Mr N J Bambridge and others v In Tandem Resources Ltd (in compulsory liquidation) and others: 3332546/2018 to 3332551/2018
JUDGMENT
[1]On its initiative, the Tribunal considers it is necessary in the interests of justice to reconsider the Judgment sent to the parties on 29 January 2021 striking out the claim against all the named Respondents. The Judgment shall be varied so that the claim is struck out as against the first Respondent only, namely In Tandem Resources Limited (in compulsory liquidation). _____________________________ Employment Judge Tynan 15/9/21[2]JUDGMENT SENT TO THE PARTIES ON ........................................................................ ........................................................................ FOR THE TRIBUNAL OFFICE[3]Case No: 3332546/2018 & 3332551/2018 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mr N J Bambridge & Others v In Tandem Resources Limited; and Others Heard at: Cambridge On: 15 September 2021 Before:REASONS
[1]By a Judgment sent to the parties on 29 January 2021, the Claim was struck out in its entirety, albeit potentially only as regards the Claim brought by the First Claimant. By a Reconsideration Judgment dated 15 September 2021, on its own initiative, the Tribunal considered that it was necessary in the interests of justice to reconsider that Judgment. It was varied so that the Claim was struck out as against the First Respondent only, namely: In Tandem Resources Limited (in compulsory liquidation).[2]By an email dated 12 October 2021, the Respondents’ Solicitors requested written Reasons for that decision. I was only provided with the case file on 18 January 2022.[3]The history of the matters is as follows. On 20 January 2020, I directed that the proceedings against the First Respondent should be stayed on the grounds that it was in compulsory liquidation. Unfortunately, my direction was not correctly implemented, and the proceedings were stayed in respect of all three named Respondents. When the matter was referred again after six months, acting on the stay, another Employment Judge directed that a strike out warning should be issued as the Claimants (or possibly just the First Claimant) had not indicated that the Court’s permission had been secured to allow the Claim to proceed. Acting on that subsequent direction I struck out the Claim. In doing so, I was unaware that my original direction of 20 January 2020 had not been correctly implemented. For these reasons I considered that it was necessary, in the interests of justice, to reconsider the Judgment and went Case No: 3332546/2018 & 3332551/2018 2 on to vary the Judgment to reflect my original direction of 20 January 2020. I additionally directed that there should be a strike out warning in respect of the Second to Sixth Claimants’ Claims against the First Respondent as it was unclear on the face of the strike out warning and resulting Judgment that the strike out extended beyond the Claim brought by the First Claimant. I further directed the parties to inform the Tribunal whether the Case Management Orders made on 13 May 2019 had been complied with.[4]I dealt with the matter under Rule 72 of the Employment Tribunals Rules of Procedure as it was not clear to me that the error was capable of being corrected as a clerical mistake or accidental slip under Rule 69, though the parties are at liberty to make further submissions to the Tribunal in this regard.[5]In reconsidering the Judgment I failed to direct that the parties should be informed that this was the course of action I was proposing and the reasons why, with the result that they were not afforded a reasonable opportunity to make further written representations or to attend a Hearing, as envisaged by Rule 72(2). In the circumstances, but given my comments above, I shall await confirmation from the parties as to their intentions.[6]Should any party wish to pursue an Application for Reconsideration of the Reconsideration Judgment, they should do so within 14 days of the date on which these written Reasons are sent to them. In the event of any such Application, I consider that it should be capable of being dealt with on paper rather than at a Hearing. However, the parties are at liberty to make further representations in that regard. 24 January 2022 ___________________________ Employment Judge Tynan Judgment sent to the parties on 28 January 2022 For the Tribunal office Case Number: 3332546/2018 to 3332551/2018 1 EMPLOYMENT TRIBUNALS Claimant: 1. Mr N J Bambridge 2. Mr A Hides 3.Mr S Barrett 4. Mr T Shead 5. Mr C Wootton 6. Mr G Bunnage Respondent: 1. In Tandem Resources Limited (in compulsory liquidation) 2. Ashwood Capital limited 3. Roger Warnes Transport Limited Heard at: Cambridge On: 27 June 2022 Before: Employment Judge Tynan Appearances For the Claimants: Ms J Ball, Counsel For the First Respondent: Did not attend and was not represented For the Second Respondent: Did not attend and was not represented For the Third Respondent: Ms L Quigley, Counsel COSTS JUDGMENT The Tribunal Orders the First, Second, Fourth, Fifth and Sixth Claimants to pay the Third Respondent’s costs of the Hearing on 27 June 2022, to include its costs incurred in preparing for the hearing, summarily assessed in the sum of £2,998.60. The First, Second, Fourth, Fifth and Sixth Claimants’ liability in the matter is joint and several.[1]The Third Claimant withdrew his claims against the Third Respondent. The question is whether the Tribunal should make a costs order against Case Number: 3332546/2018 to 3332551/2018 2 the other Claimants (referred to hereafter as “the Claimants”), their claims against the Third Respondent having been struck out on 27 June 2022 on the basis they had no reasonable prospect of success.[2]Rule 76 of the Employment Tribunals Rules of Procedure sets out the circumstances in which a costs order may or shall be made. As the claims against the Third Respondent were struck out, the threshold test has been met under Rule 76(1)(b) of the Rules of Procedure, namely that the claims had no reasonable prospect of success and accordingly the Tribunal is required to consider whether to make a costs order. It does not automatically follow that a costs order will be made, it remains a matter of judicial discretion.[3]In my judgement, the threshold test has also been met under Rule 76(1)(a) in so far as the Claimants failed to put forward any evidence as to why it was not reasonably practicable for their TUPE related claims against the Third Respondent to be presented in time (even assuming that their Claims included complaints pursuant to the TUPE Regulations 2006 in respect of an alleged failure to inform and consult in respect of the TUPE transfer of their employment in 2013 from the Third Respondent to the First Respondent). Ms Ball was effectively without instructions on the point, and as to the other factors to which Tribunals should have regard under the Selkent principles if the Tribunal was required to consider the point within the context of an application to amend. The Claimants had been on notice since 15 May 2022 that the Tribunal was giving consideration to whether their claims should be struck out, but had seemingly failed to address their minds to why their claims might lack any prospect of success. It should not have come as any surprise to them since the Third Respondent’s Grounds of Response, filed as long ago as 12 October 2018 had highlighted that any claims against it were substantially out of time.[4]It does not automatically follow that because a party has behaved unreasonably and/or the claim had no prospect of success that the Tribunal should make a Costs Order. The Tribunal retains a discretion in the matter and in the exercise of that discretion should have regard to the nature, gravity and effect of the conduct, though on the latter issue it is not necessary for the Tribunal to determine whether or not there was a precise causal link between the conduct in question and the specific costs being claimed. A Costs Order is not intended to be punitive.[5]The Third Respondent issued a costs warning letter to the Claimants on 17 June 2022. In any event, the Claimants have been professionally represented throughout. The Third Respondent has been put to the wasted expense of defending claims against it that either had no legal basis or which were brought approximately five years out of time in circumstances where the facts and matters supporting the claims and the Claimants’ failure to pursue them in time were not indicated. That amounts to a significant omission on their part. I agree with Ms Quigley when she said that the Claimants saw the Third Respondent as the “last Case Number: 3332546/2018 to 3332551/2018 3 man standing”. I find that they continued to pursue the Third Respondent because it was solvent and they believed it might settle their claims, without giving proper thought to whether they had arguable, timeous claims against it. I consider that the hearing on 27 June 2022 might have been avoided had the Claimants given that necessary, overdue thought to the merits of their claims, not least against the backdrop of a costs warning and pending hearing to strike out their claims. In the exercise of my discretion I shall make a costs order against the Claimants in respect of the Respondent’s costs both of the Hearing on 27 June 2022 and in preparing for that Hearing. Before exercising that discretion, I afforded the Claimants a reasonable opportunity to make representations regarding their ability to pay (Rule 84), but they have failed to place any information before the Tribunal.[6]In the event that I was minded to make a costs order, I provisionally assessed the Respondent’s costs on 27 June 2022 at £2,998.60 plus VAT. As the Respondent will be able to reclaim the VAT element, I assess that the costs they might otherwise reasonably look to the Claimant to pay are £2,998.60 and that is the amount I shall order them to pay.