Mr Anderson and others v Tyne and Wear Passenger Transport Executive T/a Nexus (‘Nexus’): 2500752/2015
JUDGMENT
[1]The Respondent’s application for costs under rules 75 to 78 of the ETs (Constitution & Rules of Procedure) Regulations 2013 is well founded and succeeds.[2]The Claimants are ordered to pay the Respondent the sum of £3,250 plus vat in respect of costs.REASONS
[1]By email dated 18 June 2021, the Claimants’ solicitors made an application to amend six Claim Forms, namely: 1.1. Anderson & 69 Others v Nexus (2500752/15) – presented on 19 June 2015; 1.2. Nicholson & 5 others v Nexus (2501650/15) – presented on 05 November 2015; 1.3. Bolam & 28 Others v Nexus (2501719/18) – presented on 10 September 2018; 1.4. Henderson & 1 Other v Nexus (2502236/19) – presented on 04 July 2019; 1 of 8 1.5. Smart v Nexus (2502696/19) – presented on 31 October 2019; 1.6. Shilling & 3 Others v Nexus (2503709/19) – presented on 13 September 2019;[2]The Respondent objected to the application.[3]By emails dated 14 and 22 July 2021, the Claimants’ solicitor, Mr Guss, agreed that matters should be stayed generally in respect of the listing of a remedy hearing but asked for the amendment application to be considered as a separate issue at this stage.[4]On 07 August 2021, the Tribunal sent to the parties a notice of preliminary hearing to be held on 22 October 2021, giving a time estimate of 2 hours. The hearing was to decide on the amendment application. At 18:53, on Monday 18 October 2021, the Claimants’ solicitors applied to extend the hearing on 22 October to a 1 day hearing or, if that was not possible, to postpone it. They had first raised this issue with the Respondent’s solicitors at 18.34 on Friday 15 October 2021. Mr Reade QC had by then been instructed by the Respondent to represent it at the preliminary hearing. He was unavailable in the afternoon of 22 October. The Respondent invited the Tribunal to note that, should the matter be moved to a later date, it would like the Tribunal to consider a costs application in respect of that element of counsel’s brief fee. On 19 October 2021, Employment Judge Martin postponed the hearing, and I shall refer to it as the ‘postponed hearing’. The matter could not be relisted until 11 March 2022. The Notice of Hearing dated 26 October 2021 stated that at the hearing, an Employment Judge will decide on the claimants’ application to amend the claims and the respondent’s application for costs. Preliminary Hearing on 11 March 2022[5]The application came before me on 11 March and took the best part of the day. I reserved my decision and set aside a date to determine the application. Very shortly before that date, I contracted Covid and was unwell. Upon returning to consider the matter on 11 April 2022, I noted two points on which I invited further submissions from counsel. There was then a further delay through a combination of work and annual leave before I was able to return to the application. I apologised to the parties for the time it has taken to communicate my decision to them. Relevant law[6]The tribunal’s power is considered the 2013 rules of procedure and in particular within rules 75 to 84.[7]Under rule 76(1)(c) “a tribunal may make a costs order… And shall consider whether to do so where it considers that‘a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins’ 2 of 8[8]Therefore, although in such circumstances the Tribunal has a duty to consider whether to make a costs order, the actual decision whether to make one or not is discretionary.[9]In the case of Yerrakalva v Barnsley Metropolitan Council [2012] I.C.R.420, the Court of Appeal emphasised that, when considering a costs application, it was important not to lose sight of the totality of the circumstances. The tribunal must look at the whole picture when exercising the discretion to award costs or not. It must ask whether there has been unreasonable conduct in the bringing, defending or conducting the proceedings or part thereof and, in doing so, identify the conduct, what was unreasonable about it and what was its effect. Reasonableness is a matter of fact for the tribunal which requires an exercise of judgement. Yerrakalva was a case under rule 40 of the ET Rules of Procedure 2004, which did not contain a direct equivalent to rule 76(1)(c) of the 2013 Rules.[10]Even if the threshold tests for an order for costs are met, the Tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances.[11]Rule 84 of the ET Rules expressly confers on the Tribunal a discretion to have regard to the paying party’s means. It is not obliged to do so. Respondent’s submissions[12]The Respondent’s costs application is made pursuant to Rule 76(1)(c) ET Rules 2013. It is based on what Mr Reade submitted was the unreasonable late application to extend the length of or postpone the preliminary hearing of 22 October 2021. Mr Reade further submitted that, if I decided to defer all applications to amend, the Respondent may seek all of their costs in responding to that application. However, the only application before me was in relation to Mr Reade’s brief fee in respect of the postponed hearing.[13]The application to postpone was prompted by the claimants. Mr Reade referred to the date and timing of the original correspondence, namely after close of business on Friday evening, when the issue regarding the length of hearing was first mooted. The Respondent replied on 18 October 2021, page 299, referring to the fact that it had incurred a brief fee. Mr Reade acknowledged the hearing of the application has taken longer than 2 hours but submitted that it was the Claimants’ application and at the time the amendment application was made, the Respondent understood that it was on the basis that these were not ‘new’ causes of action. Based on the arguments which they in fact advanced at today’s hearing, the Claimants’ representatives ought to have realised long before 15 October 2021 that the hearing would take longer than two hours. As it is, they made application less than 7 days. Counsel’s brief fee for the postponed hearing was £6,500 and the Respondent ought to be entitled to the costs of the late application for the adjournment. Mr Reade emphasised that there was no explanation for the lateness of the application and that, although the Respondent would have incurred that fee in any event, because of the delay in having the hearing relisted (between 22 October 2021 and 11 March 2022), no allowance should be made for that, and the Respondent should be reimbursed the full fee. 3 of 8 Claimants’ submissions[14]Ms Stanley accepted that it would have been better if the application to extend the length of the hearing/alternatively postpone it, had been made sooner However, she submitted that both parties have an obligation to consider if a listing appropriate; and that both were or ought to have been aware of the issues to be advanced. Ms Stanley referred me to page 280. The Respondent, she says, knew that there was a time limit issue; this was never going to have been a hearing that could be completed in two hours. She observed that, although I had read before substantially before the hearing began, that was fortuitous and not always possible. The listing did not allow for any pre-reading. She reminded me that she finished her submissions at about 11.40am; that Mr Reade spoke for about 50 minutes and she had a short reply. These timings should have been anticipated by the Respondent. It would, submitted Ms Stanley, have been unhelpful if the postponed hearing had started but gone part heard. The Claimants should not be penalised as it was they who took steps to combat this. Her instructing solicitors took appropriate steps and invited a joint application. She also referred me to pages 306, 308 and 311. This is not an appropriate case for costs.[15]If I was not with her, then only a portion of the brief fee of £6,500 was wasted by the postponement. She further submitted that senior counsel was not required for this hearing, observing that there is also junior counsel who has appeared on behalf of the Respondent in the High Court. In short, it would have been reasonable to instruct junior counsel and not to allow a fee for senior counsel’s attendance. Discussion and conclusion[16]The application to postpone was made by the Claimants less than 7 days before postponed hearing. Therefore, pursuant to rule 76 I must consider whether to make a costs order.[17]In doing so, and in keeping with the guidance in Yerrakalva, I have asked myself has there been unreasonable conduct in the making of the application less than 7 days before the postponed hearing, what was it and what was the effect of it? I have then asked whether, having regard to all the circumstances of the litigation, I should exercise my discretion to award costs and if so, what amount. Did the Claimants’ solicitors act unreasonably in leaving it so late to make the application?[18]In my judgement, the Claimants’ solicitors did act unreasonably in leaving it to 18 October 2021 before applying to extend the length of hearing/postpone the hearing. I note that in paragraph 4 of the notice of hearing sent to the parties on 07 August 2021, it states: ‘The hearing will last about 2 hours. If you think that is not long enough, you must write to the Tribunal as soon as possible.’ It was not until just over 10 weeks’ after that notice of hearing that the Claimants’ solicitors applied to extend the length or alternatively postpone the hearing. The first indication of the need for a longer hearing came in the Claimants’ solicitor’s email of 15 October 2021 [page 296] after normal business hours. The email says ‘on reflection….2 hours….is going to be insufficient…’. There was no explanation given, either in the application, or at 4 of 8 this hearing, as to why it was only on 15 October 2021 that consideration was given to the issue. The Respondent had considered two hours to be sufficient. As far as they were concerned, the application was simply to be advanced on the basis that they were not new causes of action and were ongoing claims and that any submissions on time points would not take up significant time.[19]In the application to the Tribunal on pages 306-307, the three points which the Claimants’ solicitors made in support of the application were, and ought to have been apparent to them and/or their counsel either at the time the application was made or soon after the application. To leave it until 15 October to ‘reflect’ on the length of hearing was, in my judgement, unreasonable. What was the effect of that conduct?[20]The effect is obvious in a case which is, to borrow the phrase ‘heavily lawyered’, and that is the incurrence of legal fees. In its email of 18 October 2021, Mr Burns referred to having incurred counsel’s brief fee, which will not be ‘wasted in its entirety if we postpone….’ The whole circumstances of the litigation[21]In considering the exercise of my discretion, I have considered carefully Ms Stanley’s submissions about the complexity of the litigation (including the High Court litigation) as well as her submission that both parties bear responsibility for time estimates and that the Claimants could have proceeded to the hearing only for it to go part heard.[22]However, this was the Claimants’ application and they were best placed to know what arguments they were to advance at the hearing. The litigation may be complex but the question of applying one’s mind to the length of hearing and the need to do so at a fairly early stage is not complex. I have regard to the fact that attention was drawn to the need to alert the Tribunal to problems with the length of hearing as soon as possible. I also have regard to the fact that there has been no explanation as to why it took so long after the notice of hearing to reflect on matters and to realise that the hearing would require longer than two hours.[23]Given those matters and the effect on the Respondent, I considered it appropriate to exercise my discretion in favour of awarding costs in respect of the postponed hearing. The amount of costs[24]I next consider what level of costs to award. I considered Ms Stanley’s submission on the need for senior counsel. However, given the value of the sums involved in this litigation, and on the basis of Ms Stanley’s submission that the litigation is complex, I did not consider it unreasonable for the Respondent to instruct senior counsel.[25]However, I did not agree with Mr Reade that the Respondent should recover his full fee. Even though there was a delay of almost 5 months between the date of the postponed hearing and 11 March 2022, I consider that much of the preparation for 5 of 8 the postponed hearing had not been wasted, as Mr Burns put it in his email. The passage of time would certainly have an effect on that, but not, in my judgement, to the extent submitted by Mr Reade.[26]I consider it appropriate, in all the circumstances, to award the Respondents’ 50% of Mr Reade’s brief fee, namely, £3,250 plus vat. Employment Judge Sweeney 15 June 2022 Schedule Case Number Claimant Name 2500752/2015 Mr Steven Anderson 2500753/2015 Mr Steven Anderson 2500754/2015 Mr Gordon Armstrong 2500755/2015 Mr Keith Armstrong 2500756/2015 Mr Michael Bates 2500757/2015 Mr Andrew Bell 2500758/2015 Mr Paul Bootle 2500759/2015 Mr Michael Broadley 2500760/2015 Mr Neil Burgon 2500761/2015 Mr Simon Butroid 2500762/2015 Mr Philip Carr 2500763/2015 Mr Brian Charlton 2500764/2015 Mr Jonathan Chisholm 2500765/2015 Mr Philip Clarkson 2500766/2015 Mr Daniel Collins 2500767/2015 Mr Daniel Convery 2500768/2015 Mr Michael Cooney 2500769/2015 Mr Simon Davison 2500770/2015 Mr Martin Delaney 2500771/2015 Mr Michael Devlin 2500772/2015 Mr James Douglass 2500773/2015 Mr Jeffrey Drape 2500774/2015 Mr John Fallon 2500775/2015 Mr Paul Fraser 2500776/2015 Mr John Gibson 2500777/2015 Mr Alan Goldie 2500778/2015 Mr John Goodwin 2500779/2015 Mr Len Hagelburg 2500780/2015 Mr Arron Hindmoor 2500781/2015 Mr Paul Hitch 2500782/2015 Mr Jason Howard 2500783/2015 Mr James Hynes 2500784/2015 Mr Peter Jackson 2500785/2015 Mr Nicholas Keenan 2500786/2015 Mr Peter Littlewood 6 of 8 2500787/2015 Mr Graeme Loncon 2500788/2015 Mr Colin Lowery 2500789/2015 Mr James McCarthy 2500790/2015 Mr Stephen Menzies 2500791/2015 Mr John Murphy 2500792/2015 Mr Colin Owen 2500793/2015 Mr Alexander Perkins 2500794/2015 Mr Robert Potts 2500795/2015 Mr Neil Pringle 2500796/2015 Mr Michael Pugh 2500797/2015 Mr Philip Qualie 2500798/2015 Mr Anthony Reay 2500799/2015 Mr Mark Redhead 2500800/2015 Mr Lee Reynolds 2500801/2015 Mr Michael Ridley 2500802/2015 Mr Anthony Robison 2500803/2015 Mr Mark Rochester 2500804/2015 Mr Kristopher Ross 2500805/2015 Mr Clive Scott 2500806/2015 Mr Robin Shortt 2500807/2015 Mr Michael Slee 2500808/2015 Mr Ronald Spark 2500809/2015 Mr Kevin Stephen 2500810/2015 Mr Paul Strachan 2500811/2015 Mr Stefan Stuart 2500812/2015 Mr Trevor Symington 2500813/2015 Mr Ashley Temple 2500814/2015 Mr Robert Thompson 2500815/2015 Mr Daniel Watkins 2500816/2015 Mr Antoni Wegrzyn 2500817/2015 Mr Malcolm Weightman 2500818/2015 Mr Stephen White 2500819/2015 Mr Jon Whitehouse 2500820/2015 Mr Ralph Wilson 2500821/2015 Mr Colin Young 2501650/2015 Mr Peter Nicholson 2501651/2015 Mr Brian Snowball 2501652/2015 Mr Peter Cullen 2501653/2015 Mr Brian Lightfoot 2501654/2015 Mr Paul Dyson 2500150/2016 Mr Gary Crawford 2501719/2018 Mr Jonathan Bolam 2501720/2018 Mr Michael Davison 2501721/2018 Mr David Purvis 2501722/2018 Mr Nathan Mark Williamson 2501723/2018 Mr James Cotter 2501724/2018 Mr Paul Gibson 2501725/2018 Mr Kristopher Rutherford 7 of 8 2501726/2018 Mr James Stephen Sykes 2501727/2018 Mr Kevin Kirton 2501728/2018 Mr Terence Richardson 2501729/2018 Mr Christopher Stephen 2501730/2018 Mr Paul Brown 2501731/2018 Mr Mark James Hallas 2501732/2018 Mr Andrew Moffat-Clayton 2501733/2018 Mr Ian James Williamson 2501734/2018 Mr Liam James Atkinson 2501735/2018 Mr Michael Mason 2501736/2018 Mr Bryan Nesbitt 2501737/2018 Mr Mark James Robson 2501738/2018 Mr Matthew Scott Warkcup 2501739/2018 Mr Mark William Watt 2501740/2018 Mr Daniel Appleby 2501741/2018 Mr Josiah Clark 2501742/2018 Mr Owen Pemberton 2501743/2018 Mr Christopher Bates 2501744/2018 Mr Kris Donnelly 2501745/2018 Mr Johnson Harrison 2501746/2018 Mr Paul Wilson 2501747/2018 Mr Simon Wood 2501748/2018 Mr Paciencio Madjus 2500264/2019 Mr Paul Hancock 2502236/2019 Mr Lee Henderson 2502237/2019 Mr John Drummond 2502696/2019 Mr Ben Shilling 2502697/2019 Mr Michael Symes 2502698/2019 Mr Jason Thompson 2502699/2019 Mr Conner Wilson 2503709/2019 Mr Daniel Smart 2500144/2021 Mr Trevor Errington 8 of 8