Mr I McMahon v ASE plc: 2408150/2021
JUDGMENT
On reconsideration, the original decision is confirmed.REASONS
[1]At a preliminary hearing on 12 September 2022 the Tribunal recorded that the claimant’s application to amend his claim was withdrawn.[2]Upon the respondent’s application under rules 76(1)(a) and 76(1)(b) for its costs in connection with that application and its withdrawal, the Tribunal refused that application at the hearing. Written reasons for that refusal were signed by the judge on 15 October 2022 and sent to the parties on 28 October 2022.[3]The Tribunal notes that that costs decision was recorded as an Order rather than a Judgment, as it should have been. For the purposes of the present application, reconsideration has proceeded on the basis that the costs decision is a Judgment rather than an Order.[4]A timely written application for reconsideration of that refusal was made by the respondent on 10 November 2022 under rule 71. In support of that application, emails dated 14 March 2022 and 28 March 2022 between the parties were provided. The application for reconsideration was opposed by the claimant in writing on 17 November 2022. The application and the response to it are incorporated into these reasons by reference. The respondent’s application for reconsideration[5]The application is on the basis that it is necessary in the interests of justice to reconsider the judgment on costs (rule 70).[6]The respondent’s position is that the main thrust of the claimant’s argument at the costs hearing was that having received the respondent’s costs application on 6 September 2022 and having no prior indication that he was at risk of costs the claimant reflected on his position and reasonably withdrew his application to amend the claim on 6 September 2022 in order to mitigate the risk of costs against him. It was suggested that he had not been aware of the potential costs risks before the respondent’s formal application on 6 September 2022, apart from this being “intimated” the week before In an email of 2 September 2022. It was therefore submitted that the claimant’s conduct was not unreasonable in withdrawing his application the working day before the hearing in the circumstances given the late warning that he was at risk of costs.[7]The respondent suggests that these representations were incorrect. The respondent’s position is that the parties exchanged many emails between the date of the application to amend the claimant’s claim in November 2021 and the hearing in September 2022. Many of these emails dealt with an extensive dispute between the parties about whether the new claims should be included in the list of issues. Reliance is placed upon “at least two” of these emails dated 14 March 2022 and 28 March 2022 that the respondent considered the claimant’s application to introduce new claims to be unreasonable and misconceived; and that it intended to apply for costs once the matter proceeded to a preliminary hearing.[8]Despite the existence of these emails, the respondent asserts, the claimant’s position gave the distinct impression that the claimant had no prior knowledge before September 2022 that he was at risk of costs and that the respondent’s costs application on 6 September 2022 was made without any prior warning. The respondent referred to the claimant’s submissions as to the chronology. It is said that no reference was made to the emails of 14 March 2022 and 28 March 2022. These emails were not in the format of a formal costs warning letter. However, the emails in the context of the exchanges between the parties at the time made it clear that the respondent considered the claimant’s conduct to be unreasonable and that it intended to apply for costs in respect of the claimant’s application to amend the claim. See also the email of 2 September 2022.[9]The respondent’s position is that the claimant’s submissions were material in the decision by the Tribunal not to award costs. The judge made reference in his oral judgment to the chronology in determining the reasonableness of the claimant’s actions. The judge indicated that had a costs warning been given earlier it might have changed the outcome. Further reference is made to the written reasons at paragraphs 39 and 41.[10]It is not suggested that the Tribunal was deliberately misled.[11]The respondent appreciates that the emails are not “new evidence”, and that the Tribunal might consider that the emails should have been made available during the preliminary hearing on 12 September 2022. It also appreciates that there should normally be finality in litigation. However, the respondent contends that it was taken by surprise by the claimant’s incorrect submissions at the hearing that he had not been put on notice of the costs risks of his application to amend before September 2022; and that the respondent’s application on 6 September 2022 was thus the reason for him withdrawing his application so late in proceedings. Had the respondent been aware that this argument would be advanced it would have ensured that the emails from March 2022 were available to the Tribunal during the hearing.[12]The respondent and the claimant were both represented by counsel at the hearing. The respondent’s solicitor was also present. It was a relatively short hearing. There had been extensive emails between the respondent’s solicitor and the claimant’s solicitor in the 10 months between the claimant making his application in November 2021 and the hearing in September 2022. There was not enough time during this hearing for the respondent’s solicitor to go through all of these emails to check whether the respondent had ever put the claimant on warning of costs. It was only after the hearing and checking through the email exchanges that the respondent’s solicitor found the relevant emails.[13]The respondent emphasised that the importance of receiving accurate submissions based on the facts so that a Tribunal can make sound judgments is essential to justice. It is in the interest of justice, and in accordance with the overriding objective, to vary the judgment by ordering that the claimant be liable for the respondent’s costs. The claimant’s response to the application for reconsideration[14]The claimant’s response to the application for reconsideration is dated 17 November 2022. It is not necessary to set out that response here in the same detail as the application for reconsideration itself. The following points emerge from the response.[15]First, if the respondent intended to advance an application for costs based upon unreasonable conduct in not withdrawing the application to amend sooner then that argument should have been advanced in addition to the argument based upon the application to amend having no reasonable prospect of success.[16]Second, it follows from that first point that the respondent should have ensured that all relevant information should be available to the Tribunal in the hearing bundle. The email material upon which the respondent now relies is not “new evidence”.[17]Third, as the respondent was represented at the hearing by both counsel and solicitor, they could have sought to introduce that evidence or to seek an adjournment in order to allow them to do so or to clarify the position.[18]Fourth, as found in paragraphs 29 and 36 of the written reasons for the original decision, there was no formal costs application prior to that of 6 September 2022. The claimant has not misled the Tribunal or misrepresented material facts.[19]Fifth, even if the emails had been considered, they would not have affected the decision. It was a sensible litigation decision for the claimant to withdraw his application to amend. Reliance is also placed on paragraphs 33 and 41 of the written reasons. Relevant legal principles[20]The overriding objective in rule 2 of the Tribunal’s procedural rules enables the Tribunal to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable,(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. The Tribunal shall seek to give effect to the overriding objective in interpreting or exercising any power given to it by the procedural rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and shall co-operate generally with each other and with the Tribunal.[21]Rule 70 provides that a Tribunal may on the application of a party reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the original decision may be confirmed, varied or revoked. If it is revoked it may be taken again. Rule 71 requires the application to set out why a reconsideration is necessary.[22]Rule 72(1) requires an Employment Judge to consider any application made under rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused, and the Tribunal shall inform the parties of the refusal. Otherwise, the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing.[23]If the application has not been refused at that stage, the original decision shall be reconsidered at a hearing, unless the Employment Judge considers, having regard to any response to the notice provided under rule 72(1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. Where practicable, the reconsideration shall be by the