J Tranter as representative of the Estate of D Tranter (deceased) v Franklin Silencers Ltd: 3306423/2024
EMPLOYMENT TRIBUNALS
Case No 3306423/2024
Between
Jaqueline Tranter as representative of the Estate of Daren Tranter (deceased)ClaimantFranklin Silencers Ltd COSTS JUDGMENT (1) The Claimant’s application for costs, as a result of postponement of the hearing scheduled for 15 May 2025, is refused.RespondentDate 11 November 2025
JUDGMENT
(1) The Claimant’s application for costs, as a result of postponement of the hearing scheduled for 15 May 2025, is refused.
REASONS
[1]The Claimant made this application for costs in writing. At the preliminary hearing on 5 November 2025, each side confirmed that they were content for the decision to be made on the papers, and that neither of them sought that I schedule a final hearing to decide the application.[2]The parties amplified their submissions orally during the preliminary hearing in private for case management and I have taken what they said then into consideration.
Background
[3]I sent a summary and orders document following the 5 November 2025 hearing. That gives details of the litigation to date, and I do not need to repeat what I wrote there. I have taken those matters into account.[4]Notably, on 18 December 2024, notice of hearing was sent, with case management agenda, and – in a separate letter – case management orders. 1 of 9[5]The notice of hearing was for preliminary hearing in private for case management for 10am on 15 May 2025. The orders required the Claimant to(1) supply details of disability discrimination (and/or harassment related to disability) and(2) supply an impact statement and(3) supply “GP and other medical records”. In each case, the date for compliance was 15 January 2025. The Respondent was ordered to say if disability was conceded by 29 January 2025.[6]On 10 June 2025, the Claimant sadly died. Had there been a preliminary hearing in private for case management on 15 May 2025, that would have been during his lifetime.. The postponement[7]The Claimant did not supply the required information by 15 January 2025. On 12 February 2025, the Respondent agreed to the Claimant’s proposed variation, which was that the Claimant would provide Further and Better Particulars, Disability Impact Statement and medical records by 19 February 2025 and the Respondent was to confirm if disability was conceded by 5 March 2025.[8]On 13 May 2025 at 17:39, the Claimant’s representative made an application, which included the following. In accordance with Rule 38 of the Employment Tribunal Procedural Rules 2024 we are writing to request that the Employment Tribunal list an Open Preliminary Hearing to determine that an order be made as set out below: That an Order be made pursuant to Rule 38 that the Respondent’s defence be struck out as a result of the Respondent’s failure to actively pursue the defence. The Respondent seeks the above order to be made on the grounds that the Respondent has not complied with the Case Management Orders (rule 38(1)(c)) and not actively pursued their defence (rule 38(1)(d)) for the reasons as set out below. The case is listed for a private Preliminary Hearing on 15 May 2025. [comments about the grounds for the application omitted. See below] As the Respondent has not complied with the Case Management Order and failed to respond to several correspondence, the case has been unable progress at the required pace. The Claimant cannot progress the case in general without engagement from the Respondent. Granting this application will not prejudice the fairness of the proceedings as parties are obliged to comply with the Case Management Orders and progress their claim or defence. This approach aligns with the overriding objective of ensuring that cases are dealt with justly, efficiently, and at a proportionate cost. We therefore respectfully request that the Tribunal consider the application at the closed preliminary hearing listed for 15 May 2025. 2 of 9[9]On 14 May 2025 at 16:34, an application for postponement was made on behalf of the Respondent.[10]The Claimant’s representative replied at 17:26 opposing it.[11]EJ Graham granted the application and a letter, sent on his instructions, gave his reasons, and warned about the possibility of costs. The Claimant’s application and the Respondent’s submissions[12]On 29 May 2025, the Claimant’s representative made an application at 17.48.[13]Part of the application points out that the criteria in Rule 74(2) are met. [That is clearly correct and the Respondent does not dispute that.][14]The application as detailed orally also relies on alleged unreasonableness by the Respondent in failing to progress matters after the notice of hearing and case management orders were sent, and failing to flag up that it might need more time before preliminary hearing. Put another way, it was not simply that the application was made late (thereby triggering rule 74(2)), but also that the lateness was part of a pattern of unreasonable conduct and that if the Respondent had acted more promptly / efficiently then either(a) it might not have needed to apply to postpone at all or else(b) if it did need postpone – to sort out funding, for example – then it could have notified the Claimant and the Tribunal of that request much sooner.[15]The application also relies on the fact that Mr Tranter died before the rearranged hearing, and so the Claimant’s side were deprived of his input during the first case management hearing. [The Claimant’s representative did not suggest or imply that the final hearing would have been possible prior to Mr Tranter’s death, if the postponement and not occurred.][16]The application was for £300 plus VAT based on the costs thrown away as a result of the postponement. It did not include any costs that would have been incurred in any event in connection with the first case management hearing (ie regardless of date).[17]One point the Respondent raised in response was about the Claimant’s representative’ later postponement application (17 June 2025 at 10.24) and its proximity to the rearranged hearing date. There is nothing in that point, and I need say no more about it. It does not affect my decision on this costs application one way or the other.[18]The Respondent also relies on problems in obtaining confirmation from its insurers and/or brokers that it had cover in place to defend this claim, and also on apparent misunderstandings about who was to be responsible for liaising with the Tribunal. In particular, as flagged up in the postponement application, the assertions were 3 of 9(i) that the respondent company was unaware “that information was required from them” and(ii) that the broker believed that the insurer was replying directly to the Tribunal and/or the Claimant’s representative whereas that was not the case. Comments about the Claimant’s 13 May application[19]I referred to extracts from the Claimant’s application above. In between those extracts, this was written: On 12 February 2025, the Claimant’s representative received correspondence from the Respondent that they agreed to the Claimant’s proposed variation to the Case Management Orders, specifically that the Claimant was to provide Further and Better Particulars, Disability Impact Statement and medical records on 19 February 2025 and the Respondent was to confirm if disability was conceded on 5 March 2025. This was confirmed to the Employment Tribunal on 19 February 2025. Since 12 February 2025, representatives for the Claimant has not received further correspondence from the Respondent. On 19 February 2025, representatives for the Claimant provided the Further and Better Particulars to the Respondent. The Respondent failed to confirm if disability was conceded on 5 March 2025. In addition, representatives for the Claimant have sent several correspondence to the Respondent on 10 March 2025, 24 March 2025, and 9 April 2025 but we are yet to receive a response or acknowledgement. In addition, representatives for the Claimant have not received correspondence from the Respondent in advance of the Preliminary Hearing listed for 15 May 2025.[20]It is common ground between the parties that the statement about further and better particulars having been supplied on 19 February is correct. Although not expressly stated in the extract, it is also common ground that the disability impact statement was sent on 19 February as well.[21]There is no dispute that the comments about no responses from the Respondent after 19 February are correct.[22]My comments are:22.1 The Claimant was represented by solicitors by this point. It was solicitors who sent the further information document (which was well-drafted and helpful) on 19 February. It was also solicitors who made the 13 May application.22.2 The Claimant’s representatives knew – or ought to have known – that the Respondent was not legally represented.22.3 There was no mention in the 13 May email that the Claimant had not yet complied with the order to supply medical evidence. There should have been. The first of the paragraphs refers to an agreement for the Claimant to comply with all the orders by 19 February. The second paragraph implies that22.3.1 So that the unrepresented opponent would understand that that was the basis of the application and22.3.2 So that a judge looking at the application would not be misled into thinking that the Claimant had complied – by 19 December 2025 - with all the orders made on 18 December 2024.(i) the Respondent is in breach of the orders and(ii) there are grounds for strike out 4 of 9 because of that. It is quite hard to understand why the Respondent should be struck out for failing to take the step required by paragraph 6 of the 18 December 2024 orders given that the Claimant had – by 13 May 2025 – only sent an impact statement and not medical evidence. However, if that was the application – that is that the Respondent should respond despite the Claimant’s breach of the order to supply medical evidence – then that needed to be expressly stated. This is for 2 reasons:[23]I have not heard evidence from the author of the postponement application (an insurance broker). I do not know what would have happened if the Claimant’s representative had not sent the 13 May email referring to strike out (and the comments made about what would be raised on 15 May). However, from the timings of the correspondence, and from the reference to “Franklins silencers” being “unaware that information was required from them”, I infer that the author had in mind the contents of the 13 May strike out application at the time they applied to postpone.
The Law
[24]In the Employment Tribunals Rules of Procedure, the section “Costs Orders, Preparation Time Orders And Wasted Costs Orders” is Rules 72 to 82.[25]When an application for costs is made, or when the Tribunal is considering the matter of its own initiative, there are potentially the following stages to the decision.25.1 Has one (or more) of the criteria (for costs to potentially be awarded) as set out in the rules been met.25.1.1 If not, there can be no order for costs.25.1.2 If so, which rule or rules contain the criteria which have been satisfied (and why)?25.2 Is the rule one which requires the Tribunal to consider making an award, or is it one which says the Tribunal “may” consider making an award.25.3 Either way, if the criteria for a costs order are met, that means that the Tribunal has discretion to make an award, not that it is obliged to. So what are the 5 of 9 relevant factors in this case, and, taking into account all of the relevant factors (and ignoring anything which is irrelevant), should an award be made.25.4 If an award is to be made, what is the amount of the award? (And what is the time for payment, etc).[26]Rule 82 states: 82. Ability to pay In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.[27]As per the rule, “ability to pay” is something that “may” be taken into account at each of the last two stages of the decision-making. That is: should an award be made at all; if so, what is the size of the award (and the timetable for payment). A tribunal is not obliged to take “ability to pay” into account, but should specify whether it has done so or not (and, if not, why not). Generally speaking, where a party wants the Tribunal to decide that they do not have the ability to pay, then the onus is on them to(i) raise the point and(ii) provide evidence to back up the argument.[28]Rule 74, insofar as is relevant, states: 74.— When a costs order or a preparation time order may or must be made(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.[29]So one set of criteria for a costs order to be made are those set out in Rule 74(3). The tribunal is not obliged to consider making an award in such circumstances, but it may make an order. These criteria cover breaches of orders or practice direction, 6 of 9 and they also cover postponement/adjournment where the application was made more than 7 days before the hearing was due to start.[30]If the criteria set out in Rule 74(2) are met, the Tribunal must actively consider whether or not to make an award (though it is not obliged to decide to make the award). The three subparagraphs are each independent. It is sufficient that any one of (a), or (b) or (c) is met.[31]Where the argument is that the party has acted “vexatiously, abusively, disruptively or otherwise unreasonably” then the only conduct that is taken into account is that which is (either the bringing of the proceedings or) the way that the litigation has been conducted. This ground can potentially be established even where the paying party has been successful in the litigation. The precise details of the conduct in question will be relevant both the(a) whether the criteria for potentially awarding costs are met and/or(b) whether, in all the circumstances, the Tribunal should exercise its discretion to make a costs order.[32]If the criteria to potentially make a cost order are met, then the factors which are potentially relevant to the decision about whether to make such an order (and, if so, how much the award should be) include, but are not limited to, the following. However, the Tribunal’s primary duty is to follow the wording of the rules, and to make specific decisions on the merits of the case in front of it.32.1 Costs are the exception rather than the rule. A party seeking costs will fail if they do not demonstrate that the criteria for potentially making such an order (in the Tribunal rules) have been met. However, the mere fact alone that the criteria have been met does not establish that the general rule is to make a costs order in such circumstances.32.2 Costs, if awarded, must be compensatory, not punitive. If the argument that there has been unreasonable conduct is made then the whole picture of what happened in the case is potentially relevant. However, it is necessary to identify the specific conduct, and decide what, specifically, was unreasonable about it and analyse what effects it had. Some causal link between the conduct and the costs sought by the other party is required. Yerrakalva v Barnsley [2011] EWCA Civ 1255.32.3 Was the party warned that an application for costs might be made, and, if so, when, and in what terms.32.3.1 The lack of such advance warning does not prevent an application being made (or the Tribunal granting it). The rules give a party up to 28 days after the date on which the judgment finally determining the proceedings was sent to the parties. Furthermore, while the rule give the other party the right to a reasonable opportunity to make representations in response 7 of 9 to the application, it does not impose a requirement that they were warned before the application was made.32.3.2 However, the issue of whether a party (especially a litigant in person) was aware of the possibility of having to pay costs is likely to be relevant. This can be demonstrated by something other than a costs warning from the opposing party: for example, comments made at a preliminary hearing; the fact that they had been involved an earlier case in which there was a costs application; the fact that they themselves had expressed an intention to seek costs from the other side.32.4 What advice did the party have? Who from? When? Analysis and conclusions[33]It was not argued that the Respondent did not the ability to pay £300 plus VAT.[34]I agree with a lot of the Claimant’s submissions.34.1 In particular, if there was confusion at the Respondent’s end about who was supposed to be doing what, then that is the Respondent’s problem, not the Claimant’s. Nobody needs to be a qualified lawyer to be aware that if a court or tribunal makes orders, then somebody needs to take action to comply with them. Further, it is ultimately a party’s responsibility – if they choose to rely on a representative – to make sure the representative does take the required steps. In any event, the criteria for costs to be considered include where “a party (or that party's representative)” has acted unreasonably. It is not necessarily an answer to a costs application for a party to blame their representative.34.2 In addition, if the Respondent required more time to get its affairs in order then it would have been simple enough to write to the Tribunal and the Claimant to say so much earlier. A postponement application would not necessarily have been granted if the argument was that the Respondent was seeking to arrange legal representation – such applications are often refused. However, (it might have been granted, and in any event) if made and refused in good time, then the Respondent would have known that it needed to take its own steps to attend the hearing.34.3 In short, the reasons stated in the postponement application to purport to explain the lateness are inadequate.[35]All that being said, my assessment is that a relevant factor is that the Claimant applied for strike out on 13 May. The application does not say (for example) “of course, we are aware that strike out will not occur on 15 May, because that is a preliminary hearing in private for case management, but we wanted to put the other 8 of 9 side on notice of our grounds for an application that we would like to have decided in due course.” Even on the assumption that that is the meaning that the email was intended to have, I do not think that a lay person could reasonably have been expected to understand it that way. A lay person could be forgiven for thinking that the Claimant’s representatives were saying that, at the hearing on 15 May 2025, the judge should strike out the response.[36]It is certainly possible that the Respondent’s postponement application would have been made anyway. However, my assessment is that it would not be in the interests of justice to require the Respondent to pay for the costs of postponement in circumstances in which(i) the Claimant’s side had not complied with all the 18 December orders but(ii) were implying that the Respondent was in breach of them, and(iii) that the breach was so significant that strike out was appropriate. There is fault on both sides. Objectively, the hearing could have gone ahead and new dates set for the Claimant to supply the medical evidence and for the Respondent to comment on disability, but I consider that the Claimant’s representative contributed to the Respondent’s opinion that something very significant might be decided on 15 May and that they were not prepared for that.[37]Costs are the exception rather than the rule. The application is refused.