Mr A Agrawal v London North West University Healthcare NHS Trust: 3313448/2023
EMPLOYMENT TRIBUNALS
Case No 3313448/2023
Between
Mr A AgrawalClaimantLondon North West University Healthcare NHS TrustRespondent
Before
Employment Judge AlliottIn person for claimantMr B Jones (instructed by counsel) for respondentDate 6 March 2025
JUDGMENT
[1]The claimant’s application for relief from sanction is refused and the claimant is debarred from relying on his witness statement.[2]The claimant’s claim is struck out for non-compliance with an order of the tribunal pursuant to Rule 38(1)(c) of the Employment Tribunal Procedure Rules 2024.
REASONS
Introduction
[1]Pursuant to an order of Employment Judge Quill, made on 29 November 2024, the claimant is debarred from relying on witness evidence at the final hearing for not exchanging his witness statement by 4pm, 9 January 2025, and consequently needs relief from sanction in order to do so.
The evidence
[2]On 14 January 2025, the respondent made an application to strike out the claimant’s claim for non-compliance with the tribunal’s orders.
The law
[3]As regards relief from sanction, Rule 30 provides:- “Case management orders 30.— … (3) A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice…”[4]I note that the analogous order dealing with unless orders in Rule 39 also references the interests of justice when considering whether to set aside a dismissal consequent upon an unless order.[5]In addressing the interests of justice I have to have regard to the overriding objective. This provides:- 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing,(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues,(c) avoiding unnecessary formality and seeking flexibility in the proceedings,(d) avoiding delay, so far as compatible with proper consideration of the issues, and(e) saving expense. (3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, …”[6]Although more familiar in the County Court, applications for relief from sanction are governed by the three stage ‘Denton’ test, namely:(1) assess the seriousness and significance of he breach(2) consider why the breach occurred(3) evaluate all the circumstances of the case to deal with it fairly.[7]I have lifted much of the law on strike outs from the judgment of Mrs Justice Stacey in the case of Bharaj v Santander UK Plc and others [2023] EAT 152.[8]Where the exercise of a power may result in a terminating ruling, such as a decision to strike out a claim or response, the exercise of the discretion must also be approached through the lens of the Court of Appeal authority of Blockbuster Entertainment Ltd v James [2006] IRLR 630: “5. This power [a reference to what is now the power to strike out for unreasonable conduct under Rule 37(1)(b)] as the employment tribunal reminded itself, is a draconian power not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. …20. It is common ground that, in addition to fulfilling the requirements outlined in paragraph 5 above, striking out must be a proportionate measure.21. It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law… has for a long time taken a similar stance: See Re Jokai T Holdings [1992] 1 WLR 11 96, especially at 1202 E-H. What the juris prudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact if it is a fact that the tribunal is ready to try the claims: or as the case may be that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for strike out. It is an important check, in the overall interests of justice, upon their consequences.”[9]The lead reported case specific for strike out for non-compliance with an order is Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371. The relevant paragraphs from the judgment are as follows:- “13 What are the principles on which the employment tribunal should act in deciding whether to strike out in a case such as this, where there has been a breach of a direction?[14]Where the unreasonable conduct which the employment tribunal is considering involves no breach of a court order, the crucial and decisive question will generally be whether a fair trial of the issues is still possible…[15]Even if a fair trial as a whole is not possible, the question of remedy must still be considered so as to ensure that the effect of a debarral order does not exceed what is proportionate; See Bolch v Chipman at pages 23-25. For example, it may still be entirely just to allow a defaulting party to take some part in a question of compensation which he is liable to pay: See page 25.[16]Those principles apply where there is no disobedience to an order. What if there is a court order and there has been disobedience to it? This is an additional consideration. The principles which we have set out above do not apply in the same way. The Tribunal must be able to impose a sanction where there has been wilful disobedience to an order: See DE Keyser v Wilson at paragraph 25, Bolch v Chipman at page 22.[17]But it does not follow that a striking out order or other sanction should always be the result of disobedience to an order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.”10. In the unreported case of Baber v Royal Bank of Scotland UK EAT 0301/15/JOJ & UK EAT 0302/15/JOJ (EAT) Simler P (as she then was) the issue was considered in some depth in the specific context of an application under Rule 37(1)(c). “12. It is common ground and accepted by Mr Campbell that in deciding whether to strike out a party’s case for non-compliance, tribunals must have regard to the overriding objective of seeking to deal with cases fairly and justly. That is the guiding principle and requires consideration of all the circumstances and, in particular, the following factors: The magnitude of the non-compliance; whether the failure was the responsibility of the party or his or her representative; the extent to which the failure causes unfairness, disruption or prejudice; whether a fair hearing is still possible; and whether striking out or some lesser remedy would be an appropriate response to the disobedience in question.”11. She had thus adopted the checklist in Weir Valves. She continued: “13. Even in a case where the impugned conduct consists of deliberate failures in relation, for example, to disclosure, the fundamental question for any tribunal considering the sanction of a strike out is whether the party’s conduct has rendered a fair trial impossible.”12. Of the trio of cases listed by Sedley LJ at Blockbuster she set out the four stages identified by Burton P in Arrow Nominees:- “(i) There must be a finding that the party is in default of some kind falling within Rule 37(1). (ii) If so, consideration must be given to whether a fair trial is still possible and save in exceptional circumstances, if a fair trial remains possible, the case should be permitted to proceed. (iii) Even if a fair trial is unachievable, consideration must be given to whether strike out is a proportionate sanction or whether there may be a lesser sanction that can be imposed. (iv) If strike out is the only proportionate and fair cause to take, reasons should be given why that is so.”13. A further relevant authority is the judgment of Choudhury P in Emuemukoro v Croma Vigilant (Scotland) [2022] ICR 327: “26. If there are several possible responses to unreasonable conduct, and one of those responses is “less drastic” than the others in achieving the end for which the strikeout power exists, then that would probably be the only proportionate response and the others would not. There may be cases, which are likely to be rare, in which two or more possible responses are equal in terms of their efficacy in achieving the desired aim and equal in terms of any adverse consequences. However, in most cases there is likely to be only one proportionate response which would be the least drastic of the options available.”14. Applying the legal principle to the facts of the case before he noted the following:- “28. It was a highly relevant factor, as confirmed by the Court of Appeal in Blockbuster, that the strike out application was being considered on the first day of the hearing. The parties were agreed that a fair trial was not possible in that hearing window. In other words, there were no options, such as giving the respondent more time within the trial window to produce its witness statements or prepare a bundle of documents, other than an adjournment. If an adjournment would result in an acceptable prejudice (a conclusion that is not challenged by the respondent), then that leaves on the strike out. The tribunal did not err in considering the prejudice to the respondent; indeed, it was bound to take that into account in reaching its decision.” The facts15. The claimant was employed by the respondent as a Consultant Surgeon from 1 May 2018 until summary dismissal with effect on 30 June 2023. By a claim form presented on 24 November 2023 the claimant presents claims of unfair dismissal, unauthorised deduction of wages and a claim for accrued annual leave not taken at the date of dismissal.16. The particulars of claim does state:- “The claimant was dismissed because he had raised patient care concerns.” 17. Notwithstanding that comment, the claim was coded UDL with no suggestion of PID automatically unfair dismissal. In its response the respondent asserted that there were aspects of the claims that remained unclear and requested a preliminary hearing.[18]No preliminary hearing was ordered, and a full merits hearing was listed for 29,30 and 31 January 2025 on 7 March 2024. Case management orders were made as follows:-18.1 Claimant to serve a schedule of loss: 21 March 202418.2 Claimant and respondent to exchange list of documents: 4 April 202418.3 Respondent to prepare a bundle: 18 April 202418.4 Claimant and respondent to exchange statements of evidence: 2 May[19]On 7 March 2024, the respondent emailed the claimant suggesting variations to the timetable to push back the deadlines for disclosure to 4 November 2024, creation of the bundle to 18 November 2024 and exchange of witness statements to 2 December 2024.[20]The claimant did not respond to or acknowledge that approach.[21]On 15 March 2024, the respondent emailed the employment tribunal requesting the variations as aforesaid. Unfortunately, that application was not dealt with by the employment tribunal.[22]On 4 April 2024, the respondent emailed the claimant noting that it had not heard from the claimant concerning the revised timetable, asking if the claimant agreed with the corrected name for the respondent and requesting the statement of remedy which had been due on 21 March 2024. The claimant was asked to confirm that he was pursuing the case.[23]On 16 April 2024, the claimant responded that it was his intention to provide the details and documents as soon as possible.[24]The respondent sent chasing emails on 24 May and 14 August 2024. The claimant did not reply.[25]On 1 October 2024, the respondent resent its application to vary the case management timetable to the tribunal.
The law
[26]On 11 October 2024, the respondent applied to the tribunal for an unless order against the claimant for non-compliance with the direction to agree the respondent’s name and provide a schedule of loss. Since both parties were then in default of the case management orders, such an application may be regarded as ambitious.[27]Be that as it may, Employment Judge Quill considered the application to vary the timetable and in an order dated 30 October 2024 the application was refused. Both parties were required to write to the tribunal to indicate if they objected to the claim and/or the response being struck out.[28]Also on 30 October 2024, the respondent emailed the claimant endeavouring to agree a draft list of issues. The claimant did not respond.[29]The claimant responded on 13 November 2024 indicating that he did not want his claim struck out. His letter includes the following:- “The whistleblowing aspect of the claim is inherent in, and forms an integral part of, the two above mentioned claims.” The claimant suggested that he needed a further four weeks to comply.[30]On 15 November 2024, the respondent objected to its response being struck out.[31]On 29 November 2024, orders were sent out at the direction of Employment Judge Quill. This concluded with the following:- “Provided the claimant has disclosed all his documents to the respondent’s representative by 27 November 2024, and that the bundle has been agreed and finalised, and sent to the claimant by 11 December 2024, then I do not strike out the claim or response. Witness statements must be exchanged without fail by 4pm, 9 January 2025. A failure to be ready means that that party is debarred from relying on witness evidence at the final hearing, subject to any relief from that sanction being granted at the final hearing.”[32]Although the order refers to a failure to be ready the claimant accepted that, given the comment relating to exchange of witness statements without fail by 4pm on 9 January 2025, it related to that order and that he was in default of it and consequently debarred from relying upon witness evidence.[33]On 6 November 2024, the respondent disclosed its documents to the claimant. They were password protected. The claimant was requested to provide a mobile number in order to text the password to him. The claimant agreed that he did not provide a mobile number to the respondent for that to happen until 6 December 2024.[34]On 4 December 2024, the respondent emailed the claimant referencing the tribunal order to agree the bundle by 11 December 2024 and attaching a draft final hearing bundle index for the claimant’s review and approval. Once again, the claimant was asked to confirm his email for a password. The claimant provided his mobile number on 6 December 2024 in reply. The claimant asserted that he did not receive the password The respondent has a screenshot dated 6 December 2024 timed at 3.21 sending the claimant the password. Today the claimant told me that he had looked and found the email in his “spam” file.[35]In an email dated 9 December 2024 the claimant disclosed about 2,000 documents plus some audio recordings. It is accepted that the deadline for disclosure of 27 November 2024 was only notified to the claimant on 29 November 2024 and so, strictly speaking, it cannot be said the claimant was in default. However, the urgency of the matter must have been apparent to him given that the final hearing bundle needed to be agreed and finalised by 11 December 2024.[36]On 10 December 2024, the respondent emailed the claimant requesting a two week extension to provide the final hearing bundle due to the late disclosure by the claimant. The claimant confirmed to me that he agreed the extension. The respondent notified the tribunal of the agreement on 10 December 2024.[37]On 9 January 2025 the respondent sent its witness statements to the claimant, password protected.[38]On 10 January 2025, the respondent emailed the claimant pointing out that he had not provided his witness statement(s) and asking for them that day.[39]On 10 January 2025, the claimant responded, apologising, stating that he had been bedbound due to a case of acute laryngitis and raising difficulties with accessing password protected documents.[40]Also on 10 January 2025, the respondent replied, acknowledging the claimant’s laryngitis and agreeing an extension for exchange of witness statements to 13 January 2025. The claimant replied that he was going to suggest 13 January 2025 as well.[41]On 13 January 2025, the claimant indicated that he had had a relapse of acute laryngitis and stating that he would try and get his witness statement done for 14 January 2025. This was agreed by the respondent.[42]The claimant did not serve his witness statement on 14 January 2025. Consequently, the respondent made its application for a strike out order on 14 January 2025. The claimant was copied in.[43]On 16 January 2025, the claimant sent an email to the respondent as follows:- “I hope this message finds you well. I am writing to offer my sincere apologies for the delay in submitting my witness statement, which was due on 9 January. Unfortunately, I have recently suffered a relapse of acute laryngitis, which severely impacted my ability to complete the necessary documentation on time, I fully understand the importance of adhering to deadlines and I deeply regret any inconvenient caused by this delay. I am now in a position to submit the witness statement and I kindly request your understanding in permitting the exchange to take place tomorrow, 17 January.”[44]Whilst the extension of time was not agreed by the respondent, nevertheless the claimant did not serve his witness statement.[45]Also on 16 January the respondent sent the claimant its witness statements nonpassword protected.[46]On 21 January 2025, the respondent emailed the claimant pointing out that the claimant had still not exchanged witness statements.[47]On 22 January 2025, the respondent sent the claimant the final hearing bundle and index, the claimant’s supplementary bundle and index and the respondent’s witness statement bundle.[48]At 12.37 on Monday 27 January 2025 the claimant sent the respondent the first version of his witness statement which was 65 pages long. At 13.29 on 27 January 2025 the claimant sent the second version of his witness statement which was 90 pages long.[49]At 8.30 this morning the claimant sent the respondent a third version of his witness statement, which is 55 pages long but appears to be, in so far as the respondent can tell, the same witness statement as the second version but in a condensed format. A new bundle of documents was also sent.[50]At 16.25 on 28 January 2025, the claimant sent two documents to the tribunal. The first is his written application for relief from sanctions. He acknowledges that his witness statement was submitted late but says this was due to significant challenges including health related issues and procedural obstacles. Accompanying that was an undated letter from a doctor’s recruitment consultant which states as follows:- “Confirmation of illness – Doctor Adiya Agrawal This letter serves to confirm that Dr Adiya Agrawal was unable to work due to a medical condition during the following periods:•24 December 2024 – 5 January 2025, Dr Agrawal was unwell with acute laryngitis, which significantly impacted his ability to communicate and carry out his professional duties.• 13 – 15 January 2025. Dr Agrawal experienced a relapse of acute laryngitis, necessitating a further five days off work.”[51]I note that the author of that letter is not medically qualified, and the information must have come from the claimant himself. The claimant is a professional man and I accept that he had acute laryngitis on the dates set out. What is less clear is the extent to which it may or may not have impeded his ability to prepare for this hearing. I quite accept that acute laryngitis may have affected his ability to communicate and conduct surgical procedures. However, the preparation of his witness statement would have involved sitting in front of a computer. He was, after all, asserting that he had it ready to exchange on 16 January 2025, either during or the day after his second attack of acute laryngitis.[52]I have taken into account the fact that the claimant is a litigant in person. That said, he is clearly an intelligent and articulate individual. Further, I was informed that he has previously brought an employment tribunal claim with the assistance of legal representation and, as such, he cannot be said to be unfamiliar with the process.[53]The claimant is still in default of providing a schedule of loss setting out his unauthorised deduction of wages and annual leave claims.[54]The claimant has known about this hearing date and the requirement to provide a witness statement since 7 March 2024. He had ten months within which to prepare it.[55]The claimant told me that he began his witness statement shortly after his disclosure in mid December 2024.[56]The claimant got the clearest possible warning about the consequences of not exchanging his witness statement by 9 January 2025 in the order of Employment Judge Quill dated 29 November 2024.[57]The claimant was not affected by acute laryngitis or off work between 5 January and 13 January 2025.[58]The claimant had, according to his email, completed his witness statement on 16 January 2025 and yet did not start disclosing it until 11 days later on 27 January 2025.[59]In the context of both relief from sanction and strike out, I make the following findings:-59.1 The Tribunal is ready to try this case.59.2 The failure to serve a schedule of loss at all and the failure to serve a witness statement until one working day before the full merits hearing are breaches of the greatest magnitude and seriousness.59.3 The responsibility for the breaches is the claimant’s alone.59.4 No good reason has been given for not serving it after 16 January 2025.59.5 I find that the failure to serve a witness statement causes great unfairness to the respondent and prejudices the respondent. The claimant’s witness statement is detailed and, according to the respondent, goes far beyond the claimant’s pleaded case and seeks to develop a significant whistleblowing, automatically unfair dismissal case that has not hitherto been at the forefront. The claimant tells me that all matters in his witness statement are relevant. As such, the respondent would expect to take detailed instructions from its witnesses but has not been able to do so. In addition, the details of how the claimant puts his unauthorised deduction of wages and annual leave claims are unknown. In my judgment, the breaches have been highly disruptive. Half a day of this hearing has been lost already with dealing with this preliminary issue.59.6 In my judgment, it is no longer possible to have a fair hearing of this case. The respondent has been unable to prepare or take instructions and, in my judgment, to proceed would be highly prejudicial to the respondent.59.7 Even taking into account the claimant’s health condition, in my judgment, the claimant has not advanced a good reason for failing to disclose his witness statement earlier. The fault is the claimants. Taking everything into account, in my judgment, it would not be in the interests of justice to vary the order debarring the claimant replying upon witness evidence.[60]I have to consider whether there is any lesser remedy than striking out the claimant’s claim.60.1 There is no prospect of delaying the start of this hearing to allow the respondent time to take instructions. It would leave insufficient time to hear the case.60.2 It is, technically, possible for a claimant to continue with his claim without any evidence on the basis that he may seek to establish his claim on the documents or by virtue of answers to cross examination but, in my judgment, in a case such as this that is fanciful. The claimant appears to be relying on a lot of whistleblowing allegations and is contending that the decision to dismiss him was outside the range of reasonable responses of a reasonable employer in the circumstances. Those issues will inevitably be fact sensitive and, as I understand it, are firmly in dispute as far as the respondent is concerned.60.3 I have considered postponing this hearing. Three/four day hearings are currently being listed in February 2026 and any hearings over five days are currently being listed in February 2027. Given the now apparent volume of documentation and the length of the claimant’s witness statement it is highly likely that this case would have to be relisted for five days or more. Postponing this case would cause expense and delay. Further, any delay is the enemy of justice and a further two years wait would render the fair hearing of this claim less likely.60.4 A costs order is not relevant to getting this case heard.[61]I have concluded that no lesser remedy is appropriate or proportionate in this claim. Accordingly, in all the circumstances, in my judgment the claimant’s claim must be struck out. Approved by:[1]This is a hearing to determine the respondent’s costs application dated 21 March 2025. The claim was struck out on 29 January 2025 by myself and the judgment and reasons should be read in conjunction with this decision. The evidence[2]I had a costs hearing bundle running to 318 pages with an index and a costs schedule.[3]The claimant provided a skeleton argument and a statement of means which he did not want to disclose to the respondent. The statement of means is wholly inadequate in any event. The procedural position as of today.[4]On 12 February 2025 the claimant emailed the tribunal setting out that he had made a number of requests to the tribunal, one of which was said to be on 30 January 2025 requesting a transcript of the hearing.[5]On 19 and 21 May 2025 the claimant emailed the tribunal expressing concern that his application for reconsideration dated 30 January 2025 had not been dealt with.[6]As no email for reconsideration from 30 January 2025 was in the tribunal’s system, on 2 June 2025 the claimant was asked to resend his reconsideration application of 30 January 2025. On 4 June 2025 the claimant sent in his reconsideration application document which was actually an application under Rule 30 to set aside the strike out order. That document is dated 17 February 2025.[7]On 1 August 2025 the claimant was asked to provide evidence of when and how he sent in his reconsideration application dated 17 February 2025.[8]As it happens the claimant has been able to point to an email that he sent to the tribunal on 19 February 2025 which had his document attached. It was in the bundle before me and the respondents clearly received it. That email is not on the file that I have. I indicated to the claimant that his email of 19 February 2025 was not on the file, that this must be due to an administrative error and I apologised to him for that. It also provides the explanation as to why the issue of reconsideration has yet to be dealt with.[9]I make plain that whether his initial application was an application for reconsideration and whether time should be extended for reconsideration and whether the decision should be reconsidered will be addressed in due course. Nevertheless, I decided that this costs application should proceed. The claimant’s application for an adjournment[10]At the outset of this hearing, when I clarified what documents I should have, the claimant told me that the hearing bundle, index, and schedule of costs have not been sent to him. During an adjournment the respondent took instructions and told me that two emails had been sent to the claimant on 23 September and that the bundle/index and costs schedule had been sent as an attachment to the same email address of the claimant on 24 September 2025.[11]The claimant accepted that he received the two emails on 23 September 2025.[12]The email of 24 September 2025 had not bounced back to the respondent as undelivered.[13]The claimant looked in his “junk” folder and it was not there.[14]It is therefore a mystery why a correctly addressed email is said to have failed to arrive.[15]I would normally accept the word of a professional individual without question but, unfortunately, I doubt that the claimant did not receive the email. The claimant has claimed too many times not to have received important emails for it to be a coincidence.[16]In any event, he told me he was expecting to receive a bundle from the respondent. He had no satisfactory explanation as to why he did not contact the respondent and ask for it prior to this hearing.[17]In any event, the key documents are the judgment, the application for costs and the costs warning letter, all of which the claimant has had.[18]In any event, the overwhelming majority of the bundle contains documents from the substantive hearing. Apart from the judgment, application for costs and costs warning letter, the only document I have looked at in the bundle is the email of 19 February 2025.[19]The costs schedule is two pages long and the claimant has been able to assess it over the lunch adjournment.[20]The claimant claimed he had not read the application. If that is true, then that is his fault.[21]The claimant has successfully managed to create and send a four-page skeleton argument on the costs issue.[22]The claimant submitted that the costs issue should only be dealt with after his reconsideration application had been dealt with. I disagree. It would be disproportionate to adjourn this hearing and have a second day. If necessary, any order I make today can be reconsidered.[23]Lastly, the claimant suggested that due to his claim being whistleblowing, public policy interests suggests that it would deter others and be unfair not to allow him time to assess the contents of the bundle. I disagree. This application does not relate to the substance of the claimant’s claims but his conduct.[24]Having taken into account all the circumstances, in my judgment, the claimant will not be disadvantaged by proceeding with this hearing and an adjournment is refused. The claimant’s conduct[25]I have set out the main history of this case in the reasons to my judgment on 29 January 2025. The law[26]Under Rule 74 of the Employment Tribunals Rules of Procedure 2024 I must consider making a costs order where I consider that a party has acted unreasonably in the conduct of proceedings and may make an order if I decide that there has been unreasonable conduct.[27]Mr Kennedy made a number of propositions of law to me, all of which are unexceptional. These were as follows:-(i) Costs are the exception not the rule.(ii) Whilst costs are the exception not the rule, the case need not be exceptional. Power v Panasonic UK Ltd [2003] 1 IRLR 151.(iii) It is important for me to look at the whole picture of what happened and make a three-stage analysis as follows: Whether the conduct was unreasonable. If it was unreasonable, whether it is appropriate to exercise my discretion. Finally, to decide the amount of the costs.(iv) Unreasonable should be given its ordinary English meaning and it is not something similar to vexatious: Dyer v Secretary of State for Employment EAT 183/83.(v) It is for me to assess the nature, gravity and effect of the claimant’s conduct.(vi) There is no requirement for a causal link between specific items of unreasonable behaviour and actual costs incurred: McPherson v BMP [2004] ICR 1398.(vii) A litigant in person should not be judged by the same standards as a professional representative.(viii) The important issue is both what a party knew and what that party ought to have known: Cartier Superfoods Ltd v Laws [1978] IRLR 315.
The facts
The facts
[28]The history of this case is largely recorded in the reasons to my judgment dated 29 January 2025.[29]The bringing of the claim was not unreasonable. It is clear that the case management orders were disregarded by both parties during the course of 2024. That said, it is clear to me that the claimant ignored a number of ‘chasers’ from the respondent during the course of 2024.[30]Further, towards November and onwards in 2024 the respondent was involved in agreeing extensions and chasing compliance with case management orders to try and get the case into a triable format.[31]The claimant made late disclosure of over 2,000 pages two days prior to the bundle needing to be created. This involved the respondent in extra work creating a supplementary bundle. The respondent made an application to strike out. The respondent had to consider the claimant’s relief from sanction application. I regard all of those actions that had to be taken by the respondent as being a consequence of the claimant’s unreasonable conduct of the proceedings.[32]That said, in my judgment, the effect of the order of Employment Judge Quill to the effect that the claimant was debarred from relying upon witness evidence unless he could get relief from sanction meant that it was not unreasonable for him to attempt to get that relief from sanction on the morning of the trial. Further, many of the costs run up by the respondent were run up in response to the reasonable conduct of the litigation. Put another way, the respondent would have had to undertake that work if, for example, the claimant had managed to serve his witness statement by 14 January 2025.[33]Accordingly, I have found that the extent of the claimant’s unreasonable conduct of this litigation is confined to the instances I have set out above in paragraph 31. As such, I must consider whether to make a costs order.[34]I have decided it is appropriate to exercise my discretion[35]Doing the best I can, I assess the costs as follows. For reasons best known to itself, the respondent’s solicitors have graded the solicitor from D to A in seniority rather than A to D as would be normal. In my judgment, a reasonable amount of time for the Grade D earner to have worked on the unreasonable conduct would be two hours or £389. I award 10 hours at Grade B or £1,605. I consider that in excess of four hours of Grade D time on the costs schedule is excessive. I would allow £1,500 for preparation for this costs hearing. I do not allow VAT as the respondent can reclaim it. The total I allow is £3,494.[37]I should go through the specific points raised by the claimant. Late service of the bundle:[38]This costs application relates to the claimant’s unreasonable conduct and not the respondent’s conduct. Excessive costs bill:[39]It is not for me to assess the overall costs charged to the respondent. I have awarded the sum I think is appropriate in light of the unreasonable conduct found. The absence of prejudice to the respondent:[40]I found clear and significant prejudice to the respondent in my original decision. Contributory default of the respondent:[41]Again, this point relates to the claimant’s conduct and not the respondent. Mischaracterisation of the claimant’s conduct:[42]It is not so much that there were three witness statements tendered by the claimant but the fact that they were so late that was the real problem. In any event, I have not awarded costs in relation to that. The claimant’s personal circumstances:[43]In the notice for this hearing the claimant was warned that if he did not provide details and evidence of his means including income, expenditure, savings, investments, capital, and dependents, the tribunal was likely to assume he can afford any sums ordered. The statement of means provided by the claimant falls woefully short and provides no evidence of his means. Public interest in the protection of whistleblowers:[44]That does not arise in this case as it is purely about the claimant’s conduct of the litigation. Approved by: