Mr S D'Auvergne and others v Metroline Travel Ltd and Arriva London North Ltd: 3305361/2020 and others
JUDGMENT
[1]The claimants’ claims are struck out.REASONS
[2]This was the hearing which I directed on 4 January 2023. It was originally listed to take place on 14 February, but due to a mistake for which I alone am responsible, and for which I apologise, was postponed to the present date.hearing.
[3]After the hearing on 4 January it was confirmed by separate judgment that all claims brought by the former C3 and C4 (Mr Khan and Mr Chime respectively) were dismissed on withdrawal, and that all claims of all claimants against the former second respondent (Arriva) were also dismissed on withdrawal.[4]After the January hearing, I had directed Mr Coward (C5) to show cause in writing why his claim should not be struck out. He had been dismissed in April 2017 and these proceedings were presented in June 2020. His claim was Case Numbers: 3305361-365/2020 & 3304288-2022 2 plainly out of time by over three years. There had been no reply from Mr Coward, and his claim was therefore struck out on grounds that it was presented significantly out of time, and the claimant had brought forward no material to show that it had not been reasonably practicable for it to have been presented within time; alternatively, the claimant was in default of the order of 4 January 2023 to show cause to the contrary.[5]This hearing proceeded on the basis that the only claimants were Mr D’Auvergne and Mr Dyte, and that Metroline was the only respondent.[6]At the end of the January hearing, there was uncertainty about the status of the claimants’ appeal against the second judgement of Employment Judge Skehan. In April 2023 the EAT confirmed that a notice of appeal had been received, but that it was deemed 660 days out of time (a purported notice received within the primary time limit was incomplete). That matter remains in the hands of the claimants’ solicitors to deal with. I proceeded on the basis that Judge Skehan’s second judgement stands, at date of this hearing, as the final word about the claimants’ first case.[7]On 14 February Mr D’Auvergne informed the tribunal that he was represented by Messrs Samuel Louis solicitors. Mr D’Auvergne failed to copy that email to the respondent, and the tribunal staff overlooked to do so.[8]At the end of this hearing, when arrangements were made for a costs hearing, Ms Norris expressed concern about the communication arrangements on behalf of the claimants. She said that she had not had confirmation from Messrs Samuel Louis of the identity of all their clients, and it was not clear if they represented Mr Coward today. Mr Wareing had confirmed that while he represented Mr D’Auvergne and Mr Dyte (both of whom were present by CVP) he did not represent Mr Coward.[9]For that reason, by separate order, I directed that Ms Norris is at liberty to correspond about this matter directly with Mr Coward, Mr Khan and Mr Chime. I will ask the tribunal office to do likewise. If it transpires that any of them is professionally represented, the arrangements can be changed.[10]At the start of this hearing, I asked Mr Wareing to categorise the heads of these claims. I drew his attention to the helpful categorisations given by Regional Employment Judge Byrne and by Judge Skehan in the claimants’ first case, and I asked for the like information in relation to this claim. Mr Wareing did not have instructions, and I adjourned for an hour to enable him to take instructions. Having heard his submissions, and after a brief contribution from Ms Norris, the claims were struck out. Ms Norris applied for costs, and a separate case management order has been made, in which that application is listed. It is listed as against all five original claimants. Background to this hearingaward.
[11]The background chronology is as follows: - Case Numbers: 3305361-365/2020 & 3304288-2022 311.1 The claimants were bus drivers. They worked on the 168 London route which on 26 September 2015 transferred from Arriva to Metroline. It was agreed that that event was a transfer within the meaning of TUPE.11.2 They presented their first ET1 on 14 August 2017. It was in short a complaint that before and following the transfer in 2015, their rights under TUPE had not been honoured. In particular, they complained that Metroline had not paid them fully or properly in accordance with their entitlements under Arriva’s pre-transfer systems. The claimants acted in person, with Mr D’Auvergne as their lead.11.3 A first preliminary hearing took place on 6 November 2017 before Judge Byrne. A number of claims were withdrawn. Judge Byrne explained a number of the legal errors in the ET1 and listed the hearing for July 2018.11.4 The hearing came before Employment Judge Bartlett on 3 July 2018. It was not ready to proceed. Judge Bartlet obtained further clarification and re-listed the hearing for three days the following February. The matter came before Employment Judge Skehan on 11 to 13 February 2019. A number of the heads of claim were withdrawn. Judge Skehan determined the remainder of the claims, all of which failed except for a claim for meal relief allowance.11.5 The respondent appealed against the judgment on meal relief allowance. The claimants were represented by counsel in the EAT. By judgment of 30 January 2020 the EAT allowed the appeal. The claim for meal relief allowance was remitted to the same Judge for rehearing.11.6 In September 2020 a third preliminary hearing took place, to make arrangements for the remitted hearing.11.7 On 21 February 2021 Judge Skehan heard and rejected the remitted claims for meal relief allowance. The claimants’ out of time appeal against that judgment is referred to above.11.8 C2, C3 and C4 have at all times remained employed by Metroline. C1 was dismissed in 2020 and C5 was dismissed in 2017.11.9 The present claim was presented on 8 June 2020 ie, within three months of Mr D’Auvergne’s dismissal, and while the remitted hearing awaited listing. All five claimants are named on the claim form.11.10 On 7 April 2022 Mr Dyte submitted the second claim, in which he is the only claimant. It seemed to me a continuation of his complaints in the 2020 claim, without any new factual or legal claim. Case Numbers: 3305361-365/2020 & 3304288-2022 4Discussion
[12]The heart of these claims is straightforward. All the claimants have claimed that following the transfer of September 2015, Metroline has miscalculated their pay, and that as result they have been significantly underpaid, by comparison with their earnings before the transfer, and therefore that since the transfer, they have not received the sums to which they were contractually entitled.[13]The claimants have acted in person. They have formulated these complaints as claims of breach of contract, or in the alternative as claims for unlawful deductions.[14]It is apparent from the orders of Judge Byrne, and from the judgements of Judge Skehan, that both judges took great pains to translate the simple complaint of having been underpaid into types of claims in law which the tribunal has jurisdiction to hear. Judge Byrne took considerable steps to categorise the claims as they were expressed to him, and Judge Skehan’s judgements, which are lengthy, and which I do not seek to summarise, dealt with separate categories of the underpayment claims in detail.[15]Both Judge Byrne and Judge Skehan approached the first case on the basis that, making every allowance for the claimants as litigants in person, the 2017 claims were viable only as claims for unlawful deductions, and went forward on that basis.[16]In the present 2020 claim, Mr Coward’s claim was significantly out of time on any view. Messrs Dyte, Khan and Chime remained employed by the respondent at date of presentation of the ET1, and therefore could not bring claims for breach of contract; and none of the claimants had status to bring a claim under the provisions of TUPE. As Ms Norris correctly put it in submission, the only claimant whose claim of breach of contract was both in time and within the jurisdiction of the tribunal was Mr D’Auvergne. I agree that as a result the only claims in the 2020 ET1 which the tribunal had power to hear were claims for unlawful deductions brought by all claimants, and Mr D’Auvergne’s claim for breach of contract.[17]The two claim forms before me at this hearing were expressed in broad general language. They referred to a TUPE transfer and to an alleged breach of TUPE obligations. They complained that pay obligations had not been met, and therefore that the claimants had been underpaid, but neither ET1 gave any indication of how that general complaint was made up in money terms. For that reason, I adjourned so that Mr Wareing and the claimants could answer my question, which was, broadly, how do you classify or categorise the sums which you say are owing to you.[18]After the adjournment, Mr Wareing gave the following answers. Dealing first with legal classification, he said that the claims of Mr D’Auvergne and Mr Dyte were pursued as claims of unlawful deductions, alternatively in Mr D’Auvergne’s case as a claim for breach of contract. The claims were that the Case Numbers: 3305361-365/2020 & 3304288-2022 5 deductions followed from the 2015 TUPE transfer, and the claimants as litigants in person may have mistakenly described them as claims brought under TUPE.[19]Mr Wareing then turned to the factual classification. He explained that the claims related in their entirety to the system of payment. He explained that each claimant had a period of seven hours 36 minutes on duty for which he received basic shift pay. The claimants contended that before the transfer Arriva paid them additional sums, expressed as a range of allowances, for time worked in excess of seven hours 36 minutes per shift. Their complaint was that following the transfer, the claimants were not paid for more than seven hours 36 minutes per shift. Mr Wareing illustrated the consequences starkly and clearly: working an eight-hour shift meant having to work for 24 minutes unpaid; a 10-hour shift meant two hours 24 minutes unpaid; and a 12 hour shift meant four hours 24 minutes unpaid. The claimants assert that this has been the case since 2015.[20]I record that I expressed some scepticism about this. I was surprised, given the job market for bus drivers in London, that Metroline could retain drivers who were regularly called upon to work up to in excess of four hours per shift without pay. I added my scepticism that the trade unions which represent drivers (traditionally Unite and the GMB) would acquiesce in such a system.[21]However, that was not the matter before me. Mr Wareing’s first point was that this claim of underpayment had, as a result of the mistakes and misunderstandings of litigants in person, been put to Judge Skehan as a claim brought under TUPE. He said that the reality was that it should have been advanced as a claim of unlawful deductions, but was not. The present claim was therefore not an attempt to re-litigate the 2017 claim.[22]I could not accept that submission. The first line of the first paragraph of Judge Skehan‘s first Reserved Judgement reads: “The claimants’ claims for unauthorised deductions from wages contrary to section 13 ...” That was plainly the jurisdiction engaged by her judgement.[23]I then went on to consider whether the factual substance of these claims had been engaged and decided by Judge Skehan. The bundle contained her 16- page judgement, and while I do not set out every reference, I note her paragraph 2.3, which states: “All claimants claim that their pay has been calculated incorrectly..”.[24]Of greater substance was the portion of Judge Skehan’s judgement headed “calculation of pay” which occupied paragraphs 29 to 38 and 46 to 57 inclusive. It stands and speaks for itself, and I do not seek to repeat or paraphrase. I comment only that her description of the respondent’s pay system as “convoluted” seems, by some distance, a flattering understatement.[25]Taken as a whole, it seemed to me clear that Judge Skehan had before her(1) the issue of basic shift time (the seven hours 36 minutes);(2) the related issue of designation of time worked beyond the seven hours 36 minutes, and(3) the Case Numbers: 3305361-365/2020 & 3304288-2022 6 central issue of whether, and how, that additional time was to be paid for. In her analysis, she has repeatedly written that the respondent’s methods of calculation are correct, and she repeatedly rejected the claimants’ submissions as to how payments should have been calculated. She did not uphold any claims for sums due and outstanding, apart from the claims for meal relief allowance.[26]I find that the issues which the claimants asked to be determined in the present case have been litigated before, and determined by, Judge Skehan; and, with one exception, were not the subject of the first appeal, and therefore were not pursued by any claimant before the EAT.[27]The same is true of meal relief allowance, with the qualification that the EAT remitted that question to Judge Skehan for a second decision. Having upheld the claim at the first hearing, she rejected it after the remittal at the second hearing; and that judgment is now the subject of a significantly out of time appeal. I proceed on the basis that it is a claim which has been determined, and I make no allowance for the existence of the appeal.[28]In detailed submissions, Ms Norris had written that the issues presented in the present case should not be permitted to proceed by application of the principles of issue estoppel; and / or of the principle of res judicata; and / or by application of the principle in Henderson v Henderson.[29]These approaches express a simple principle: a claimant has the right to fight their case once and once only, and, if dissatisfied with the outcome, has rights of appeal; but having pursued those avenues to their conclusions, no claimant has the right to re-litigate the same claim or substantially the same claim more than once; and that any attempt to do so is an abuse of the process of the Court or tribunal.[30]I accept Ms Norris’s submission that consideration of the claimants’ case, in the light of Mr Wareing’s explanation and clarification today, leads to the same conclusion, whichever of those routes is followed. It seems to me that the issues which the claimants wish to litigate in the present cases have been litigated and determined in their 2017 case, and that their attempt to re-litigate them is an abuse of the process. Both claims are therefore struck out in their entirety.[31]I considered whether to take a slightly different course in relation to the meal relief payment, and whether to stay that part of the claim pending the outcome of the EAT appeal proceedings. It did not seem to me in the interests of justice to do so.[32]I noted in particular the respondent’s concession to Judge Byrne, to the effect that if any claims were successful, they would be paid up to the date of the final hearing before Judge Skehan. This would avoid the claimants having to resubmit claims every three months. Ms Norris did not have express instructions on how and where that concession stood today, but it seemed to me to form part of Judge Skehan’s judgement, and may need to be revisited in Case Numbers: 3305361-365/2020 & 3304288-2022 7 the event of the outstanding EAT appeal proceeding to a successful outcome for the claimants.[33]I add that it made no difference to this analysis or outcome that Mr D’Auvergne’s claim was expressed in the alternative as a claim for breach of contract, as Judge Skeehan had concluded that all sums contractually due had been paid to him. _____________________________ Employment Judge R Lewis Date: 4 September 2023 Sent to the parties on: 2 October 2023 For the Tribunal Office Case Number: 3305361-365/2020 & 3304288-2022 1 EMPLOYMENT TRIBUNALS Claimant Respondent 1. Mr S D’Auvergne 5. Mr P Coward v Metroline Travel Limited Heard at: Watford by CVP On: 15 December 2023 Before: Employment Judge R Lewis Appearances For the Claimants: C1 In person, C5 no attendance or representation For the Respondent: Ms H Norris, solicitorDiscussion
[1]Ms Norris asked for written reasons after judgment had been given.[2]This was the costs hearing listed after I struck out these claims on 21 August 2023 and issued a case management order in respect of thishearing.
[3]At the August hearing, Ms Norris advised that she wished to apply for costs against all five original claimants. At the start of this hearing, she advised that the respondent had compromised its application against the other three former claimants, and did not pursue any application against any of them today.[4]Mr Coward did not attend and was not represented. Mr D’Auvergne said that he could speak on his behalf but was not a formal representative. Later in the hearing he said that he had last spoken to Mr Coward at about the Case Number: 3305361-365/2020 & 3304288-2022 2 time of the lockdown, which I take to be in advance of presentation of the ET1 on 8 June 2020, and therefore some 3 ½ years before this hearing.[5]I was satisfied that Mr Coward had been made aware of this hearing, through information provided to him at his home address by the respondent. The ET1 did not contain a telephone number or email address for him, and Mr D’Auvergne said that Mr Coward is in poor health, and has not responded to any recent attempts by Mr D’Auvergne to make contact with him. In those circumstances, it did not seem to me that the tribunal was required to take more steps in accordance with Rule 47, and I was able to proceed.[6]Ms Norris had prepared an extended bundle, and a written application. Mr D’Auvergne confirmed that he had received both. Ms Norris gave oral submissions. I offered Mr D’Auvergne a short adjournment to enable him to prepare his reply, but he said that that was not necessary and replied straight away. After an adjournment, I gave judgment.[7]Ms Norris’ submission followed two broad strands. One was the merits strand. She submitted that it was evident that from the outset this claim had had no prospect of success, because it was an attempt to relitigate the claims heard and decided by Judge Skehan, as well as being based on a significant misunderstanding of TUPE and being several years out of time in part at least.[8]Related to that strand was Ms Norris’ submission that the respondent had throughout made these points directly and clearly to the claimants, so that they might take advice and understand the weakness of their position. She referred not just to the pleadings and skeletons, but to correspondence, and a number of offers of a “drop hands” arrangement.[9]The second and related strand was that the proceedings had, in Ms Norris’ submission, been conducted unreasonably by Mr D’Auvergne on behalf of all the claimants. Ms Norris meticulously identified a history of noncooperation and prevarication on his part, which she submitted constituted unreasonable conduct, beyond the usual difficulties of a litigant in person. In particular, she submitted that the difficulties had continued even after the claimants were professionally represented by solicitors.[10]She submitted that it was overall in the interests of justice to make anaward.
[11]Mr D’Auvergne in reply insisted that the fundamental claim heard and decided against the claimants by Judge Skehan was well founded, and that transferred drivers were still today not being paid their due entitlement. He said that it had been ‘proven’ that there was a shortfall in pay, and that his union had advised him that he had the right to bring a second claim. The former remark was simply wrong; and the latter, in labstract, was a statement of the obvious. Case Number: 3305361-365/2020 & 3304288-2022 3[12]He had thought that the guidance which I expressed on 4 January 2023 and which Ms Norris set out in an email to him of 5 January 2023, had related to the claim against Arriva only and not to the totality of the claim. I do not agree that that was a reasonable interpretation either of what I said or of Ms Norris’ written summary of my remarks.[13]He accepted that there had been shortcomings in the conduct of his former solicitors, which he attributed to “below par” communication with the solicitors whom he had for a period instructed.[14]He had produced no information or evidence about means (as provided for in my case management order of August) but said that he had no issue with payment and referred to a monthly figure (I explained that I had no power to order instalment payments).[15]He had no separate information to give by way of reply on behalf of Mr Coward. I deal briefly with Mr Coward’s position first.[17]It appears that the claimant had Mr Coward’s authority to name him on the claim form, and that he got this authority at some point late in the lockdown and before presenting the claim on 8 June 2020. Thereafter I have no evidence whatsoever of anything said or done by Mr Coward as an individual. The tribunal’s and respondent’s sole channel of communication with him, such as it was, was Mr D’Auvergne. I have no evidence of communications between Mr D’Auvergne and Mr Coward. I find that any advice which Mr D’Auvergne gave to Mr Coward about any aspect of law or procedure was probably wrong, and certainly distorted by Mr D’Auvergne’s unshakeable conviction that he had been wronged.[18]Although it was plainly unreasonable of Mr Coward to present a claim for unfair dismissal some years after dismissal, I can go no further in any analysis of his conduct. The tribunal strikes out many cases which are out of time without making a finding of unreasonable conduct, or making an award of costs. I do not have sufficient material to find that as an individual Mr Coward has brought or conducted the proceedings unreasonably. In particular, I am not prepared to render him liable in costs for Mr D’Auvergne’s faults and failures as a representative. I do not therefore go on to weigh up the interests of justice in the application against him. I decline to make any award for costs against him.[19]I now turn to discussion of the application against Mr D’Auvergne.[20]In my reasons of 21 August 2023 (which might usefully be read with these reasons) I set out my understanding of the claimant’s case on underpayment which was put to me that day by his counsel. Mr D’Auvergne remains passionately committed to the proposition that the drivers on the 168 route who transferred from Arriva to Metroline were and remain significantly underpaid. Nothing in the experience of this litigation, including access to the advice of at least two barristers, one solicitor of whom I heard, Case Number: 3305361-365/2020 & 3304288-2022 4 the previous lengthy hearings before Judge Skehan, the three case management hearings which preceded that hearing, the judgement of the EAT, and my strike-out judgment, have served to convince him otherwise.[21]I have noted that Mr D’Auvergne’s understanding of the law and procedure of the tribunal is limited, and that on occasions when this has been pointed out, he has been quick to attribute to his union or his legal advisors any misunderstanding or mistake.[22]In approaching this application I must, in accordance with Rule 76, address three questions. The first is whether the claim has been brought or conducted in a manner which meets the definition in Rule 76(1) of, broadly, unreasonable conduct. The second is whether it is in the interests of justice to make an award of costs. The third is in light of any financial information I am given about the claimant’s ability to pay, how much the award of costs should be.[23]I find that the claim was brought unreasonably. It was misconceived. I say so for the following reasons. First, it was a reiteration of a claim which had been fought and lost, and I refer to my own reasons of 21 August 2023. Secondly, to the extent that the claimant thought that it was a claim brought under TUPE, which related directly to breach of rights under TUPE, it was brought over four years out of time. Primary limitation expired on 25 December 2015. The claim was presented on 8 June 2020. Thirdly, it was misconceived, because it purported to exercise rights which were not those of the claimants to exercise (eg as to employee liability information). On this strand of submission, I find that the test of rule 76(1) has been met.[24]Ms Norris’ frustration was clear when she made submissions in relation to the second strand, unreasonable conduct of the proceedings. That is a matter which I approach with very great caution. Whatever the burdens and frustrations of an irritating case or opponent, no member of the public is expected to be a lawyer, or should be penalised merely for ignorance or misunderstanding of the law. The tribunal cannot compel a litigant in person to take professional advice, or to follow it if taken, and has no control over the source or quality of any advice. The techniques of litigation involve a set of specialist skills which we cannot reasonably expect of the lay public. Furthermore, as Ms Norris generously admitted, however well put and cogent the submissions of a respondent may be, there is no obligation on a claimant to accept his opponent’s submissions.[25]Ms Norris dealt at length with the poor use of time shown by the claimant and his advisors in the conduct of these proceedings, including last minute preparation (of which there was a striking example before me on 21 August), failure to engage with correspondence, and conduct which appeared at times to show gaming behaviour.[26]I recognise the burdens, irritations and frustration caused, but I would set a very high bar indeed before finding that conduct of litigation by a litigant in person met the threshold of Rule 76(1), as opposed to being the product of ignorance, inexperience, and what Lord Justice Sedley in Blockbuster Case Number: 3305361-365/2020 & 3304288-2022 5 Entertainment Ltd v James 2006 EWCA Civ 684 may have had in mind when he commented that the doors of the tribunal are open to the difficult as well as the compliant.[27]I therefore do not find that the proceedings have been conducted unreasonably for the purposes of rule 76 in any respect save the following.[28]At the first preliminary hearing which came before me on 4 January 2023, an adjournment was granted, albeit on limited medical information. As the matter was not going to proceed, I took the opportunity to express guidance to the claimants, who were then in person. I was of course not aware that Ms Norris typed the guidance as I gave it, and then wrote the next day to Mr D’Auvergne to send him a copy of what she had typed. Having read her summary, I accept that while it is not a transcript, it is broadly accurate; I can see that it reflects my own speaking style.[29]The importance of that development is that by 5 January, the claimant had in writing a judge’s provisional overview of the difficulties of the case. As this came from an independent and impartial source, with some experience of these matters, it would be reasonable for the claimant to attach greater weight to it than he attached to what had been said or written by the respondent or its representative. I noted in particular that Ms Norris notes my saying, “There’s a basic legal rule. You get one chance, and one chance only to fight a case.. You don’t get the chance to ask me or another judge to make another decision about the same point.”[30]My recollection is that in reply, Mr D’Auvergne said that the present case was “not the same case” as that which had been decided by Judge Skehan. Seven months later, when Mr Wareing was asked to analyse the present case, he first accepted my offer of an adjournment to take specific instructions, after which his reply was that that was exactly the position: I repeat what is written in my August reasons.[31]In the same email of 5 January, Ms Norris repeated on behalf of the respondent the offer to the claimants of a drop hands deal.[32]The claimant was legally represented from February 2023 onwards. I infer that Mr D’Auvergne made very sure that Ms Norris’ email was among the papers given to the solicitor.[33]In my judgment, the claimant conducted the case unreasonably by pursuing matters to the hearing of 21 August in the face of Ms Norris’ email of 5 January which both placed on record my own guidance, and repeated a drop hands proposal. I therefore find that in that respect the test under Rule 76(1) has been met.[34]When I come to consider the interests of justice, I must bear in mind the appropriate balance. The tribunal must allow access to justice to the public; but it must at the same time safeguard respondents against unmeritorious Case Number: 3305361-365/2020 & 3304288-2022 6 claims, and do what it can to ensure that the limited resources of the tribunal are well used.[35]In all the circumstances set out above, it seems to me that the balance in this case is firmly in favour of the respondent, and that the interests of justice favour an award of costs being made.[36]Ms Norris had prepared schedules in which she broke down the total expenditure of costs as claims against each of the former claimants. The sum claimed against Mr D’Auvergne was £3935, which Ms Norris said did not include an element in respect of today’s hearing.[37]Mr D’Auvergne said in reply that he had no issue with paying costs if an award were made, but asked to do so by instalments. Despite the case management order of 21 August, Mr D’Auvergne had given the tribunal no information about means or ability to pay. Ms Norris said that she understood that he is working in London as a bus driver.[38]Ms Norris supported her application with a costs summary at an hourly rate of £300 exclusive of VAT. This was an appropriate case to award a fixed sum, without undertaking any form of detailed assessment.[39]I attached no weight to the claimant’s failure to challenge any item in the costs summary, or to challenge the work done or the rate claimed: all of this was consistent with his lack of understanding and experience.[40]I did not award the full amount claimed. In the exercise of discretion it seemed to me first that I had not agreed with all the points upon which Ms Norris had made her application; and secondly, even in the absence of information from the claimant, I am entitled to rely on the mismatch in reality between the weekly earnings of a bus driver (where I understand Mr D’Auvergne still to be employed) and the hourly rate of a solicitor. I cannot disregard the reality that two or three hours of a solicitor’s time may represent the gross weekly pay of a driver; and I therefore award what seems to me a fair and reasonable sum, albeit not the entire amount claimed. _____________________________ Employment Judge R Lewis Date: 29 December 2023 Sent to the parties on: 25 January 2024 For the Tribunal Office Case Number: 3305361-365/2020 & 3304288-2022 1 EMPLOYMENT TRIBUNALS Claimant Respondent 1. Mr S D’Auvergne 5. Mr P Coward v Metroline Travel Limited Heard at: Watford by CVP On: 15 December 2023 Before: Employment Judge R Lewis Appearances For the Claimants: C1 In person, C5 no attendance or representation For the Respondent: Ms H Norris, solicitoraward.
[1]The respondent’s application for a costs order against Mr D’Auvergne is upheld, and he is ordered to pay to the respondent costs of £2,500.00.[2]The respondent’s application for a costs order against Mr Coward is refused.award.
[1]Ms Norris asked for written reasons after judgment had been given.[2]This was the costs hearing listed after I struck out these claims on 21 August 2023 and issued a case management order in respect of thishearing.
[3]At the August hearing, Ms Norris advised that she wished to apply for costs against all five original claimants. At the start of this hearing, she advised that the respondent had compromised its application against the other three former claimants, and did not pursue any application against any of them today.[4]Mr Coward did not attend and was not represented. Mr D’Auvergne said that he could speak on his behalf but was not a formal representative. Later in the hearing he said that he had last spoken to Mr Coward at about the Case Number: 3305361-365/2020 & 3304288-2022 2 time of the lockdown, which I take to be in advance of presentation of the ET1 on 8 June 2020, and therefore some 3 ½ years before this hearing.[5]I was satisfied that Mr Coward had been made aware of this hearing, through information provided to him at his home address by the respondent. The ET1 did not contain a telephone number or email address for him, and Mr D’Auvergne said that Mr Coward is in poor health, and has not responded to any recent attempts by Mr D’Auvergne to make contact with him. In those circumstances, it did not seem to me that the tribunal was required to take more steps in accordance with Rule 47, and I was able to proceed.[6]Ms Norris had prepared an extended bundle, and a written application. Mr D’Auvergne confirmed that he had received both. Ms Norris gave oral submissions. I offered Mr D’Auvergne a short adjournment to enable him to prepare his reply, but he said that that was not necessary and replied straight away. After an adjournment, I gave judgment.[7]Ms Norris’ submission followed two broad strands. One was the merits strand. She submitted that it was evident that from the outset this claim had had no prospect of success, because it was an attempt to relitigate the claims heard and decided by Judge Skehan, as well as being based on a significant misunderstanding of TUPE and being several years out of time in part at least.[8]Related to that strand was Ms Norris’ submission that the respondent had throughout made these points directly and clearly to the claimants, so that they might take advice and understand the weakness of their position. She referred not just to the pleadings and skeletons, but to correspondence, and a number of offers of a “drop hands” arrangement.[9]The second and related strand was that the proceedings had, in Ms Norris’ submission, been conducted unreasonably by Mr D’Auvergne on behalf of all the claimants. Ms Norris meticulously identified a history of noncooperation and prevarication on his part, which she submitted constituted unreasonable conduct, beyond the usual difficulties of a litigant in person. In particular, she submitted that the difficulties had continued even after the claimants were professionally represented by solicitors.[10]She submitted that it was overall in the interests of justice to make anaward.
[11]Mr D’Auvergne in reply insisted that the fundamental claim heard and decided against the claimants by Judge Skehan was well founded, and that transferred drivers were still today not being paid their due entitlement. He said that it had been ‘proven’ that there was a shortfall in pay, and that his union had advised him that he had the right to bring a second claim. The former remark was simply wrong; and the latter, in labstract, was a statement of the obvious. Case Number: 3305361-365/2020 & 3304288-2022 3[12]He had thought that the guidance which I expressed on 4 January 2023 and which Ms Norris set out in an email to him of 5 January 2023, had related to the claim against Arriva only and not to the totality of the claim. I do not agree that that was a reasonable interpretation either of what I said or of Ms Norris’ written summary of my remarks.[13]He accepted that there had been shortcomings in the conduct of his former solicitors, which he attributed to “below par” communication with the solicitors whom he had for a period instructed.[14]He had produced no information or evidence about means (as provided for in my case management order of August) but said that he had no issue with payment and referred to a monthly figure (I explained that I had no power to order instalment payments).[15]He had no separate information to give by way of reply on behalf of Mr Coward. I deal briefly with Mr Coward’s position first.[17]It appears that the claimant had Mr Coward’s authority to name him on the claim form, and that he got this authority at some point late in the lockdown and before presenting the claim on 8 June 2020. Thereafter I have no evidence whatsoever of anything said or done by Mr Coward as an individual. The tribunal’s and respondent’s sole channel of communication with him, such as it was, was Mr D’Auvergne. I have no evidence of communications between Mr D’Auvergne and Mr Coward. I find that any advice which Mr D’Auvergne gave to Mr Coward about any aspect of law or procedure was probably wrong, and certainly distorted by Mr D’Auvergne’s unshakeable conviction that he had been wronged.[18]Although it was plainly unreasonable of Mr Coward to present a claim for unfair dismissal some years after dismissal, I can go no further in any analysis of his conduct. The tribunal strikes out many cases which are out of time without making a finding of unreasonable conduct, or making an award of costs. I do not have sufficient material to find that as an individual Mr Coward has brought or conducted the proceedings unreasonably. In particular, I am not prepared to render him liable in costs for Mr D’Auvergne’s faults and failures as a representative. I do not therefore go on to weigh up the interests of justice in the application against him. I decline to make any award for costs against him.[19]I now turn to discussion of the application against Mr D’Auvergne.[20]In my reasons of 21 August 2023 (which might usefully be read with these reasons) I set out my understanding of the claimant’s case on underpayment which was put to me that day by his counsel. Mr D’Auvergne remains passionately committed to the proposition that the drivers on the 168 route who transferred from Arriva to Metroline were and remain significantly underpaid. Nothing in the experience of this litigation, including access to the advice of at least two barristers, one solicitor of whom I heard, Case Number: 3305361-365/2020 & 3304288-2022 4 the previous lengthy hearings before Judge Skehan, the three case management hearings which preceded that hearing, the judgement of the EAT, and my strike-out judgment, have served to convince him otherwise.[21]I have noted that Mr D’Auvergne’s understanding of the law and procedure of the tribunal is limited, and that on occasions when this has been pointed out, he has been quick to attribute to his union or his legal advisors any misunderstanding or mistake.[22]In approaching this application I must, in accordance with Rule 76, address three questions. The first is whether the claim has been brought or conducted in a manner which meets the definition in Rule 76(1) of, broadly, unreasonable conduct. The second is whether it is in the interests of justice to make an award of costs. The third is in light of any financial information I am given about the claimant’s ability to pay, how much the award of costs should be.[23]I find that the claim was brought unreasonably. It was misconceived. I say so for the following reasons. First, it was a reiteration of a claim which had been fought and lost, and I refer to my own reasons of 21 August 2023. Secondly, to the extent that the claimant thought that it was a claim brought under TUPE, which related directly to breach of rights under TUPE, it was brought over four years out of time. Primary limitation expired on 25 December 2015. The claim was presented on 8 June 2020. Thirdly, it was misconceived, because it purported to exercise rights which were not those of the claimants to exercise (eg as to employee liability information). On this strand of submission, I find that the test of rule 76(1) has been met.[24]Ms Norris’ frustration was clear when she made submissions in relation to the second strand, unreasonable conduct of the proceedings. That is a matter which I approach with very great caution. Whatever the burdens and frustrations of an irritating case or opponent, no member of the public is expected to be a lawyer, or should be penalised merely for ignorance or misunderstanding of the law. The tribunal cannot compel a litigant in person to take professional advice, or to follow it if taken, and has no control over the source or quality of any advice. The techniques of litigation involve a set of specialist skills which we cannot reasonably expect of the lay public. Furthermore, as Ms Norris generously admitted, however well put and cogent the submissions of a respondent may be, there is no obligation on a claimant to accept his opponent’s submissions.[25]Ms Norris dealt at length with the poor use of time shown by the claimant and his advisors in the conduct of these proceedings, including last minute preparation (of which there was a striking example before me on 21 August), failure to engage with correspondence, and conduct which appeared at times to show gaming behaviour.[26]I recognise the burdens, irritations and frustration caused, but I would set a very high bar indeed before finding that conduct of litigation by a litigant in person met the threshold of Rule 76(1), as opposed to being the product of ignorance, inexperience, and what Lord Justice Sedley in Blockbuster Case Number: 3305361-365/2020 & 3304288-2022 5 Entertainment Ltd v James 2006 EWCA Civ 684 may have had in mind when he commented that the doors of the tribunal are open to the difficult as well as the compliant.[27]I therefore do not find that the proceedings have been conducted unreasonably for the purposes of rule 76 in any respect save the following.[28]At the first preliminary hearing which came before me on 4 January 2023, an adjournment was granted, albeit on limited medical information. As the matter was not going to proceed, I took the opportunity to express guidance to the claimants, who were then in person. I was of course not aware that Ms Norris typed the guidance as I gave it, and then wrote the next day to Mr D’Auvergne to send him a copy of what she had typed. Having read her summary, I accept that while it is not a transcript, it is broadly accurate; I can see that it reflects my own speaking style.[29]The importance of that development is that by 5 January, the claimant had in writing a judge’s provisional overview of the difficulties of the case. As this came from an independent and impartial source, with some experience of these matters, it would be reasonable for the claimant to attach greater weight to it than he attached to what had been said or written by the respondent or its representative. I noted in particular that Ms Norris notes my saying, “There’s a basic legal rule. You get one chance, and one chance only to fight a case.. You don’t get the chance to ask me or another judge to make another decision about the same point.”[30]My recollection is that in reply, Mr D’Auvergne said that the present case was “not the same case” as that which had been decided by Judge Skehan. Seven months later, when Mr Wareing was asked to analyse the present case, he first accepted my offer of an adjournment to take specific instructions, after which his reply was that that was exactly the position: I repeat what is written in my August reasons.[31]In the same email of 5 January, Ms Norris repeated on behalf of the respondent the offer to the claimants of a drop hands deal.[32]The claimant was legally represented from February 2023 onwards. I infer that Mr D’Auvergne made very sure that Ms Norris’ email was among the papers given to the solicitor.[33]In my judgment, the claimant conducted the case unreasonably by pursuing matters to the hearing of 21 August in the face of Ms Norris’ email of 5 January which both placed on record my own guidance, and repeated a drop hands proposal. I therefore find that in that respect the test under Rule 76(1) has been met.[34]When I come to consider the interests of justice, I must bear in mind the appropriate balance. The tribunal must allow access to justice to the public; but it must at the same time safeguard respondents against unmeritorious Case Number: 3305361-365/2020 & 3304288-2022 6 claims, and do what it can to ensure that the limited resources of the tribunal are well used.[35]In all the circumstances set out above, it seems to me that the balance in this case is firmly in favour of the respondent, and that the interests of justice favour an award of costs being made.[36]Ms Norris had prepared schedules in which she broke down the total expenditure of costs as claims against each of the former claimants. The sum claimed against Mr D’Auvergne was £3935, which Ms Norris said did not include an element in respect of today’s hearing.[37]Mr D’Auvergne said in reply that he had no issue with paying costs if an award were made, but asked to do so by instalments. Despite the case management order of 21 August, Mr D’Auvergne had given the tribunal no information about means or ability to pay. Ms Norris said that she understood that he is working in London as a bus driver.[38]Ms Norris supported her application with a costs summary at an hourly rate of £300 exclusive of VAT. This was an appropriate case to award a fixed sum, without undertaking any form of detailed assessment.[39]I attached no weight to the claimant’s failure to challenge any item in the costs summary, or to challenge the work done or the rate claimed: all of this was consistent with his lack of understanding and experience.[40]I did not award the full amount claimed. In the exercise of discretion it seemed to me first that I had not agreed with all the points upon which Ms Norris had made her application; and secondly, even in the absence of information from the claimant, I am entitled to rely on the mismatch in reality between the weekly earnings of a bus driver (where I understand Mr D’Auvergne still to be employed) and the hourly rate of a solicitor. I cannot disregard the reality that two or three hours of a solicitor’s time may represent the gross weekly pay of a driver; and I therefore award what seems to me a fair and reasonable sum, albeit not the entire amount claimed. _____________________________ Employment Judge R Lewis Date: 29 December 2023 Sent to the parties on: 25 January 2024 For the Tribunal Office Case Number: 3305361-365/2020 & 3304288-2022 1 EMPLOYMENT TRIBUNALS Claimant Respondent 1. Mr S D’Auvergne 5. Mr P Coward v Metroline Travel Limited Heard at: Watford by CVP On: 15 December 2023 Before: Employment Judge R Lewis Appearances For the Claimants: C1 In person, C5 no attendance or representation For the Respondent: Ms H Norris, solicitoraward.
[1]The respondent’s application for a costs order against Mr D’Auvergne is upheld, and he is ordered to pay to the respondent costs of £2,500.00.[2]The respondent’s application for a costs order against Mr Coward is refused.award.
[1]Ms Norris asked for written reasons after judgment had been given.[2]This was the costs hearing listed after I struck out these claims on 21 August 2023 and issued a case management order in respect of this hearing.[3]At the August hearing, Ms Norris advised that she wished to apply for costs against all five original claimants. At the start of this hearing, she advised that the respondent had compromised its application against the other three former claimants, and did not pursue any application against any of them today.[4]Mr Coward did not attend and was not represented. Mr D’Auvergne said that he could speak on his behalf but was not a formal representative. Later in the hearing he said that he had last spoken to Mr Coward at about the Case Number: 3305361-365/2020 & 3304288-2022 2 time of the lockdown, which I take to be in advance of presentation of the ET1 on 8 June 2020, and therefore some 3 ½ years before this hearing.[5]I was satisfied that Mr Coward had been made aware of this hearing, through information provided to him at his home address by the respondent. The ET1 did not contain a telephone number or email address for him, and Mr D’Auvergne said that Mr Coward is in poor health, and has not responded to any recent attempts by Mr D’Auvergne to make contact with him. In those circumstances, it did not seem to me that the tribunal was required to take more steps in accordance with Rule 47, and I was able to proceed.[6]Ms Norris had prepared an extended bundle, and a written application. Mr D’Auvergne confirmed that he had received both. Ms Norris gave oral submissions. I offered Mr D’Auvergne a short adjournment to enable him to prepare his reply, but he said that that was not necessary and replied straight away. After an adjournment, I gave judgment.[7]Ms Norris’ submission followed two broad strands. One was the merits strand. She submitted that it was evident that from the outset this claim had had no prospect of success, because it was an attempt to relitigate the claims heard and decided by Judge Skehan, as well as being based on a significant misunderstanding of TUPE and being several years out of time in part at least.[8]Related to that strand was Ms Norris’ submission that the respondent had throughout made these points directly and clearly to the claimants, so that they might take advice and understand the weakness of their position. She referred not just to the pleadings and skeletons, but to correspondence, and a number of offers of a “drop hands” arrangement.[9]The second and related strand was that the proceedings had, in Ms Norris’ submission, been conducted unreasonably by Mr D’Auvergne on behalf of all the claimants. Ms Norris meticulously identified a history of noncooperation and prevarication on his part, which she submitted constituted unreasonable conduct, beyond the usual difficulties of a litigant in person. In particular, she submitted that the difficulties had continued even after the claimants were professionally represented by solicitors.[10]She submitted that it was overall in the interests of justice to make anaward.
[11]Mr D’Auvergne in reply insisted that the fundamental claim heard and decided against the claimants by Judge Skehan was well founded, and that transferred drivers were still today not being paid their due entitlement. He said that it had been ‘proven’ that there was a shortfall in pay, and that his union had advised him that he had the right to bring a second claim. The former remark was simply wrong; and the latter, in labstract, was a statement of the obvious. Case Number: 3305361-365/2020 & 3304288-2022 3[12]He had thought that the guidance which I expressed on 4 January 2023 and which Ms Norris set out in an email to him of 5 January 2023, had related to the claim against Arriva only and not to the totality of the claim. I do not agree that that was a reasonable interpretation either of what I said or of Ms Norris’ written summary of my remarks.[13]He accepted that there had been shortcomings in the conduct of his former solicitors, which he attributed to “below par” communication with the solicitors whom he had for a period instructed.[14]He had produced no information or evidence about means (as provided for in my case management order of August) but said that he had no issue with payment and referred to a monthly figure (I explained that I had no power to order instalment payments).[15]He had no separate information to give by way of reply on behalf of Mr Coward. I deal briefly with Mr Coward’s position first.[17]It appears that the claimant had Mr Coward’s authority to name him on the claim form, and that he got this authority at some point late in the lockdown and before presenting the claim on 8 June 2020. Thereafter I have no evidence whatsoever of anything said or done by Mr Coward as an individual. The tribunal’s and respondent’s sole channel of communication with him, such as it was, was Mr D’Auvergne. I have no evidence of communications between Mr D’Auvergne and Mr Coward. I find that any advice which Mr D’Auvergne gave to Mr Coward about any aspect of law or procedure was probably wrong, and certainly distorted by Mr D’Auvergne’s unshakeable conviction that he had been wronged.[18]Although it was plainly unreasonable of Mr Coward to present a claim for unfair dismissal some years after dismissal, I can go no further in any analysis of his conduct. The tribunal strikes out many cases which are out of time without making a finding of unreasonable conduct, or making an award of costs. I do not have sufficient material to find that as an individual Mr Coward has brought or conducted the proceedings unreasonably. In particular, I am not prepared to render him liable in costs for Mr D’Auvergne’s faults and failures as a representative. I do not therefore go on to weigh up the interests of justice in the application against him. I decline to make any award for costs against him.[19]I now turn to discussion of the application against Mr D’Auvergne.[20]In my reasons of 21 August 2023 (which might usefully be read with these reasons) I set out my understanding of the claimant’s case on underpayment which was put to me that day by his counsel. Mr D’Auvergne remains passionately committed to the proposition that the drivers on the 168 route who transferred from Arriva to Metroline were and remain significantly underpaid. Nothing in the experience of this litigation, including access to the advice of at least two barristers, one solicitor of whom I heard, Case Number: 3305361-365/2020 & 3304288-2022 4 the previous lengthy hearings before Judge Skehan, the three case management hearings which preceded that hearing, the judgement of the EAT, and my strike-out judgment, have served to convince him otherwise.[21]I have noted that Mr D’Auvergne’s understanding of the law and procedure of the tribunal is limited, and that on occasions when this has been pointed out, he has been quick to attribute to his union or his legal advisors any misunderstanding or mistake.[22]In approaching this application I must, in accordance with Rule 76, address three questions. The first is whether the claim has been brought or conducted in a manner which meets the definition in Rule 76(1) of, broadly, unreasonable conduct. The second is whether it is in the interests of justice to make an award of costs. The third is in light of any financial information I am given about the claimant’s ability to pay, how much the award of costs should be.[23]I find that the claim was brought unreasonably. It was misconceived. I say so for the following reasons. First, it was a reiteration of a claim which had been fought and lost, and I refer to my own reasons of 21 August 2023. Secondly, to the extent that the claimant thought that it was a claim brought under TUPE, which related directly to breach of rights under TUPE, it was brought over four years out of time. Primary limitation expired on 25 December 2015. The claim was presented on 8 June 2020. Thirdly, it was misconceived, because it purported to exercise rights which were not those of the claimants to exercise (eg as to employee liability information). On this strand of submission, I find that the test of rule 76(1) has been met.[24]Ms Norris’ frustration was clear when she made submissions in relation to the second strand, unreasonable conduct of the proceedings. That is a matter which I approach with very great caution. Whatever the burdens and frustrations of an irritating case or opponent, no member of the public is expected to be a lawyer, or should be penalised merely for ignorance or misunderstanding of the law. The tribunal cannot compel a litigant in person to take professional advice, or to follow it if taken, and has no control over the source or quality of any advice. The techniques of litigation involve a set of specialist skills which we cannot reasonably expect of the lay public. Furthermore, as Ms Norris generously admitted, however well put and cogent the submissions of a respondent may be, there is no obligation on a claimant to accept his opponent’s submissions.[25]Ms Norris dealt at length with the poor use of time shown by the claimant and his advisors in the conduct of these proceedings, including last minute preparation (of which there was a striking example before me on 21 August), failure to engage with correspondence, and conduct which appeared at times to show gaming behaviour.[26]I recognise the burdens, irritations and frustration caused, but I would set a very high bar indeed before finding that conduct of litigation by a litigant in person met the threshold of Rule 76(1), as opposed to being the product of ignorance, inexperience, and what Lord Justice Sedley in Blockbuster Case Number: 3305361-365/2020 & 3304288-2022 5 Entertainment Ltd v James 2006 EWCA Civ 684 may have had in mind when he commented that the doors of the tribunal are open to the difficult as well as the compliant.[27]I therefore do not find that the proceedings have been conducted unreasonably for the purposes of rule 76 in any respect save the following.[28]At the first preliminary hearing which came before me on 4 January 2023, an adjournment was granted, albeit on limited medical information. As the matter was not going to proceed, I took the opportunity to express guidance to the claimants, who were then in person. I was of course not aware that Ms Norris typed the guidance as I gave it, and then wrote the next day to Mr D’Auvergne to send him a copy of what she had typed. Having read her summary, I accept that while it is not a transcript, it is broadly accurate; I can see that it reflects my own speaking style.[29]The importance of that development is that by 5 January, the claimant had in writing a judge’s provisional overview of the difficulties of the case. As this came from an independent and impartial source, with some experience of these matters, it would be reasonable for the claimant to attach greater weight to it than he attached to what had been said or written by the respondent or its representative. I noted in particular that Ms Norris notes my saying, “There’s a basic legal rule. You get one chance, and one chance only to fight a case.. You don’t get the chance to ask me or another judge to make another decision about the same point.”[30]My recollection is that in reply, Mr D’Auvergne said that the present case was “not the same case” as that which had been decided by Judge Skehan. Seven months later, when Mr Wareing was asked to analyse the present case, he first accepted my offer of an adjournment to take specific instructions, after which his reply was that that was exactly the position: I repeat what is written in my August reasons.[31]In the same email of 5 January, Ms Norris repeated on behalf of the respondent the offer to the claimants of a drop hands deal.[32]The claimant was legally represented from February 2023 onwards. I infer that Mr D’Auvergne made very sure that Ms Norris’ email was among the papers given to the solicitor.[33]In my judgment, the claimant conducted the case unreasonably by pursuing matters to the hearing of 21 August in the face of Ms Norris’ email of 5 January which both placed on record my own guidance, and repeated a drop hands proposal. I therefore find that in that respect the test under Rule 76(1) has been met.[34]When I come to consider the interests of justice, I must bear in mind the appropriate balance. The tribunal must allow access to justice to the public; but it must at the same time safeguard respondents against unmeritorious Case Number: 3305361-365/2020 & 3304288-2022 6 claims, and do what it can to ensure that the limited resources of the tribunal are well used.[35]In all the circumstances set out above, it seems to me that the balance in this case is firmly in favour of the respondent, and that the interests of justice favour an award of costs being made.[36]Ms Norris had prepared schedules in which she broke down the total expenditure of costs as claims against each of the former claimants. The sum claimed against Mr D’Auvergne was £3935, which Ms Norris said did not include an element in respect of today’shearing.
[37]Mr D’Auvergne said in reply that he had no issue with paying costs if an award were made, but asked to do so by instalments. Despite the case management order of 21 August, Mr D’Auvergne had given the tribunal no information about means or ability to pay. Ms Norris said that she understood that he is working in London as a bus driver.[38]Ms Norris supported her application with a costs summary at an hourly rate of £300 exclusive of VAT. This was an appropriate case to award a fixed sum, without undertaking any form of detailed assessment.[39]I attached no weight to the claimant’s failure to challenge any item in the costs summary, or to challenge the work done or the rate claimed: all of this was consistent with his lack of understanding and experience.[40]I did not award the full amount claimed. In the exercise of discretion it seemed to me first that I had not agreed with all the points upon which Ms Norris had made her application; and secondly, even in the absence of information from the claimant, I am entitled to rely on the mismatch in reality between the weekly earnings of a bus driver (where I understand Mr D’Auvergne still to be employed) and the hourly rate of a solicitor. I cannot disregard the reality that two or three hours of a solicitor’s time may represent the gross weekly pay of a driver; and I therefore award what seems to me a fair and reasonable sum, albeit not the entire amount claimed. _____________________________ Employment Judge R Lewis Date: 29 December 2023 Sent to the parties on: 25 January 2024 For the Tribunal Office Case Number: 3305361-365/2020 & 3304288-2022 1 EMPLOYMENT TRIBUNALS Claimant Respondent 1. Mr S D’Auvergne 5. Mr P Coward v Metroline Travel Limited Heard at: Watford by CVP On: 15 December 2023 Before: Employment Judge R Lewis Appearances For the Claimants: C1 In person, C5 no attendance or representation For the Respondent: Ms H Norris, solicitoraward.
[1]The respondent’s application for a costs order against Mr D’Auvergne is upheld, and he is ordered to pay to the respondent costs of £2,500.00.[2]The respondent’s application for a costs order against Mr Coward is refused.[1]Ms Norris asked for written reasons after judgment had been given.[2]This was the costs hearing listed after I struck out these claims on 21 August 2023 and issued a case management order in respect of this hearing.[3]At the August hearing, Ms Norris advised that she wished to apply for costs against all five original claimants. At the start of this hearing, she advised that the respondent had compromised its application against the other three former claimants, and did not pursue any application against any of them today.[4]Mr Coward did not attend and was not represented. Mr D’Auvergne said that he could speak on his behalf but was not a formal representative. Later in the hearing he said that he had last spoken to Mr Coward at about the Case Number: 3305361-365/2020 & 3304288-2022 2 time of the lockdown, which I take to be in advance of presentation of the ET1 on 8 June 2020, and therefore some 3 ½ years before this hearing.[5]I was satisfied that Mr Coward had been made aware of this hearing, through information provided to him at his home address by the respondent. The ET1 did not contain a telephone number or email address for him, and Mr D’Auvergne said that Mr Coward is in poor health, and has not responded to any recent attempts by Mr D’Auvergne to make contact with him. In those circumstances, it did not seem to me that the tribunal was required to take more steps in accordance with Rule 47, and I was able to proceed.[6]Ms Norris had prepared an extended bundle, and a written application. Mr D’Auvergne confirmed that he had received both. Ms Norris gave oral submissions. I offered Mr D’Auvergne a short adjournment to enable him to prepare his reply, but he said that that was not necessary and replied straight away. After an adjournment, I gave judgment.[7]Ms Norris’ submission followed two broad strands. One was the merits strand. She submitted that it was evident that from the outset this claim had had no prospect of success, because it was an attempt to relitigate the claims heard and decided by Judge Skehan, as well as being based on a significant misunderstanding of TUPE and being several years out of time in part at least.[8]Related to that strand was Ms Norris’ submission that the respondent had throughout made these points directly and clearly to the claimants, so that they might take advice and understand the weakness of their position. She referred not just to the pleadings and skeletons, but to correspondence, and a number of offers of a “drop hands” arrangement.[9]The second and related strand was that the proceedings had, in Ms Norris’ submission, been conducted unreasonably by Mr D’Auvergne on behalf of all the claimants. Ms Norris meticulously identified a history of noncooperation and prevarication on his part, which she submitted constituted unreasonable conduct, beyond the usual difficulties of a litigant in person. In particular, she submitted that the difficulties had continued even after the claimants were professionally represented by solicitors.[10]She submitted that it was overall in the interests of justice to make anaward.
[11]Mr D’Auvergne in reply insisted that the fundamental claim heard and decided against the claimants by Judge Skehan was well founded, and that transferred drivers were still today not being paid their due entitlement. He said that it had been ‘proven’ that there was a shortfall in pay, and that his union had advised him that he had the right to bring a second claim. The former remark was simply wrong; and the latter, in labstract, was a statement of the obvious. Case Number: 3305361-365/2020 & 3304288-2022 3[12]He had thought that the guidance which I expressed on 4 January 2023 and which Ms Norris set out in an email to him of 5 January 2023, had related to the claim against Arriva only and not to the totality of the claim. I do not agree that that was a reasonable interpretation either of what I said or of Ms Norris’ written summary of my remarks.[13]He accepted that there had been shortcomings in the conduct of his former solicitors, which he attributed to “below par” communication with the solicitors whom he had for a period instructed.[14]He had produced no information or evidence about means (as provided for in my case management order of August) but said that he had no issue with payment and referred to a monthly figure (I explained that I had no power to order instalment payments).[15]He had no separate information to give by way of reply on behalf of Mr Coward. I deal briefly with Mr Coward’s position first.[17]It appears that the claimant had Mr Coward’s authority to name him on the claim form, and that he got this authority at some point late in the lockdown and before presenting the claim on 8 June 2020. Thereafter I have no evidence whatsoever of anything said or done by Mr Coward as an individual. The tribunal’s and respondent’s sole channel of communication with him, such as it was, was Mr D’Auvergne. I have no evidence of communications between Mr D’Auvergne and Mr Coward. I find that any advice which Mr D’Auvergne gave to Mr Coward about any aspect of law or procedure was probably wrong, and certainly distorted by Mr D’Auvergne’s unshakeable conviction that he had been wronged.[18]Although it was plainly unreasonable of Mr Coward to present a claim for unfair dismissal some years after dismissal, I can go no further in any analysis of his conduct. The tribunal strikes out many cases which are out of time without making a finding of unreasonable conduct, or making an award of costs. I do not have sufficient material to find that as an individual Mr Coward has brought or conducted the proceedings unreasonably. In particular, I am not prepared to render him liable in costs for Mr D’Auvergne’s faults and failures as a representative. I do not therefore go on to weigh up the interests of justice in the application against him. I decline to make any award for costs against him.[19]I now turn to discussion of the application against Mr D’Auvergne.[20]In my reasons of 21 August 2023 (which might usefully be read with these reasons) I set out my understanding of the claimant’s case on underpayment which was put to me that day by his counsel. Mr D’Auvergne remains passionately committed to the proposition that the drivers on the 168 route who transferred from Arriva to Metroline were and remain significantly underpaid. Nothing in the experience of this litigation, including access to the advice of at least two barristers, one solicitor of whom I heard, Case Number: 3305361-365/2020 & 3304288-2022 4 the previous lengthy hearings before Judge Skehan, the three case management hearings which preceded that hearing, the judgement of the EAT, and my strike-out judgment, have served to convince him otherwise.[21]I have noted that Mr D’Auvergne’s understanding of the law and procedure of the tribunal is limited, and that on occasions when this has been pointed out, he has been quick to attribute to his union or his legal advisors any misunderstanding or mistake.[22]In approaching this application I must, in accordance with Rule 76, address three questions. The first is whether the claim has been brought or conducted in a manner which meets the definition in Rule 76(1) of, broadly, unreasonable conduct. The second is whether it is in the interests of justice to make an award of costs. The third is in light of any financial information I am given about the claimant’s ability to pay, how much the award of costs should be.[23]I find that the claim was brought unreasonably. It was misconceived. I say so for the following reasons. First, it was a reiteration of a claim which had been fought and lost, and I refer to my own reasons of 21 August 2023. Secondly, to the extent that the claimant thought that it was a claim brought under TUPE, which related directly to breach of rights under TUPE, it was brought over four years out of time. Primary limitation expired on 25 December 2015. The claim was presented on 8 June 2020. Thirdly, it was misconceived, because it purported to exercise rights which were not those of the claimants to exercise (eg as to employee liability information). On this strand of submission, I find that the test of rule 76(1) has been met.[24]Ms Norris’ frustration was clear when she made submissions in relation to the second strand, unreasonable conduct of the proceedings. That is a matter which I approach with very great caution. Whatever the burdens and frustrations of an irritating case or opponent, no member of the public is expected to be a lawyer, or should be penalised merely for ignorance or misunderstanding of the law. The tribunal cannot compel a litigant in person to take professional advice, or to follow it if taken, and has no control over the source or quality of any advice. The techniques of litigation involve a set of specialist skills which we cannot reasonably expect of the lay public. Furthermore, as Ms Norris generously admitted, however well put and cogent the submissions of a respondent may be, there is no obligation on a claimant to accept his opponent’s submissions.[25]Ms Norris dealt at length with the poor use of time shown by the claimant and his advisors in the conduct of these proceedings, including last minute preparation (of which there was a striking example before me on 21 August), failure to engage with correspondence, and conduct which appeared at times to show gaming behaviour.[26]I recognise the burdens, irritations and frustration caused, but I would set a very high bar indeed before finding that conduct of litigation by a litigant in person met the threshold of Rule 76(1), as opposed to being the product of ignorance, inexperience, and what Lord Justice Sedley in Blockbuster Case Number: 3305361-365/2020 & 3304288-2022 5 Entertainment Ltd v James 2006 EWCA Civ 684 may have had in mind when he commented that the doors of the tribunal are open to the difficult as well as the compliant.[27]I therefore do not find that the proceedings have been conducted unreasonably for the purposes of rule 76 in any respect save the following.[28]At the first preliminary hearing which came before me on 4 January 2023, an adjournment was granted, albeit on limited medical information. As the matter was not going to proceed, I took the opportunity to express guidance to the claimants, who were then in person. I was of course not aware that Ms Norris typed the guidance as I gave it, and then wrote the next day to Mr D’Auvergne to send him a copy of what she had typed. Having read her summary, I accept that while it is not a transcript, it is broadly accurate; I can see that it reflects my own speaking style.[29]The importance of that development is that by 5 January, the claimant had in writing a judge’s provisional overview of the difficulties of the case. As this came from an independent and impartial source, with some experience of these matters, it would be reasonable for the claimant to attach greater weight to it than he attached to what had been said or written by the respondent or its representative. I noted in particular that Ms Norris notes my saying, “There’s a basic legal rule. You get one chance, and one chance only to fight a case.. You don’t get the chance to ask me or another judge to make another decision about the same point.”[30]My recollection is that in reply, Mr D’Auvergne said that the present case was “not the same case” as that which had been decided by Judge Skehan. Seven months later, when Mr Wareing was asked to analyse the present case, he first accepted my offer of an adjournment to take specific instructions, after which his reply was that that was exactly the position: I repeat what is written in my August reasons.[31]In the same email of 5 January, Ms Norris repeated on behalf of the respondent the offer to the claimants of a drop hands deal.[32]The claimant was legally represented from February 2023 onwards. I infer that Mr D’Auvergne made very sure that Ms Norris’ email was among the papers given to the solicitor.[33]In my judgment, the claimant conducted the case unreasonably by pursuing matters to the hearing of 21 August in the face of Ms Norris’ email of 5 January which both placed on record my own guidance, and repeated a drop hands proposal. I therefore find that in that respect the test under Rule 76(1) has been met.[34]When I come to consider the interests of justice, I must bear in mind the appropriate balance. The tribunal must allow access to justice to the public; but it must at the same time safeguard respondents against unmeritorious Case Number: 3305361-365/2020 & 3304288-2022 6 claims, and do what it can to ensure that the limited resources of the tribunal are well used.[35]In all the circumstances set out above, it seems to me that the balance in this case is firmly in favour of the respondent, and that the interests of justice favour an award of costs being made.[36]Ms Norris had prepared schedules in which she broke down the total expenditure of costs as claims against each of the former claimants. The sum claimed against Mr D’Auvergne was £3935, which Ms Norris said did not include an element in respect of today’s hearing.[37]Mr D’Auvergne said in reply that he had no issue with paying costs if an award were made, but asked to do so by instalments. Despite the case management order of 21 August, Mr D’Auvergne had given the tribunal no information about means or ability to pay. Ms Norris said that she understood that he is working in London as a bus driver.[38]Ms Norris supported her application with a costs summary at an hourly rate of £300 exclusive of VAT. This was an appropriate case to award a fixed sum, without undertaking any form of detailed assessment.[39]I attached no weight to the claimant’s failure to challenge any item in the costs summary, or to challenge the work done or the rate claimed: all of this was consistent with his lack of understanding and experience.[40]I did not award the full amount claimed. In the exercise of discretion it seemed to me first that I had not agreed with all the points upon which Ms Norris had made her application; and secondly, even in the absence of information from the claimant, I am entitled to rely on the mismatch in reality between the weekly earnings of a bus driver (where I understand Mr D’Auvergne still to be employed) and the hourly rate of a solicitor. I cannot disregard the reality that two or three hours of a solicitor’s time may represent the gross weekly pay of a driver; and I therefore award what seems to me a fair and reasonable sum, albeit not the entire amount claimed. _____________________________ Employment Judge R Lewis Date: 29 December 2023 Sent to the parties on: 25 January 2024 For the Tribunal Office Case Number: 3305361-365/2020 & 3304288-2022 1 EMPLOYMENT TRIBUNALS Claimant Respondent 1. Mr S D’Auvergne 5. Mr P Coward v Metroline Travel Limited Heard at: Watford by CVP On: 15 December 2023 Before: Employment Judge R Lewis Appearances For the Claimants: C1 In person, C5 no attendance or representation For the Respondent: Ms H Norris, solicitor[1]The respondent’s application for a costs order against Mr D’Auvergne is upheld, and he is ordered to pay to the respondent costs of £2,500.00.[2]The respondent’s application for a costs order against Mr Coward is refused.[1]Ms Norris asked for written reasons after judgment had been given.[2]This was the costs hearing listed after I struck out these claims on 21 August 2023 and issued a case management order in respect of this hearing.[3]At the August hearing, Ms Norris advised that she wished to apply for costs against all five original claimants. At the start of this hearing, she advised that the respondent had compromised its application against the other three former claimants, and did not pursue any application against any of them today.[4]Mr Coward did not attend and was not represented. Mr D’Auvergne said that he could speak on his behalf but was not a formal representative. Later in the hearing he said that he had last spoken to Mr Coward at about the Case Number: 3305361-365/2020 & 3304288-2022 2 time of the lockdown, which I take to be in advance of presentation of the ET1 on 8 June 2020, and therefore some 3 ½ years before this hearing.[5]I was satisfied that Mr Coward had been made aware of this hearing, through information provided to him at his home address by the respondent. The ET1 did not contain a telephone number or email address for him, and Mr D’Auvergne said that Mr Coward is in poor health, and has not responded to any recent attempts by Mr D’Auvergne to make contact with him. In those circumstances, it did not seem to me that the tribunal was required to take more steps in accordance with Rule 47, and I was able to proceed.[6]Ms Norris had prepared an extended bundle, and a written application. Mr D’Auvergne confirmed that he had received both. Ms Norris gave oral submissions. I offered Mr D’Auvergne a short adjournment to enable him to prepare his reply, but he said that that was not necessary and replied straight away. After an adjournment, I gave judgment.[7]Ms Norris’ submission followed two broad strands. One was the merits strand. She submitted that it was evident that from the outset this claim had had no prospect of success, because it was an attempt to relitigate the claims heard and decided by Judge Skehan, as well as being based on a significant misunderstanding of TUPE and being several years out of time in part at least.[8]Related to that strand was Ms Norris’ submission that the respondent had throughout made these points directly and clearly to the claimants, so that they might take advice and understand the weakness of their position. She referred not just to the pleadings and skeletons, but to correspondence, and a number of offers of a “drop hands” arrangement.[9]The second and related strand was that the proceedings had, in Ms Norris’ submission, been conducted unreasonably by Mr D’Auvergne on behalf of all the claimants. Ms Norris meticulously identified a history of noncooperation and prevarication on his part, which she submitted constituted unreasonable conduct, beyond the usual difficulties of a litigant in person. In particular, she submitted that the difficulties had continued even after the claimants were professionally represented by solicitors.[10]She submitted that it was overall in the interests of justice to make anaward.
[11]Mr D’Auvergne in reply insisted that the fundamental claim heard and decided against the claimants by Judge Skehan was well founded, and that transferred drivers were still today not being paid their due entitlement. He said that it had been ‘proven’ that there was a shortfall in pay, and that his union had advised him that he had the right to bring a second claim. The former remark was simply wrong; and the latter, in labstract, was a statement of the obvious. Case Number: 3305361-365/2020 & 3304288-2022 3[12]He had thought that the guidance which I expressed on 4 January 2023 and which Ms Norris set out in an email to him of 5 January 2023, had related to the claim against Arriva only and not to the totality of the claim. I do not agree that that was a reasonable interpretation either of what I said or of Ms Norris’ written summary of my remarks.[13]He accepted that there had been shortcomings in the conduct of his former solicitors, which he attributed to “below par” communication with the solicitors whom he had for a period instructed.[14]He had produced no information or evidence about means (as provided for in my case management order of August) but said that he had no issue with payment and referred to a monthly figure (I explained that I had no power to order instalment payments).[15]He had no separate information to give by way of reply on behalf of Mr Coward. I deal briefly with Mr Coward’s position first.[17]It appears that the claimant had Mr Coward’s authority to name him on the claim form, and that he got this authority at some point late in the lockdown and before presenting the claim on 8 June 2020. Thereafter I have no evidence whatsoever of anything said or done by Mr Coward as an individual. The tribunal’s and respondent’s sole channel of communication with him, such as it was, was Mr D’Auvergne. I have no evidence of communications between Mr D’Auvergne and Mr Coward. I find that any advice which Mr D’Auvergne gave to Mr Coward about any aspect of law or procedure was probably wrong, and certainly distorted by Mr D’Auvergne’s unshakeable conviction that he had been wronged.[18]Although it was plainly unreasonable of Mr Coward to present a claim for unfair dismissal some years after dismissal, I can go no further in any analysis of his conduct. The tribunal strikes out many cases which are out of time without making a finding of unreasonable conduct, or making an award of costs. I do not have sufficient material to find that as an individual Mr Coward has brought or conducted the proceedings unreasonably. In particular, I am not prepared to render him liable in costs for Mr D’Auvergne’s faults and failures as a representative. I do not therefore go on to weigh up the interests of justice in the application against him. I decline to make any award for costs against him.[19]I now turn to discussion of the application against Mr D’Auvergne.[20]In my reasons of 21 August 2023 (which might usefully be read with these reasons) I set out my understanding of the claimant’s case on underpayment which was put to me that day by his counsel. Mr D’Auvergne remains passionately committed to the proposition that the drivers on the 168 route who transferred from Arriva to Metroline were and remain significantly underpaid. Nothing in the experience of this litigation, including access to the advice of at least two barristers, one solicitor of whom I heard, Case Number: 3305361-365/2020 & 3304288-2022 4 the previous lengthy hearings before Judge Skehan, the three case management hearings which preceded that hearing, the judgement of the EAT, and my strike-out judgment, have served to convince him otherwise.[21]I have noted that Mr D’Auvergne’s understanding of the law and procedure of the tribunal is limited, and that on occasions when this has been pointed out, he has been quick to attribute to his union or his legal advisors any misunderstanding or mistake.[22]In approaching this application I must, in accordance with Rule 76, address three questions. The first is whether the claim has been brought or conducted in a manner which meets the definition in Rule 76(1) of, broadly, unreasonable conduct. The second is whether it is in the interests of justice to make an award of costs. The third is in light of any financial information I am given about the claimant’s ability to pay, how much the award of costs should be.[23]I find that the claim was brought unreasonably. It was misconceived. I say so for the following reasons. First, it was a reiteration of a claim which had been fought and lost, and I refer to my own reasons of 21 August 2023. Secondly, to the extent that the claimant thought that it was a claim brought under TUPE, which related directly to breach of rights under TUPE, it was brought over four years out of time. Primary limitation expired on 25 December 2015. The claim was presented on 8 June 2020. Thirdly, it was misconceived, because it purported to exercise rights which were not those of the claimants to exercise (eg as to employee liability information). On this strand of submission, I find that the test of rule 76(1) has been met.[24]Ms Norris’ frustration was clear when she made submissions in relation to the second strand, unreasonable conduct of the proceedings. That is a matter which I approach with very great caution. Whatever the burdens and frustrations of an irritating case or opponent, no member of the public is expected to be a lawyer, or should be penalised merely for ignorance or misunderstanding of the law. The tribunal cannot compel a litigant in person to take professional advice, or to follow it if taken, and has no control over the source or quality of any advice. The techniques of litigation involve a set of specialist skills which we cannot reasonably expect of the lay public. Furthermore, as Ms Norris generously admitted, however well put and cogent the submissions of a respondent may be, there is no obligation on a claimant to accept his opponent’s submissions.[25]Ms Norris dealt at length with the poor use of time shown by the claimant and his advisors in the conduct of these proceedings, including last minute preparation (of which there was a striking example before me on 21 August), failure to engage with correspondence, and conduct which appeared at times to show gaming behaviour.[26]I recognise the burdens, irritations and frustration caused, but I would set a very high bar indeed before finding that conduct of litigation by a litigant in person met the threshold of Rule 76(1), as opposed to being the product of ignorance, inexperience, and what Lord Justice Sedley in Blockbuster Case Number: 3305361-365/2020 & 3304288-2022 5 Entertainment Ltd v James 2006 EWCA Civ 684 may have had in mind when he commented that the doors of the tribunal are open to the difficult as well as the compliant.[27]I therefore do not find that the proceedings have been conducted unreasonably for the purposes of rule 76 in any respect save the following.[28]At the first preliminary hearing which came before me on 4 January 2023, an adjournment was granted, albeit on limited medical information. As the matter was not going to proceed, I took the opportunity to express guidance to the claimants, who were then in person. I was of course not aware that Ms Norris typed the guidance as I gave it, and then wrote the next day to Mr D’Auvergne to send him a copy of what she had typed. Having read her summary, I accept that while it is not a transcript, it is broadly accurate; I can see that it reflects my own speaking style.[29]The importance of that development is that by 5 January, the claimant had in writing a judge’s provisional overview of the difficulties of the case. As this came from an independent and impartial source, with some experience of these matters, it would be reasonable for the claimant to attach greater weight to it than he attached to what had been said or written by the respondent or its representative. I noted in particular that Ms Norris notes my saying, “There’s a basic legal rule. You get one chance, and one chance only to fight a case.. You don’t get the chance to ask me or another judge to make another decision about the same point.”[30]My recollection is that in reply, Mr D’Auvergne said that the present case was “not the same case” as that which had been decided by Judge Skehan. Seven months later, when Mr Wareing was asked to analyse the present case, he first accepted my offer of an adjournment to take specific instructions, after which his reply was that that was exactly the position: I repeat what is written in my August reasons.[31]In the same email of 5 January, Ms Norris repeated on behalf of the respondent the offer to the claimants of a drop hands deal.[32]The claimant was legally represented from February 2023 onwards. I infer that Mr D’Auvergne made very sure that Ms Norris’ email was among the papers given to the solicitor.[33]In my judgment, the claimant conducted the case unreasonably by pursuing matters to the hearing of 21 August in the face of Ms Norris’ email of 5 January which both placed on record my own guidance, and repeated a drop hands proposal. I therefore find that in that respect the test under Rule 76(1) has been met.[34]When I come to consider the interests of justice, I must bear in mind the appropriate balance. The tribunal must allow access to justice to the public; but it must at the same time safeguard respondents against unmeritorious Case Number: 3305361-365/2020 & 3304288-2022 6 claims, and do what it can to ensure that the limited resources of the tribunal are well used.[35]In all the circumstances set out above, it seems to me that the balance in this case is firmly in favour of the respondent, and that the interests of justice favour an award of costs being made.[36]Ms Norris had prepared schedules in which she broke down the total expenditure of costs as claims against each of the former claimants. The sum claimed against Mr D’Auvergne was £3935, which Ms Norris said did not include an element in respect of today’shearing.
[37]Mr D’Auvergne said in reply that he had no issue with paying costs if an award were made, but asked to do so by instalments. Despite the case management order of 21 August, Mr D’Auvergne had given the tribunal no information about means or ability to pay. Ms Norris said that she understood that he is working in London as a bus driver.[38]Ms Norris supported her application with a costs summary at an hourly rate of £300 exclusive of VAT. This was an appropriate case to award a fixed sum, without undertaking any form of detailed assessment.[39]I attached no weight to the claimant’s failure to challenge any item in the costs summary, or to challenge the work done or the rate claimed: all of this was consistent with his lack of understanding and experience.[40]I did not award the full amount claimed. In the exercise of discretion it seemed to me first that I had not agreed with all the points upon which Ms Norris had made her application; and secondly, even in the absence of information from the claimant, I am entitled to rely on the mismatch in reality between the weekly earnings of a bus driver (where I understand Mr D’Auvergne still to be employed) and the hourly rate of a solicitor. I cannot disregard the reality that two or three hours of a solicitor’s time may represent the gross weekly pay of a driver; and I therefore award what seems to me a fair and reasonable sum, albeit not the entire amount claimed.