ON RECONSIDERATION Rules 70 - 73 of the Employment Tribunal Rules of Procedure 2013 Upon the claimant’s application made on 26 July 2018 to reconsider the preliminary hearing judgment sent to the parties on 28 June 2018 2018 under Rule 71 Employment Tribunal Rules of Procedure 2013 and without a hearing:- The application to reconsider is refused as there is no reasonable prospect of the judgment being varied or revoked.
REASONS
[1]By a claim form presented on 1 October 2016 the claimant presented claims of disability discrimination and unlawful deduction of wages. As recorded in the reserved preliminary hearing judgment after the preliminary hearing on 9 May 2018, there had been four preliminary hearings before the one in May 2018. I also recorded there what efforts had been made to agree what the complaints were and what preliminary issues might arise.[2]In the reserved judgment sent to the parties on 28 June 2018, I dismissed the claims because I found they had no reasonable prospect of success. That reserved judgment was 18 pages long and the claimant asked for an extension of time to apply for reconsideration which was granted.[3]The application of 26 July 2018 is contained within a 15 page document which I now attempt to summarise. The claimant sets out some background and, under a heading “The complaints and the Respondents Responses”, avers that there are inaccuracies in the judgment. It is not clear on a reading of the next five pages where the alleged "inaccuracies" are said to have appeared in the judgment. Rather, this section appears to be largely a re-statement of the arguments which were before me at the preliminary hearing. The application then has a heading “Application to amend” but does not appear to say that there is any suggested reconsideration of that application to amend which was allowed in part. Under the next heading “Facts – Inaccuracies which lead to the incorrect determination”, there are 8 numbered paragraphs. However, reading those paragraphs carefully, I cannot find a clear reference to any factual inaccuracies in the preliminary hearing judgment but rather a number of concerns about the findings made on the facts.[4]In the final section “Submissions on the law”, the claimant repeats rules 37 and 39 Employment Tribunal Rules of Procedure 2013 and then raises several reasons for reconsideration. It is said that insufficient consideration was given as to whether to order a deposit rather than strike out and that the decision to strike out was premature and without hearing all the evidence. The reconsideration application refers to several cases including Anyanwu v South Bank Students Union [2001] IRLR 391 and Ezsias v North Glamorgan NHS Trust [2007] IRLR 305 which are cases that were considered and are referred to in the judgment. He also refers to ABN Amro v Hogben (UKEAT/0255/09), Timbo v Greenwich Council for Racial Equality UKEAT/0160/12) and Javed v Blackpool Teaching Hospitals NHS Foundation Trust (UKEAT/0135/17), all of which give guidance on when it might or might not be appropriate to strike out claims or parts of claims.[5]By email of 6 August 2018 the respondent submitted that the reconsideration application should be refused. In summary, the respondent states that all the allegations of discrimination were considered at the preliminary hearing on the assumption that the claimant would meet the definition of being disabled (even though that is not conceded by the respondent). It is submitted that the application is largely the claimant’s interpretation of undisputed incidents. The respondent reminds me that the claimant had two opportunities to make submissions on strike out or deposit and they were made in writing and at the preliminary hearing. Although the respondent agrees that the power to strike out should be exercised with caution, it is submitted that is what happened in this case. Rules[6]The relevant employment tribunal rules for this application read as follows: RECONSIDERATION OF JUDGMENTS Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.[7]In essence, my task is to consider whether reconsideration is in the interests of justice. Where I consider there is no reasonable prospect of the decision being varied or revoked, under Rule 72, the application shall be refused.
Conclusions
[8]This matter was heard over a full day with judgment reserved so I could give it full consideration. It was a relatively complex matter because of the number of allegations raised and the many documents prepared, primarily by the claimant. I had written applications and both parties had time to make submissions having already handed in detailed representations. Both parties had legal representation.[9]The application for reconsideration repeats some of the documentary evidence that I looked at. The application attempts to re-argue that which I have already considered and decided. There is no clear reason given as to why it would be in the interests of justice to reconsider.[10]The claimant is, not surprisingly, dissatisfied with the outcome but the undisputed facts and the allegations of discrimination were fully explored and the legal tests applied. The hearing was the claimant’s opportunity to give information, asks questions and raise issues. There is nothing in what is now said which indicates that it is in the interests of justice to re-open matters. I must refuse this application as there is no reasonable prospect of the judgment being varied or revoked. Dated: 05.09.18 …………..………………………………...…
Introduction
[1]By a claim form presented on 1 October 2016 the claimant presented claims of disability discrimination and unlawful deduction of wages. In the reserved judgment sent to the parties on 28 June 2018, I dismissed the claims because I found they had no reasonable prospect of success. The claimant made an application for reconsideration which has been refused. The application for costs[2]The application for costs of 27 July 2018 sets out the chronology of the claim which has included three preliminary hearings (PH) before the substantive one in May where the claims were struck out. That chronology is apparent from the file. The claimant was ordered at the first PH in December 2016 to clarify his complaints but the document which was supplied did not comply with the order and, at a further telephone PH the claimant was given further time to comply. At the third PH in August 2017 an unless order was made for the complaints to be fully set out by 6 October 2017. The claimant complied with that order and, in November 2017, he also made a detailed application to amend. The claimant is formally unrepresented and it is understood that many of the documents are prepared by the claimant’s son or with his assistance. At the PHs, the claimant has been represented by direct access counsel.[3]The respondent had written to the claimant, who has been in its employment throughout, on two occasions in March and May 2017, with offers that it would not pursue an application for costs if he withdrew his claim. That was repeated at the PH in August 2017. The respondent applies for costs on the grounds that the claim was misconceived because it has no reasonable prospect of success and/or the claimant (or his representative) have behaved unreasonably in the bringing or conducting of the proceedings. The application is for a proportion of costs only in the sum of £4604.83 (being just over 8 days at £550 per day). The respondent’s representative has spent over 60 hours on this matter, excluding lengthy correspondence with the claimant. The claimant’s opposition to the costs application[4]The claimant opposed the application by email and attachment of 17 August 2018. He states that his reconsideration application is outstanding and that he has appealed to the EAT. He points out that there is no finding that the claimant has acted “vexatiously, abusively, disprutively or otherwise unreasonably”. I am referred to the cases of Ganase v Kent Community Housing Trust UKEAT/1022/01 and ET Marler Ltd v Robertson [1974] ICR 72. The claimant takes issue with the respondent’s version of the chronology of the claim and the amount of costs claimed. He submits that the letters sent by the respondent which contain a “drop hands” offer is not a costs warning letter. I am referred to the case of Lake v Arco Grating (UK) Limited EAT0511/04 which makes it clear that the tribunal must decide whether conduct has been unreasonable and McPherson v BNP Paribas [2004] ICR 1398 which states that the tribunal must have regard to the nature, gravity and effect of any unreasonable conduct. The claimant’s ability to pay[5]At the PH in May 2018, the claimant answered some short questions about his means for the purpose of considering whether a deposit order should be made, and, if so, in what amount. My note of his responses indicates net income of £2600 per month with £220 every two weeks for a carer’s benefit. He has no rent or mortgage payments but has council tax of £175. He said he had fuel costs of £120 and food costs of £300-£400 per month. He also mentioned “general expenses” of £500 per month. He said his son lives at his home with the claimant and his wife but does not contribute to the household expenses. He has no savings.[6]In the claimant’s response to the application for costs, slightly different figures are provided. His net income from the respondent and pensions is recorded as £2482 per month. Council tax is £132 and there are other expenses for water, telephone, energy, insurance and so on totaling £244. Fuel costs are £50 with road tax of £16. The claimant then lists some rather higher items of expenditure. One item is “clothes, gifts and personal expenses” of £250; another is “private personal insurance plan” of £270; another is “holiday” of £200 and “other expenses (eg property maintenance and replacing faulty things)” of £500. All the expenditure totals £2153. Rules[7]The relevant part of Rule 76 reads as follows: “(1) A tribunal may make a costs order or a preparation time order, and shall consider to do so, where it considers that – a) a party (or that party’s legal 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”[8]Rule 84 provides that the tribunal may have regard for the paying party’s ability to pay in deciding whether to make a costs order and the amount. In essence, my task is first to decide whether the claim was misconceived and/or there has been unreasonable behaviour in the conducting of the proceedings. If I decide there has been, I may make an order for costs.
Conclusions
[9]This matter has needed considerable input from the tribunal and the respondent as can be seen from the chronology above. The claims have now been dismissed because I found, after a full day’s hearing and reserving judgment, that they had no reasonable prospect of success. I do find that the claims were misconceived. I understand that might have not been obvious to the claimant or those assisting him at the outset, but it must have become clear to him as he tried many times to articulate a claim under Equality Act 2010.[10]I also find that the way in which the proceedings have been conducted has been unreasonable. There have been many delays and orders (including the need for an unless order) and this has led to the respondent needing to read many documents, often relatively lengthy, and attend hearings. The claimant would have been well advised to consider the offers made by the respondent but that is not the only aspect of unreasonableness.[11]I have taken account of the claimant’s ability to pay and note that the application for costs is limited to a very small proportion of the legal costs expended by the respondent on this case. On either account of the claimant’s means, he has some income that would allow for him to pay a modest costs order. The claimant is now ordered to pay the sum of £2500 towards the respondent’s costs, primarily towards time spent for the third and fourth PHs, including responding to the application to amend and other preparation and attendance at those hearings. Dated: 05.09.18 …………..………………………………...…
Introduction
[1]The history of the above claim is set out in various preliminary hearing judgments but most comprehensively in the reserved preliminary hearing judgment sent to the parties on 28 June 2018. A judgment on reconsideration for that hearing sent to the parties on 5 September 2018 also made reference to the history. I shall not repeat it here. Application for reconsideration[2]After the reserved preliminary hearing judgment was sent to the parties, the respondent made an application for costs on 27 July 2018 with the claimant setting out his opposition to a costs award on 17 August 2018.[3]The judgment on costs summarises the parties’ submissions. The claimant has now applied for reconsideration of that costs judgment and asked that it be stayed. The respondent has been given an opportunity to comment and did so by email of 14 October 2018.[4]In summary, the claimant states that he has appealed to the EAT; that there was no finding that his claims were misconceived; that there was no costs warning letter; that the respondent has not suffered prejudice; that the respondent has often written lengthy emails and not spent time on responses and it has alleged; that a skeleton argument by the respondent was 4 days late; that I have misunderstood the case and ignored case law.[5]The respondent submits that the claimant’s application for reconsideration has no legal basis and, if anything, the award should be increased. It also points to significant disagreement with points made by the claimant, not least, that there were direct warnings to the claimant in April and May 2017 which stated that it would seek to recover costs. It also reiterates that it was forced to spend time commenting on and responding to lengthy emails sent by the claimant. Rules[6]The relevant employment tribunal rules for this application read as follows: RECONSIDERATION OF JUDGMENTS Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.[7]My task is to consider whether reconsideration of the costs judgment is in the interests of justice. Where I consider there is no reasonable prospect of the decision being varied or revoked, under Rule 72, the application shall be refused.
Conclusions
[8]This application for costs and the claimant’s response was considered by me on the papers. Detailed submissions were made by the claimant and the respondent’s representative. The application for reconsideration repeats some of the information contained in the email sent by the claimant before I made the judgment on costs and it re-argues that which I have already considered and decided. The application provides no clear reason as to why the claimant believes that it would be in the interests of justice to reconsider the costs judgment.[9]The claimant is unhappy that he has been ordered to pay a relatively modest share of the respondent’s costs which were estimated at between £6,677 and £18,210. The fact that the claimant has appealed to the EAT cannot affect the judgment and I have no power to grant a stay. There is no case law which states that a “costs warning” letter need be sent, and, in any event, the claimant was clearly warned by the respondent that it did intend to make a costs application.[10]There is nothing in what is now said which indicates that it is in the interests of justice to re-open matters. I must refuse this application as there is no reasonable prospect of the judgment on costs being varied or revoked. Dated: 05.11.18 …………..………………………………...…