles the Tribunal to consider making an order for costs. 8.The Tribunal does not have to make such an order, it retains a discretion whether to do so. The claimant, however, has advanced nothing in response to the application, and the Tribunal therefore has no material before it upon which to exercise its discretion in the claimant’s favour. The Tribunal accordingly will make an award of costs against the claimant. 9.In terms of the amount of the award, the respondents only seek the sum of £600, being Counsel’s fees , net of VAT , incurred in relation to the preliminary hearing on 21 April 2017. That , the Tribunal considers, is a reasonable sum. Whilst rule 84 empowers a Tribunal to have regard to the paying party’s ability to pay when determining the amount of any costs order, the claimant has put no information before the Tribunal as to his means, and the Tribunal is thus unable to take his ability to pay into account. 10.The Tribunal accordingly makes an award of costs in favour of the respondents in sum of £600.00, which sum the claimant is ordered to pay.