Mrs S Messi v Epic Games UK Ltd and JSS Search Ltd: 3311465/2023
EMPLOYMENT TRIBUNALS
Case No 3311465/2023
Between
Mrs S MessiClaimantEpic Games UK Ltd and JSS Search LtdRespondent
Before
Employment Judge ElliottDate 17 December 2024
JUDGMENT
COSTS The Judgment of the Tribunal is that the claim is struck out for the following reasons:[1]It has no reasonable prospects of success.[2]There has been a failure by the claimant to comply with Tribunal Orders.[3]The manner in which the proceedings have been conducted by the claimant has been unreasonable and vexatious.[4]The claimant is estopped from pursuing her contract based claims by reason of a Judgment of the Dartford County Court dated 1 November 2024.[5]The claimant shall pay the first respondent’s costs in the sum of £5,000 to be paid by 17 January 2025. Under Rule 62(3) the parties were informed that reasons having been given orally, written reasons would not be provided unless they were asked for by any party at the hearing or by a written request made by any party within 14 days of sending the written record of this decision. No request was made at the hearing.
REASONS
[1]This decision was given orally on 17 December 2024. The claimant requested written reasons.[2]By a claim form presented on 6 October 2023 the claimant Mrs Sandra Messi brings claims of unfair dismissal, race discrimination, breach of contract, holiday pay, unlawful deductions from wages, victimisation, whistleblowing detriment and dismissal and a claim under Regulation 5 of the Agency Workers Regulations 2010. This remote hearing[3]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties agreed to the hearing being conducted in this way.[4]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. One member of the public attended.[5]The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal.[6]The participants were told that was an offence to record the proceedings.[7]No witness evidence was taken. The claimant was given the opportunity to give evidence as to her means on the costs application. She chose not to do so. The issue for this hearing[8]The issue for this hearing was set out in a Notice of Hearing dated 12 June 2024 which was originally for a hearing that was due to take place on 16 July 2024. The issue was identified as: [to] consider the applications made by the respondents to strike out the claim.[9]At the hearing on 14 October 2024 Employment Judge O’Dempsey adjourned the strike out application to this hearing on 16 and 17 December 2024.[10]On 18 November 2024 the claimant made an application to strike out the respondent’s response in the claim. This was not contained in the Notice of Hearing and was not listed for the hearing today. The claimant chased up this application on 10 December 2024. That application was not a matter for this hearing.[11]The hearing that was due to take place on 16 July 2024 was postponed. The claimant had made a postponement application which was refused by Employment Judge Anstis. The claimant appealed that decision to the EAT. It was ultimately postponed by Acting Regional Judge Hawksworth on the basis that it was “extremely unlikely that the .. case could have been heard on 16th July 2024”. I understood that there was a lack of judicial resource on that date.[12]The respondents’ application was due to be heard on 14 October 2024. At that hearing before Employment Judge O’Dempsey it was adjourned to 16 and 17 December 2024 and converted to a Case Management Hearing. The reasons for this are set out in detail in Judge O’Dempsey’s Order.[13]The Orders made on 14 October 2024 included an Order for the claimant to provide further particulars of her claims. It is not in dispute that she has failed to comply with that order.[14]A further issue for this hearing was the first respondent’s costs application. Documents[15]I had the following documents for this hearing.a. A bundle of documents from R1 of 1263 pagesb. A supplementary bundle from R1 of 324 pagesc. Skeleton Arguments from all three partiesd. The R1’s authorities bundle of 518 pages (13 Authorities)e. A bundle of “documents since 02.12.2024” from the respondents.f. A bundle of tribunal documents of 49 pages.[16]There was a dispute between the parties as to whether the respondents had complied with the directions for preparation of documents of this hearing. It was clear that it would take some time to go through the chronology as to who sent what to whom and when. I discussed with the parties that it may be better to proceed with hearing the strike out application that was listed for today. I made it clear that I was not saying that the points raised were invalid, but it was perhaps not the best use of time to deal with this at the outset. All three parties were in agreement that they wished this hearing to go ahead to deal with the issue as listed. I also record that the respondents did not take issue with the claimant’s submissions being late.[17]The claimant also raised the matter of an application to introduce a recording she had made. Her representative Mr Robertson accepted that this was a matter for the preparation for the full merits hearing and a transcript would be needed of the part of the recording relied upon. Orders for disclosure have not yet been made in these proceedings and the recording will fall under this. I made no decision at this hearing on the admissibility of the recording.[18]All submissions made and the authorities referred to were fully considered, even if not expressly referred to below. R2 led the oral submissions on prospects of success and the claim being inadequately particularised and R1 led the oral submissions on vexatious conduct and non-compliance with tribunal orders. Each respondent adopted the other’s submissions on those points and supplemented with their own.
Background
[19]The respondents are referred to as R1 and R2. R1 is a gaming and entertainment business and is a client of R2 which is a staffing and recruitment business.[20]On 18 May 2023 the claimant entered into a contract of employment with a company named PayStream My Max Limited (PayStream), an umbrella company which employs contractors on short-term assignments (contract at page 238 respondents’ bundle, clause 1.1.11). PayStream is not a party to these proceedings.[21]On the face of the documents it appeared that the claimant was supplied by PayStream to R1 to carry out a fixed term assignment. I make no express finding of fact about this. R2 says it has no direct contractual relationship with the claimant or R1. R1 says it had no contractual relationship with the claimant; R1 says they had a contractual relationship with R2.[22]On 4 October 2023 R1 told R2 that it did not want the claimant to continue working on the project. The claimant’s employment was terminated. The respondents’ applications[23]R1 made a strike out application on 18 March 2024. The grounds for this application were that:(a) The claimant’s conduct in bringing the proceedings, even at an early stage, were “entirely scandalous, unreasonable and vexatious”; and/or(b) The claimant had failed to particularise her claims against them and in light of her conduct in the bringing of the proceedings, they considered her claims to be vexatious and to have no reasonable prospect of success.[24]The conduct relied upon as being scandalous, unreasonable or vexatious was put in that application as:(a) On 25 October 2023 the claimant sending multiple emails including to Watford ET, 5 individuals at R1, various individuals at R2, the SRA, the ECHR Whistleblowing Hotline, Travers Smith LLP and Lewis Silkin LLP, alleging that correspondence they had sent to the claimant was intimidation and was vexatious, malicious and dishonest.(b) On 25 October 2023, the claimant sent a further email to the same recipients copying in numerous other individuals at R1 and R2. R1 believes that this was sent with the sole purpose of seeking to intimidate them.(c) On 25 October 2023, the claimant sent two emails to Lewis Silkin LLP, copied to the SRA, saying that if Lewis Silkin continued to email, they would be blocked.(d) Sending without prejudice content to the Watford ET and to individuals at R1 and R2.(e) Sending emails to the senior executives at R1, including the CEO and CFO.(f) Sending further emails to the Information Commissioner in November 2023 and January 2024.(g) The claimant copying her emails to the Metropolitan Police and the news channels of Sky, Channel 4 and the BBC.[25]R1 said that the claimant has a history of bringing Tribunal claims. R2 had searched the Employment Tribunal’s judgments database and understood the claimant to have brought around 62 claims.[26]R1 said that the claimant should not be permitted to pursue claims made vexatiously, using the Tribunal’s resources and that time and money would be unnecessarily wasted if her claim continued.[27]R2 relied on the following examples of what they said was vexatious conduct:a. Emailing the tribunal and others and excessively copying in multiple individuals. For example I saw at page 55 of the supplementary bundle an email dated 31 July 2024 to the following tribunals: London South, London Central, London East, Watford, Midlands West, Bristol and Edinburgh, the Presidents of the ET in both Scotland and England & Wales, Legal Officers at the tribunals, ET Vetting at London Central, numerous barristers and solicitors, the EAT, Dartford County Court, the Judicial Conduct Investigations Office, her MP, the Prime Minister, other Parliamentarians, the HSE and a large number of individuals. The list of people to whom the email had been sent took up the bulk of the first page of the email.b. Accusing the respondents and their solicitors and counsel of contempt of court, perverting the course of justice and dishonesty, an example is in the supplementary bundle at page 36, to which the ICO, the SRA and the Prime Minister were amongst the long list of those copied. There were numerous examples of such correspondence set out in R2’s submissions and cross-referenced to the bundle, which I saw.c. The claimant has accused the respondents and their lawyers of perjury, intimidation and has sent without prejudice correspondence to the tribunal (for example main bundle page 801 an offer from R2 to the claimant).d. Threatening to report representatives and counsel to the police for racial harassment, discrimination and lying (supplementary bundle page 67, copied to Kent Police).e. Threatening a defamation claim against R1’s solicitor Ms Dafydd.[28]R1 said that on 16 May 2024 the claimant reported one of their solicitors to the SRA copying about 10 others and alleged that two Judges from London Central had “bullied her”. R1 said that the claimant was also corresponding with the Bar Standards Board and Kent Police, copying other individuals, agencies and companies. They said a further 25 emails were sent in June 2024.[29]As R1 had blocked the claimant’s email address, they said she had been contacting their Player Support system. They are a gaming business and this is the channel through which their customers can seek technical help. This results in a ticket being raised and the matter being sent to their legal department. They said that this was “just a small snapshot” of the claimant’s correspondence.[30]R1 contended that the claimant had “employed a tactic of sending multiple harassing correspondence to multiple parties (including the SRA and the police), in other claims”.[31]It was noted by R1 that at paragraph 69 of a decision of Employment Judge Heath sitting in London South on 15 August 2024 that the claimant had brought 62 ET claims and made 12 applications for interim relief in 3.5 years – (see supplementary bundle in these proceedings page 102). Judge Heath said that all the claimant’s interim relief applications had failed, including the one before himself. R1 submitted (paragraph 8 of submissions) there may be more proceedings which are not in the public domain if they have been settled.[32]The respondents relied on the lack of particularisation in the ET1 and referred to other Tribunal decisions concerning the claimant and other respondents where her claims have been described as unparticularised and “nothing beyond headline allegations”.[33]R1 made a costs application against the claimant. Submissions on prospects of success[34]The respondents said that due to the Judgment in the claim in the Dartford County Court, the claimant is estopped from pursuing the same claim in the Employment Tribunal. They accepted that this did not apply to any of the other heads of jurisdiction, only the contract based claims.[35]R2 says it played no part in terminating the claimant’s contractual arrangement. As the end user, they told R1 that they no longer wanted the clamant to continue with the assignment.[36]On the harassment claim, R2 said that the claimant did not allege that they took any decision to terminate her assignment so that claim cannot succeed against them.[37]On the victimisation claim, both sides said that the claim was that after “ascertaining [her] rights under awr on 05.10.2023 and not to be unfair dismissed, my access was disabled”. They said that asserting rights under the Agency Workers Regulations was not a protected act under section 27 Equality Act 2010.[38]On the whistleblowing claim they said that there were no particulars of the acts of whistleblowing or the detriment relied upon. Breach of the Case Management Order (CMO) of 14 October 2024[39]The respondents relied on the breach by the claimant of the CMO of 14 October 2024 with the continuation of the excessive emailing, by referring to without prejudice correspondence on 21 October 2024 (supplementary bundle pages 152) and on 19 November 2024 (page 214).[40]The claimant had failed to comply with the Order to provide further particulars.[41]There were further ways in which the claimant had failed to comply with the Order of 14 October 2024, notably paragraphs 4, 7 and 8 of the “Further Orders” as set out below. The claimant’s response to the application[42]On 18 March 2024 the claimant objected to the application. The claimant quoted from Rule 37(1)(a) focusing on prospects of success, rather than the scandalous or vexatious element. The claimant cited various authorities including Anyanwu and Ahir v British Airways (below).[43]The claimant also set out Rule 39 on deposit orders and quoted from section 230 Employment Rights Act. The claimant also relied on Cox v Adecco (below).[44]On 19 March 2024 the claimant alleged that the respondents and their representatives had made false statements. She did not say in her email what those false statements were meant to be.[45]On 25 June 2024 the claimant told the respondents’ solicitors not to email her “in regards to applications I am entitled to make” and said she had copied her MP, Gareth Johnson.[46]The claimant has made complaints to the Bar Standards Board about both counsel in these proceedings (those appearing at this hearing) and to the SRA about the solicitors involved. The proceedings in Dartford County Court and estoppel[47]R2 made submissions as to the claim brought by this claimant against the same respondents in Dartford County Court in case number K5QZ4P9V. I saw a Judgment from the Dartford County Court dated 1 November 2024 (page 260 of the supplementary bundle) striking out the claim against both defendants and awarding indemnity costs against her.[48]That claim was issued on 9 October 2023, three days after the presentation of the ET1 in this claim. The Particulars of Claim (supplementary bundle page 238) said: 1. Breach of Contract: The defendants did not comply with the terms and condition of my employment contract. I am also owed notice pay. 2. I am also owed 2 weeks pay because my contract was meant to start on 6.6.2023 and did not start until 16.6.2023 so owed 2 weeks pay 3. my contract is due to end on 6.12.2023 and the defendants did not comply with the terms of the contract. 4.AWR breached from 29.08.2023 did not receive equal treatment in comparison to permanent employee chelsea Keller. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 05/10/2023 to 06/10/2023 on £5,000.00 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.08[49]The Judgment of District Judge Chown said: AND UPON being satisfied that the Particulars of Claim disclose no reasonable grounds for bringing the claim as(a) there is no real prospect of the Claimant showing that there was a contract between her and either of the Defendant’s and(b) the Claimant accepting that this court does not have the jurisdiction to hear claims or the power to grant remedies under the Agency Worker Regulations 2010.[50]On 13 November 2024 the claimant made an application to set aside that Judgment on grounds that new evidence had come to light and that the defendants were dishonest in their submissions.[51]The second respondent submitted that the question of whether there was a contract between the claimant and the respondents had already been adjudicated upon by a Court of competent jurisdiction and principles of cause of action estoppel and issue estoppel were relevant.[52]In relation to the contract claims, R2 provided a helpful table in support of the argument that the claims in the ET1 in the County Court were the same: County Court particulars ET1 particulars 1. Breach of Contract: 2. Breach of contract: The defendants did not comply with the respondents failed to meet their the terms and condition of my obligations under my employment contract employment contract. I am also owed which is from 6.6.2023 notice pay until 6.12.2023 and did not provide me with notice pay. 2. I am also owed 2 weeks pay because my contract was meant to 3. arrears of pay: start on 6.6.2023 and did not start until I am owed 2 weeks pay also because i did 6.6.2023 so owed 2 weeks pay. not start on the 6.6.2023 as per my employment contract but started on the 3. my contract is due to end on 16.6.2023. 6.12.2023 and the defendants did not comply with the terms of the contract[53]They said in relation to the “new evidence” relied upon for the set-aside application, the claimant relied on 2 documents. The first was an email to herself dated 18 May 2023, which with reasonable diligence could have been put before the County Court.[54]The second document was a Statement of Works at page 202 of the supplementary bundle. The claimant’s representative, who also represented her in the County Court proceedings, conceded that this document was in the bundle in those proceedings. It is not “new evidence”.[55]R2 said that notwithstanding their arguments of cause of action estoppel or issue estoppel, the particulars of the contract claims were “woeful and inadequate and disclose no reasonable grounds for bringing these claims”. R2 said that there was a contract between the claimant and Paystream (page 238 main bundle) which defines the employer and she brought no claim against PayStream. There was no pleading as to the actual contract relied upon or the contractual terms. Judge O’Dempsey ordered the claimant to give particulars of the term relied upon and she had not done so. The claim under the Agency Workers Regulations[56]At page 246 of the supplementary bundle, I saw the claimant’s skeleton argument in the County Court proceedings. On the Agency Workers point she said at paragraph 8 (my underlining): “The Claimant argues that she was not an agency worker supplied by JSS Search Limited, but rather an employee placed by JSS Search Limited with another employer, Epic Games UK Ltd.”[57]The claimant conceded in the County Court, that they had no jurisdiction to deal with a claim under the Agency Workers Regulations (supplementary bundle page 260).[58]R1 said that in circumstances where the claimant does not believe herself to be an agency worker, her claim that she was an agency worker could not succeed (submissions paragraph 26.2).[59]I find that the claimant sought to argue what appeared to be most advantageous to her in each forum, regardless of her actual case. This is unreasonable conduct in the Employment Tribunal proceedings.[60]I also find that having run an argument in earlier proceedings in a court of competent jurisdiction that she was not an agency worker, her claim in the ET that she was an agency worker, had no reasonable prospect of This tribunal’s comments on the claimant’s extensive correspondence in these proceedings[61]On 5 July 2024, on the instructions of Employment Judge Anstis, the tribunal wrote to the parties as follows: The claimant has sent extensive correspondence to the Tribunal and, it seems, to many other individuals since the notification of the preliminary hearing was sent to her on 12 June 2024. In general, such extensive correspondence is not necessary or helpful in Employment Tribunal proceedings, The Tribunal is not equipped to address such substantial correspondence.[62]In his Order of 14 October 2024, Judge O’Dempsey warned the claimant, in wording set out in bold, that should she breach any of the orders numbered 2 - 10, her case may be struck out pursuant to Rule 37(1)(c) Employment Tribunal Rules of Procedure 2013. Orders 2 – 10 said: 2. The Claimant shall comply with these orders and shall ensure that her representative complies them also. 3. The Claimant shall only correspond with the Respondents’ respective legal representatives about matters relating to these proceedings. 4. The Claimant shall correspond professionally and politely with the Respondents’ respective legal representatives. 5. The Claimant shall not re-send historical correspondence to the Respondents’ respective legal representatives. 6. When corresponding with the Respondents’ legal representatives the Claimant shall only make reference to material that is properly and proportionately relevant to the issues in dispute. 7. The Claimant shall not make reference to without prejudice settlement discussions in open correspondence. 8. The claimant shall for the duration of these proceedings before the employment tribunal, immediately desist from repeating in correspondence, the allegations previously made by her in email correspondence against the Respondents and their representatives, whether in future correspondence or otherwise, except where it is strictly necessary and relevant to advance the issues in her claims. For the avoidance of doubt, this includes allegations of professional misconduct, defamation, perjury and intimidation. It also includes not sending messages to the First Respondent’s Player Support team. 9. The claimant shall for the duration of these proceedings, immediately desist from sending to employees of the respondent any recording of any matter in relation this claim. 10. The claimant shall not, except with the permission of the Tribunal, include as a recipient or in copy in correspondence in relation to this claim(a) any employee of the Respondents,(b) the police,(c) any regulator of the Respondents or their representatives, or(d) other persons unrelated to this claim. Nothing in this order prevents the claimant from making a complaint to the police or regulator, but should she do so she may not copy in or include as a recipient any person other than the relevant police force contact, or regulator contact.[63]In the hearing on 14 October 2024 Judge O’Dempsey drew to the parties’ attention the decision of the Scottish EAT in A v B EATS/0042/19 (paragraph 1 of the Case Summary). In that case the ET had made various orders seeking to moderate the claimant’s behaviour. The claimant acted in breach of those orders and her claims were struck out, pursuant to Rule 37(1)(c). That decision was upheld by the EAT.[64]Mr Robertson represented the claimant on 14 October 2024 and it was not in dispute that Judge O’Dempsey sat late and took time to explain what the claimant was required to do and to refrain from. The Order was[65]The claimant continued to act in breach of the Order. I give the following by way of example only. It is not an exhaustive list.[66]On 2 December 2024 the solicitor for R1, Ms Dafydd, sent the claimant a supplementary bundle containing documents arising since the hearing on 14 October. The claimant’s response about an hour and a half later was to say: “I ask that you stop making false statements that I have not comply with orders when I have complied with orders made orally by the judge. Such conduct is unreasonable and unacceptable and dishonest. This will be highlighted to the judge also.”[67]It was not false to say that the claimant had not complied with orders. The claimant does not contend, even at this hearing, that she has provided the Further Particulars ordered on 14 October. The accusation of dishonesty against Ms Dafydd was baseless.[68]On 5 December 2024 referring to without prejudice matters in an open email copied to numerous parties (page 21 bundle of supplemental documents since 2 December 2024). The claimant said: “Further evidence of the respondents and their representatives who tried to offer me a payment as a condition that I stop my dsar request and claims to the court and ET”.[69]In an email on 9 December 2024 accusing various legal representatives of “making statements that are defamatory and damaging to me” and copying counsel who acted for R1 in the County Court, despite his lack of involvement in these proceedings.[70]On 10 December 2024 accusing the respondents and legal representatives of “SLAPP tactics” and copying MP’s, Dartford County Court, the SRA, the BSB, the ICO and the Lord Chancellor Shabana Mahmood, amongst others.[71]The claimant made the same allegations the following day, 11 December 2024 and copied the Lord Chancellor, the President of the ET and others. Findings made in other proceedings[72]I set out below a flavour of some of the findings made by other Judges in claims brought by this claimant. I was mindful of the fact that my findings must and do relate to the case in question. Nevertheless, I drew inferences from comments such as those below, as to the way in which the claimant was likely to act in the course of these proceedings.[73]In a strike out Judgment made on 12 April 2022 in Messi v Cordant People Limited and ors Case no’s 2204302/2021 and 2204154/2021 Employment Judge Joffe said: “I have concluded that the claimant’s default is intentional and contumelious – she has shown disrespect to the Tribunal and its procedures and evinces no intention of complying with the Tribunal’s processes” (paragraph 9 and bundle page 287).[74]In Messi v LVMH Services UK Ltd and ors 2202400/2022 all but one of the claims were struck out. At final hearing of the victimisation claim, the claimant was found to have unreasonably failed to attend and the claim was dismissed in her absence. Employment Judge Adkin accepted the respondent’s submission that there was “significant evidence of unreasonable conduct” (main bundle page 272) and that “initiating litigation then failing to attend a hearing is ‘standard behaviour’” from the claimant (page 368).[75]In Messi v Coremount Partnership Services Ltd 2300226/2023 Employment Judge McCann said it was “beyond doubt in my view – that the claimant well understands that a tribunal claim must be properly particularised” (main bundle page 421).[76]The case of Messi v Hydrafacial UK Ltd 1300098/2023 was struck out because it was scandalous or vexatious (supplementary bundle page 107). The claimant’s conduct during this hearing[77]We returned from the lunch break on day 1 at about 13:50. At 14:01 during the course of the afternoon’s proceedings the claimant sent the following email to the SRA, the BSB and her MP and various lawyers including counsel for R1 who acted in the County Court proceedings and is not involved in this claim. The email was titled: “Asking my MP to intervene in this matter in regards to complaints against the law firms, their solicitors and barristers who continue to lie to the judges despite clear evidence that they have not disclosed and concealed-Reports to the Bar Standards Bo...” [the title was so long that it cut off][78]The email itself said: Good Afternoon Edward, Jim When the proceedings ends, we will demonstrate how Paul skinner and Rajiv B continue to mislead the tribunal during proceedings and in particular EJ Elliot based in reading observed by members of the public. And how they continue to revert to old judgments to try and influence the judge to make a decision in favour of their acting lawyers and client. I again I am attaching my MP letter in regards to the tactics law firms, counsels, solicitors uses to silence claimants to deny them a fair hearing. I will be sending evidence that they know exists since 2023 and have continue to lie it exists and the recording when I was dismissed- sent to ET. It is vexatious conduct on their part that they continue to abuse their power and behave in a manner which diminish the trust and confidence which the public places in them or in their profession. Failed to observe their duty to the court in the administration of justice and continue to mislead the court. Again urging my MP to intervene on this matters so that my evidence is heard and judge can examine claims on the merits of the claims.[79]This was received by Mr Bhatt for R1 in the course of making his submissions. I find this to be unreasonable and vexatious conduct. It is bound to be unsettling for counsel to be reported to his regulatory body, although not for the first time by this claimant and I consider it was intended to throw him off course.[80]Mr Robertson made submissions that henceforth he would take forward all correspondence and communications. I find that this would not solve anything. It was clear from the claimant’s actions during the course of this hearing that he has no influence over the way she conducts herself in the proceedings. I had no confidence that the claimant would refrain from the actions mentioned in paragraphs 2 – 10 of Judge O’Dempsey’s Order.[81]On the morning of day 2 of this hearing at 07:54 the claimant made a complaint about Judge O’Dempsey sent to the Lord Chancellor and copied to numerous others including both Presidents of the ET, Dartford County Court and the Judicial Ombudsman. The email included criticisms of the legal representatives in this case. Is a fair trial possible?[82]Both respondents said that a fair trial was no longer possible because the claimant consistently fails to cooperate with the respondents or to respect the tribunal process. They said that based on the previous judgments which are in the public domain, it was reasonable to infer that the claimant would continue to behave in this way.[83]The respondents said that the claimant had failed to heed warnings from previous Judges and on a balance of probabilities she would continue to act in a vexatious and unreasonable manner. Her correspondence since the 14 October Order and her conduct in this hearing led me to agree with that submission.[84]Mr Robertson submitted that it did not matter that the claimant was reporting the legal representatives to their regulatory bodies because everyone knew that the complaints would not be progressed while the proceedings were “in flight”, as he put it. I disagree with this submission. It is a very serious matter for a professional to be reported to their regulatory body. Mr Bhatt for R1 said that it had genuinely affected his instructing solicitor outside of her work. I expect that it did. It is worrying and upsetting to be reported, as it has career and reputational implications and has to be dealt with even if unmeritorious. No legal representative of the respondents appears to have escaped this treatment. The order for Further Particulars[85]The Order of 14 October 2024 required the claimant to provide extensive further particulars of her claim, from paragraphs 14 – 28, each paragraph being divided into sub-paragraphs. The Order was clear and straightforward in terms of the information required. The claimant had not complied.[86]Mr Robertson, who assists the claimant as a McKenzie friend and represented her at the hearing on 14 October 2024, said that he objected to the fact that the request for Further and Better Particulars was put together without input from himself. I was informed that at the hearing on 14 October, Judge O’Dempsey required counsel for both respondents to work on their request for particulars over the lunch break. I understand that the Judge then sat late going through each of the requests for particulars with the claimant’s side.[87]In my experience, it is unusual for a request for further particulars to have input from the claimant. It is the respondents who need to understand the claimant’s case, and not for the claimant to say what the respondent’s need to know. The further and better particulars ordered by Judge O’Dempsey on 14 October 2024 are routine and the sorts of questions that not only the respondents but also the tribunal, need to know. The requests for information are straightforward. The claimant needs to say how she puts her case.[88]It was also suggested by Mr Robertson that the claimant could not give the particulars before the Tribunal determined the question of employment. I disagree. The claimant knows the case she brings. It is not dependent on a decision from the tribunal. She is able to say what case she brings and answer the straightforward questions on the different heads of claim. By way of example, having brought 12 interim relief applications in the last 3.5 years, I find that the claimant knows exactly what she needs to set out for a whistleblowing claim, in terms of the disclosure she said she made, to whom and when and what detriment she says was caused.
The relevant law
[89]The EAT in Cox v Adecco 2021 ICR 1307 stressed the importance of understanding a claim before it is possible to consider a strike out on the basis of it having no reasonable prospect of success. HHJ Tayler said at paragraph 28: “you can't decide whether a claim has reasonable prospects of success if you don't know what it is”. HHJ Tayler set out 9 points of guidance on how to handle such applications generally. They are:(1) No one gains by truly hopeless cases being pursued to a hearing.(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate.(3) If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate.(4) The claimant’s case must ordinarily be taken at its highest.(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is.(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim.(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing.(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer.(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.[90]Rule 37 of the Employment Tribunal Rules of Procedure 2013 provides that at any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on grounds:a. that it is scandalous or vexatious or has no reasonable prospect of success.b. that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious.[91]A claim may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[92]The tribunal must first consider whether any of the grounds in Rule 37(1) are made out and secondly, if so, whether to exercise the discretion to strike out.[93]Rule 39 provides as follows(1) Where at a preliminary hearing …. the Tribunal considers that any specific allegation or argument in a claim …. has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal's reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.[94]In Anyanwu v South Bank Students’ Union 2001 ICR 391 the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact sensitive and require full examination to make a proper determination. It may be necessary to determine whether discrimination is to be inferred.[95]There is no blanket rule that discrimination cases involving disputes of fact cases cannot be struck out. At paragraph 39 in Anyanwu Lord Hope said that he would have held that the claim should have been struck out if persuaded that it had no reasonable prospect of succeeding at trial. He said: “The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail”.[96]In Balls v Downham Market High School and College 2011 IRLR 217 the EAT said that the test is not whether the claim is likely to fail; nor is it a matter of asking whether it is possible that the claim will fail. It is not a test that can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is a high test. If can be unfair to strike out if there are crucial facts in dispute and there has been no opportunity to test the evidence. Strike out is a draconian power.[97]In AH v Ishmail and Al-Megraby EAT/0021/16 the EAT made the point that one of the purposes of a deposit order is to signal to the claimant the assessment of little reasonable prospects of success and warning her as to costs (paragraph 25).[98]In Abertawe Bro Morgannwg University Health Board v Ferguson 2013 ICR 1108 the EAT said that although in suitable cases applications to strike out may save time expense and anxiety, in cases that are likely to be heavily fact sensitive the circumstances in which a claim will be struck out are likely to be rare.[99]Ezsias v North Glamorgan NHS Trust 2007 IRLR 603 notes at paragraph 29 that in an exceptional case strike out is possible. The test is not “exceptionality”; it is whether there is no reasonable prospect of[100]Ahir v British Airways plc 2017 EWCA Civ 1392 holds that employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established (paragraph 16).[101]In terms of a strike out under Rule 37(1)(b) on grounds that that the manner in which the proceedings have been conducted by the claimant has been scandalous, unreasonable or vexatious, the case law sets out four principles, for example Bloch v Chipman 2004 IRLR 140 and Blockbuster Entertainment Ltd v James 2006 IRLR 630. The tribunal must decide whether there has been scandalous, unreasonable or vexatious conduct; if so it must consider whether a fair trial is still possible, whether strike out would be proportionate and what further consequences might follow.[102]Lord Bingham in Attorney General v Barker 2000 1 FLR 559 said: “The hallmark of a vexatious proceeding is…that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and it involves an abuse of the process of the court, meaning that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.” .[103]In Attorney General v Kuttappan EAT/0478/05 the EAT said: Cases of allegedly vexatious litigants in ordinary civil litigation usually concern repeated claims or applications against the same defendant or defendants in respect of a particular matter by which the litigant has become obsessed. In the employment law field, what is more commonly seen is the making of repeated tribunal applications of a like type against different respondents, the claims often following an unsuccessful job application. (paragraph 5).[104]In De Keyser Ltd v Wilson 2001 IRLR 324 the EAT held that neither a claim nor response should be struck out on the basis of a party’s conduct, unless a fair trial was no longer possible.[105]The distinction between cause of action estoppel and issue estoppel is set out by the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd 2014 AC 160 at paragraph 20: “Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue. Decision on the strike out application Failure to comply with the Order of 14 October 2024[106]I deal firstly with one of the authorities relied upon by the claimant of Cox v Adecco. This case says: “you can't decide whether a claim has reasonable prospects of success if you don't know what it is”. HHJ Tayler said that reasonable attempts must be made to identify the issues before striking out or making a deposit order and the claimant’s case must normally be taken at its highest and particular care must be taken when dealing with a litigant in person.[107]For most litigants in person this is their first time grappling with the law and procedure involved. This claimant on the other hand is an experienced litigator. She frequently attaches or cuts and pastes large quantities of case law to her correspondence. She knows from her previous claims about the need to particularise a claim. Judge McCann found as much in the claim against Coremount Partnership Services Ltd (quoted above).[108]This claim is brief, running to 8 short paragraphs in box 8.2 of the ET1. The lack of particulars gave rise to an obvious need for further information. Two of the paragraphs are set out in the box above comparing the ET1 and the County Court Particulars of Claim. The remaining six paragraphs are: 1. Failure to comply with agency Workers Regulations 2010: Both responsdents did not comply with the provisions in regulation 5 of the AWR. From 25.08.2023, I did not receive equal treatment in comparison to chelsea Keller who is a permanent employee, also Maria Burton, Wilma Perry and other permanent employees. see case law Stevens v Northholt High School ( ET/3300621/2014) ….(paras 2 and 3 are above) 4. Direct Discrimination - Race I was discriminated against because of my race when they terminated my employment and mentioned laid offs. This not the case for my comparator chelsea Keller who i was recruited to replace for maternity leave who is due to return in november 2023, The role still exist. getting paid less than chelsea K 5. Harrasment : Race choosing to terminate my role in comparison to chelsea Keller Getting paid less than chelsea K 6.Victimisation after ascertaining my rights under awr on 5.10.2023 and not to be unfairly dismissed, my access was disabled on 6.10.2023 and was not able to work 7.whistleblowing: Unfairly dismissal- Section 103A, ERA I was unfairly dismissed for making protected disclosures in the public interest, in good faith and with facts. 8. Unlawful detriment- Section 47B, ERA I suffered from a detriment from making protected disclosures[109]The claimant is familiar with Cox v Adecco and often quotes it in her extensive correspondence. I find that this means she knows that a claim needs to be properly particularised. Cox v Adecco does not provide a blanket ban on a strike out of an unparticularised claim. It is not an escape clause for experienced claimants who fail to give proper particulars. It is there to protect litigants in person who are most often dealing with the tribunal process for the very first time and do not know what is required.[110]The claimant also knew about the need to particularise her claim because she was ordered by Judge O’Dempsey to do so. She has failed to comply with this Order. In the knowledge of the need for the details, two opportunities to do so were missed: the first in the ET1 and the second as ordered on 14 October 2024. This prevented the respondents from drafting a workable List of Issues and holds up the progress of the claim. The claimant asked for more time and more case management which I find to be unreasonable.[111]In her own Skeleton Argument for this hearing, the claimant gave a heading “Legal Issues” which did not, in the main, relate to the claims she brought. She referred to Misrepresentation, Breach of Statutory Obligations without identifying the specific legal obligations, other than a generic reference to the Employment Rights Act. She referred to Employment Status and Procedural Fairness. The basis for these claims was not set out. The claimant also referred to other matters not included in her ET1, being Regulatory Compliance, the Immigration, Asylum and Nationality Act and the Companies Act.[112]This claimant in this case knows far more than the average litigant in person about Employment Tribunal litigation and what is required. In Barton v Wright Hassall LLP 2018 UKSC 18 the Supreme Court said that since the rules [in that case the CPR] provided a framework within which to balance the interests of both sides, unrepresented litigants were not entitled to any greater indulgence in complying with them than represented parties. This is unless the particular rule or practice direction was inaccessible or obscure (see paragraph 18). The claimant in this case knew exactly what she had to do in terms of providing further information and has failed to comply.[113]The claimant was warned in the Order of 14 October 2024 that a breach of that Order may result in her case being struck out pursuant to Rule 37(1)(c) which is for non-compliance with any of the Rules or with an order of the Tribunal.[114]Given that the claimant is an experienced litigant, knows what is required, was ordered to do so and warned that strike out may be a consequence of non-compliance, the claim is struck out under Rule 37(1)(c). No reasonable prospects[115]I make the following decision on the prospects of success on each head of claim.[116]Victimisation: On the victimisation claim there is no protected act relied upon under section 27 Equality Act. The claimant says: “after ascertaining my rights under awr on 5.10.2023 and not to be unfairly dismissed, my access was disabled on 6.10.2023 and was not able to work”. An assertion of rights under the Agency Workers Regulations 2010 (AWR) is not a protected act under section 27 Equality Act. The victimisation claim has no reasonable prospect of success. I am satisfied that the claimant knows about her rights under the AWR because she refers to Regulation 5 in the ET1.[117]Breach of contract: The claimant knew the identity of the party with which she had formed a contract. She said in paragraph 6 of her Skeleton Argument “The Claimant subsequently received a contract identifying PayStream as the employer”. She signed that contract electronically on 18 May 2023.[118]The claimant was not in a contractual relationship with either R1 or R2. The finding of District Judge Chown in the Dartford County Court was that there was no reasonable prospect of the claimant showing that there was a contract between her and either defendant – being the respondents in this case. I also find she entered into a contract of employment with PayStream and there is no reasonable prospect of her showing that there was a contract between herself and either respondent.[119]It is necessary to have been employed in order to bring a breach of contract claim under the Employment Tribunals Extension of Jurisdiction Order 1994. I find that the breach of contract claim has no reasonable prospect of success and should be struck out.[120]Unfair dismissal: The claim for unfair dismissal is dependent upon the claimant being an employee of one or other respondent. I find for the above reasons that there is no reasonable prospect of the claimant showing she was employed by either respondent. The claim for unfair dismissal has no reasonable prospect of success.[121]Holiday pay and unlawful deductions from wages: Any other claim reliant on a contract between the claimant and one or other of the respondents has no reasonable prospect of success for the same reason. The contractual responsibility for wages and holiday pay, lay with PayStream under the contract she entered into with that company. Remuneration was dealt with at clause 10 (page 241 main bundle) and holidays at clause 13 (page 242). The claims for holiday pay, unlawful deductions from wages against these respondents have no reasonable prospect of[122]Whistleblowing detriment: There is no pleading as to the disclosure made, to whom and what it said, what it tended to show or how it was said to be in the public interest. Having made 12 interim relief applications in the last 3.5 years I find that the claimant knows what she needs to set out. Nothing is relied upon by way of a detriment other than saying “I suffered from a detriment from making protected disclosures”. I find if the claimant had made a protected disclosure, she would by now have said what it was.[123]I find that this vague unparticularised allegation is tactical and vexatious and has no reasonable prospect of success.[124]Agency Workers Regulations: The claimant herself argued in the County Court that she was not an agency worker. This was in her Skeleton Argument in those proceedings at paragraph 8 (quoted above). It is not open to her to assert in one set of proceedings (County Court) that she is not an agency worker but assert in another set of proceedings (ET), on the same set of facts, that she is an agency worker.[125]The claimant accepted that the County Court did not have jurisdiction over the Agency Workers Regulations 2010 (see Judgment, supplementary bundle page 260). It is not open to her to change her position because it appears more advantageous to argue in the Employment Tribunal that she was an agency worker.[126]The claimant maintained a position, in submissions, in a court of competent jurisdiction, that she was not an agency worker. I find her claim in the ET that she was an agency worker, has no reasonable prospect of success. It is a contradiction of her own position. The claimant was represented by Mr Robertson at the hearing in the Dartford County Court.[127]Race discrimination – direct and harassment: The claim for race related harassment is put as “choosing to terminate my role in comparison to chelsea Keller. Getting paid less than Chelsea K”. The claim in relation to pay has no reasonable prospect of success against either respondent. The contractual obligation to pay the claimant lay with PayStream. There was no suggestion that Chelsea Keller was employed by PayStream. Direct race discrimination was put as termination of employment and this has no reasonable prospects of success for the reason set out above. The claimant has no reasonable prospect of showing that she was an employee or R1 or R2. Conduct in terms of failure to comply with the Order of 14 October 2024[128]On the question of whether the manner in which the proceedings have been conducted by the claimant has been scandalous, unreasonable or vexatious, my focus is on what has happened in these proceedings. The question of whether the claimant is more generally a vexatious litigant is not a question for this Tribunal.[129]In the CMO of 14 October 2024, Judge O’Dempsey said that on the face of the document the claimant had behaved in a manner which was not appropriate towards the legal representatives. He said: “…By making the above orders I am giving the claimant what is in effect the last chance to reach an appropriate standard of behaviour. If she breaches the orders it is highly likely that a judge would be prepared to strike out her claim for failure to abide by these orders. She cannot expect further orders, including “unless orders” to be made prior to a decision to strike out if the orders are breached by her.”[130]I consider that the claimant’s conduct in disregarding the directions and warnings given in the CMO of 14 October 2024 to be vexatious. Having been told only to correspond with the respondents’ respective legal representatives about matters relating to these proceedings and to correspond professionally and politely with those representatives, she continued her tactic of copying everyone she could think of and making accusations and allegations against those representatives. On my finding this was with the intention of harassing the respondents and their representatives and putting them under pressure. There was no legitimate need for this and it is an abuse of the process of the tribunal. Failure to comply with tribunal orders[131]The claimant has failed to provide the further particulars ordered on 14 October 2024. In submissions Mr Robertson asked for “a chance” to provide better particulars. A “last chance” was already given by Judge O’Dempsey at a hearing at which Mr Robertson was present. I agree with the respondents’ submission that asking for yet another chance was “too little, too late”. The claimant had her first opportunity, in the knowledge of what is needed, in her ET1 and a second chance as ordered on 14 October 2024. She was now making a request for a third chance.[132]Mr Robertson’s position was that the claim needed to be case managed. It has been case managed. The claimant has failed to comply. This is unreasonable conduct. The opportunities to plead the case are not limitless. The respondents incur time and cost seeking to understand the basis of the claim and attending hearings to bring this about. It is not a proportionate use of tribunal resources to list another case management hearing when the claimant has failed to comply with what she has already been ordered to do. Vexatious or unreasonable conduct[133]I have set out above examples of the instances, which are numerous, in which the claimant has failed to comply with paragraphs 2 – 10 of Judge O’Dempey’s Further Orders.[134]As I have said above, Mr Robertson made submissions that henceforth he would take forward all correspondence and communications so that all would be well. I have found that this would not solve anything. Mr Robertson has no influence over the way in which the claimant conducts these proceedings as was highlighted by her reporting the legal representatives to their regulatory body during the course of this hearing.[135]I take note of what was said by the EAT in A v B (above) by Lord Summers at paragraph 60: The Tribunal evidently considered that abusive communications were capable of impinging on the fairness of the Tribunal’s process and the aim of securing a fair trial. I have no difficulty in accepting that communications that undermined or had the potential to undermine Mr Gunn’s ability to represent his client would be in breach of the orders. [Mr Gunn was the respondent’s solicitor][136]Mr Robertson said in oral submissions: “Maybe I agree, we shouldn’t be emailing the BSB and SRA when the case is in flight and I apologise. I am aware, if there is any question of misconduct or dishonesty when it concludes, that is the time to raise any questions and to refer those matters to the BSB and SRA and I am aware of the mechanisms”.[137]The claimant’s conduct in the continual reporting of legal representatives to the BSB and SRA in the course of these proceedings is vexatious and unreasonable and unlikely to cease if her claim continues. It undermines the ability of those legal representatives to do their job properly and to represent their clients to the best of their ability.[138]It is important for me to say that all the correspondence I saw from the legal representatives involved, appeared appropriate and professional. To receive this continual bombardment of emails, copied to everyone the claimant can think of, is likely to have an effect on the way they prepare their case. It has the potential to undermine the way in which they represent their clients and I find on a balance of probabilities that it is done with this intention.[139]As the claimant has continued with this style of correspondence, including twice during the course of this hearing, I find on a balance of probabilities that she will continue to do so, that it is harassing in nature and that undermines the process. I find that a fair trial is no longer possible.[140]To the extent that Mr Robertson submitted that this tribunal cannot rely on comments made by other Judges in other decisions, where those claims have not come to a conclusion; I disagree. The decisions are Judgments of public record, even where those proceedings have not reached a full merits hearing such as in an interim relief application. I draw an inference from the comments made in other cases, such as those quoted above, that the claimant will continue to act in the same manner. Contract claims and estoppel[141]I find that the claimant is estopped from pursuing the contract claims. They were pursued and adjudicated upon by a Court of competent jurisdiction, namely the Dartford County Court on 1 November 2024.[142]I recognise that there is an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, which could not by reasonable diligence have been adduced in those proceedings as set out in the Virgin Atlantic case (above).[143]The claimant’s application for setting aside that judgment is on the basis of “the discovery of new evidence”. As I have found above, the documents she seeks to rely upon are not new. One was an email to herself on 18 May 2023 which she could have put before that court. It was conceded that the other document was included in the bundle in those proceedings. As there has been no discovery of new evidence, I find it unlikely that the set aside application will succeed and that the original decision will stand.[144]I find that the claimant is estopped from bringing her contract-based claims as this has already been adjudicated upon by a court of competent jurisdiction. Summary[145]In summary, the claim is struck out under Rule 37(1)(a) because it has no reasonable prospect of success; under Rule 37(1)(b) because the manner in which the proceedings have been conducted is vexatious and under Rule 37(1)(c) for non-compliance with Tribunal Orders.[146]Additionally, the claimant is estopped from pursuing any claim that is reliant upon a contract with R1 or R2, because the County Court has adjudicated that she had no contractual relationship with R1 and R2.[147]Each part of this decision on strike out stands alone as a reason for striking out the claim. The first respondent’s costs application[148]R1 included in its submissions an application for costs. In support of its application, R1 repeated its submissions made in the strike out application. R1 also submitted that in the light of the claimant’s previous unparticularised claims, in particular Messi v Manpower (UK) Ltd 3314273/2021, she knew that her claims had no reasonable prospects of success, or at the very least ought to have appreciated it.[149]R1 claimed a total of £11,098. There was a summary of the costs and a detailed breakdown of solicitors’ time costs in the main bundle at pages 208/209. This included the costs of preparing the initial strike out application dated 18 March 2024 at £800, the costs of preparing the updated strike out application dated 2 July 2024 at £2,828 and costs of the one day PH for 16 July 2024 at £7,460.[150]Since the preparation of the Schedule of Costs, further costs were incurred.[151]There is a two stage test. R1 relies on Rules 76(1)(a) and (b) and the findings made on this application, that the claimant has acted vexatiously and unreasonably and the claim has no reasonable prospect of success. This is an experienced tribunal litigant who knows what she needed to set out to make out he claim.[152]On the matter of the tribunal’s discretion, R1 said there was no reason not to exercise the discretion. They said that the claimant is vexatious and the claim had no reasonable prospect of success, plus the estoppel argument.[153]R1 said that Yerrakalva says that the tribunal needs to have regard to the costs caused by the claimant’s conduct. R1 said it has only charged a small proportion of the actual costs incurred. R1 said it only claimed in respect of the hearing adjourned in July 2024 and did not claim for 14 October 2024 or for this hearing on 16 and 17 December 2024. For the work undertaken the claim was £6,000 for about 18 or 19 hours of work and the claimant’s conduct had incurred significantly more cost.[154]No refresher fee was claimed by counsel for day 2 of this hearing and no brief fee was claimed for the October hearing.[155]On the basis of the findings made, R1 submitted that the threshold test for an award of costs was met. R1 said that the tribunal need not take into account of the claimant’s means – Rule 84 says that the tribunal “may” not “shall” take her means into account. The claimant had been aware of this costs application since 2 July 2024. She did not produce any evidence as to her means.[156]I gave Mr Robertson a short break to take instructions as to whether the claimant wished to give evidence as to her means. I told Mr Robertson that he was not able to give that evidence on the claimant’s behalf, as it was her evidence to give. The claimant, who was present in the hearing, chose not to give evidence but wished to rely on a document that showed she was on Universal Credit.[157]I had no evidence as to any other aspects of the claimant’s means.[158]Mr Robertson said that the claimant was currently unemployed and if a costs order was made she would be in financial hardship. Once again, this was not evidence from the claimant.[159]It was asserted that the claimant has a disability. In box 12.1 of the ET1, page 18 of the main bundle, it asked: “do you have a disability” and the answer from the claimant was “no”. There were medical documents in the bundle showing that the claimant has anxiety and depression and was on medication. I accept and find that the claimant has health issues.[160]Mr Robertson said that the claimant is on Universal Credit. Based on the figures he had seen, the claimant’s average monthly income was approximately £714.10, equating to a daily income of £23.81. He said this income falls significantly short of the estimated daily cost of living in London, which is approximately £65 per day. It was submitted that the claimant was in a negative financial position of £40 per day and she would be in severe financial hardship[161]Mr Robertson said that the claimant had no savings or financial assets, and her income barely covers essential living expenses, leaving her unable to pay any costs award. The claimant chose not to give evidence on this and could not be cross-examined as to her ability to pay. I could not accept this as evidence from Mr Robertson.[162]The claimant relied on the following cases: It was said that following Hemdan v Ishmail 2017 EAT/0317/16 tribunals must carefully consider a party's financial situation when assessing costs. I looked at this case which is also reported at 2017 IRLR 228. It concerns the making of a deposit order, not a costs order, where the claimant was a victim of trafficking. The deposit order in that case was reduced to £1. This case was not on point with the present case.[163]Mr Robertson also relied on a case called Ezomo v Oxford University 1999 EAT/1114/99 which he said holds that claimants must not be penalised with costs if doing so would create significant financial hardship. I was not aware of this case. It predates the time when EAT judgments went online and I could not locate it elsewhere. I was not provided with a copy of this authority. Vaughan v London Borough of Lewisham (below) is a later case, a decision of Mr Justice Underhill as he then was, which says that affordability is not the sole criterion for the exercise of the discretion to award costs.[164]R1 replied saying that the evidence provided was inadequate. There were no bank statements and no evidence as to other assets such as property. The onus is on the paying party to give sufficient evidence as to means and the information given by Mr Robertson was not evidence he could give. R1 asked the tribunal not to take into account the claimant’s means. R1 said an inference could be drawn as to why she had chosen not to given evidence. Relevant law on costs[165]Costs do not follow the event in employment tribunal proceedings and an award of costs is the exception and not the rule (Lord Justice Mummery in Barnsley Metropolitan Borough Council v Yerrakalva 2012 IRLR 78).[166]The power to award costs is contained in Rule 76 of the Employment Tribunal Rules of Procedure 2013 which provides that:(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, 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) or the way that the proceedings (or part) have been conducted; or (b) any claim….. had no reasonable prospect of success; ……..(2) ….where a party has been in breach of any order or practice direction.[167]The Court of Appeal held in Yerrakalva (above) that the vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there was unreasonable conduct in bringing and conducting the case and in doing so, to identify the conduct, what was unreasonable about it and what effects it had. There does not have to be a precise causal link between the unreasonable conduct in question and the specific costs being claimed.[168]“Unreasonable” has its ordinary English meaning and is not to be interpreted as if it means something similar to vexatious: Dyer v Secretary of State for Employment EAT/183/83.[169]Rule 84 says that in deciding whether to make a costs or a wasted costs order and if so, in what amount, the tribunal may have regard to the paying party’s ability to pay.[170]Affordability is not the sole criterion for the exercise of the discretion – Vaughan v London Borough of Lewisham (No. 2) 2013 IRLR 713.[171]The EAT in Raggett v John Lewis plc 2012 IRLR 906 said that where a party is registered for VAT and able to recover VAT on its counsel’s fees and solicitors’ costs as input tax, to award costs including VAT would represent a bonus to that party compensating over and above the costs incurred and would represent a penalty to the paying party.[172]In Radia v Jefferies International Ltd 2020 IRLR 431, the EAT provided guidance as to how tribunals should approach an application for costs in which the receiving party claims that the paying party brought and/or continued claims which had no reasonable prospects of success. The EAT held that the assessment consists of a 3-stage process (paragraph 64):a. Did the complaints in fact have no reasonable prospects of success?b. If so, did the complainant in fact know or appreciate that?c. If not, ought they, reasonably, to have known or appreciated that?[173]The EAT went on to say that the question as to whether the claim had no reasonable prospects of success is judged on the basis of information that was known or reasonably available at the start and considering how at that point the prospects of success would have looked. At paragraph 67 the EAT said: “as long as [the ET] maintains its focus on how things would have looked at the time when the claim began, it may, and should, take account of any information it has gained, and evidence it has seen, by virtue of having heard the case, that may properly cast light back on that question…”. Decision on the costs application[174]Based on the findings made on the substantive application, I find that the threshold test for costs is met. The claimant has acted unreasonably and vexatiously in these proceedings and her claim had no reasonable prospect of success. This falls within Rule 76(1)(a) and (b). I make the decision to award costs against the claimant to R1.[175]In terms of quantum, I considered the Solicitors’ Hourly Guideline Rates in place from 1 January 2024.[176]The rates claimed, excluding VAT, were: Legal Director £420 (to 31/03/2024) Senior Associate £370 (to 31/03/2024) Legal Director £465 (from 01/04/ 2024) Senior Associate £410 (from 01/04/2024) Paralegal £120 (from 01/04/2024)[177]The Legal Director involved is based in Oxford which is National Band 1 at £278 as has more than 10 years experience, the Senior Associate is Ms Dafydd, who is also National Band 1 and she has more than 10 years experience. The paralegal rate claimed is lower than amount given in the National Bands. No partner time had been charged.[178]R1 said that as the amount claimed was much less than the amount actually incurred, it was not necessary to go too deeply into the detail. I accepted this.[179]Counsel’s brief fee for the hearing on 16 July 2024 was £5,000. No refresher fee was claimed by counsel for day 2 of this hearing and no brief fee was charged for the October 2024 hearing.[180]Affordability is not the sole criterion for the exercise of the discretion to award costs. Mr Robertson’s first case law authority was not on point and I was not provided with and could not access his second authority. I was not familiar with it.[181]I took into account that the claimant is on Universal Credit and that is the reason why I choose not to award the full amount of the costs claimed. I limit the award of costs on this summary assessment to counsel’s brief fee, claimed at £5,000.[182]R1 sought payment within 14 days by 31 December 2024. Mr Robertson said that this was the festive period and asked for one calendar month which I agreed.[183]R2 said they did not make a costs application at this hearing but reserved the right to make a costs application as the Rules allow.