Miss S Simpson v Fife Scottish Omnibuses Ltd: 4104538/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104538/2024Venue DundeeHearing 28 November 2024
Between
Miss S SimpsonClaimantFife Scottish Omnibuses LtdRespondent
Before
Employment Judge A KempMs M Dalziel (instructed by Solicitor) for respondentDate 31 December 2024
JUDGMENT
The Tribunal makes an order for expenses against the claimant in favour of and payable to the respondent under Rule 76 in the sum of SIX THOUSAND NINE HUNDRED AND THIRTY-SIX POUNDS (£6,936).
REASONS
[1]A Hearing was held on 28 November 2024 to determine an application for expenses. I issued a Note on the same on 16 December 2024, which set out the background to the application and my provisional views and is referred to for its terms and gave the claimant’s solicitor until noon on 23 E.T. Z4 (WR) December 2024 to make written submissions. No such submissions were received.[2]The respondent’s solicitor did respond to an invitation to provide further details as to the expenses sought, seeking additional time to provide a full Schedule, which I granted given the circumstances set out in the application of 23 December 2024. The Schedule was then submitted on 24 December 2024.
The law
[3]Although I set out the law in that Note I repeat it here for ease of reference.[4]Rule 2 of the Rules of Procedure found in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) provides as follows; - “2 Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. 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. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[5]Rules 74 - 78 provide as follows: “Definitions(1) ‘Costs’ means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression ‘wasted costs’) shall be read as references to expenses.(2) ‘Legally represented’ means having the assistance of a person (including where that person is the receiving party's employee) who— (a) has a right of audience in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates' courts. (b) is an advocate or solicitor in Scotland; or (c) is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.(3) ‘Represented by a lay representative’ means having the assistance of a person who does not satisfy any of the criteria in paragraph (2) and who charges for representation in the proceedings. Costs orders and preparation time orders (1) A costs order is an order that a party (“the paying party) make a payment to: (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or represented by a lay representative …….. (3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make. When a costs order or a preparation time order may or shall be made (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 or response had no reasonable prospect of success….. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party….. Procedure A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. The amount of a costs order (1) A costs order may— (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; or, in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions) 1993, or by an Employment Judge applying the same principles;…….”
Procedure
[6]If an award is to be made, the Tribunal requires to consider the ability of the paying party to pay, under Rule 84.[7]That expenses are not normally awarded in the Employment Tribunal has been addressed in a number of cases including Gee v Shell UK Ltd [2002] [2003] IRLR 82. Expenses may however be awarded if to do so falls within the terms of the Rules. It is an exercise of discretion which includes taking into account the overriding objective in Rule 2. In Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78, the Court of Appeal stated: “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 has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had”.[8]Costs is the term for expenses used in England, with expenses the term in this jurisdiction as provided for in Rule 74. In McPherson v BNP Paribas [2004] ICR 1398 it was held that in determining whether or not to order costs/expenses a Tribunal should take into account the nature, gravity and effect of the party’s unreasonable conduct. In Osannaya v Queen Mary University [2011] EAT 0225/11 it was held that such an order was exceptional in the Employment Tribunal and the use of the word “unreasonable” in the Rule above led to a high threshold to be passed if making such an order. It was emphasised in Abaya v Leeds Teaching Hospital NHS Trust UKEAT/0258/16 that there were three stages to the exercise of discretion(i) whether the precondition had been established(ii) whether to exercise the discretion if so and(iii) again if so, that quantum (amount) of the award to make.
Discussion
[9]In light of the absence of a reply from the claimant’s solicitor, I confirm that I have concluded, for the reasons more fully set out in the said Note, that the claimant has conducted the proceedings unreasonably, and has been in material breach of the orders that the Tribunal made. Whilst the extent of the breach is not total, the extent to which there was compliance in a practical sense is small. In many respects the breach was total.[10]From the narration of the detail in the Note it appears to me that there has been consistent and material breach of a series of orders. By 22 November 2024, the working day before the start of a 7 day Final Hearing and when the claim was withdrawn, there was no supporting documents for the claimant for liability or remedy at all. The Schedule of Loss was at best inaccurate.[11]Compliance with orders is a necessary part of litigation in the Tribunal. It allows a case to be conducted in accordance with the overriding objective. The extent of the non-compliance in this case is very significant indeed, persistent, and in the face of the history of non-compliance which the Tribunal has given the claimant a great deal of latitude over by not granting unless orders or strike out although the respondent had sought them. It included what amounted to a warning as to expenses on 5 August 2024, and further direction when the strike out application was not granted.[12]From the information before me I consider that the test as to breach of any order in Rule 76(2) is met and that was to a very significant degree causing material prejudice to the respondent in attempting to be prepared to defend the case at the Final Hearing due to commence on 25 November 2024.[13]The respondent’s argument that there has been unreasonable conduct of the proceedings under Rule 76(1)(a) I consider has been met. The withdrawal of the claim was made very late in the day indeed, on the last working day before a seven-day Final Hearing. It came with no explanation. Why it was withdrawn then as opposed to much earlier was not set out, and there remains an absence of explanation for that even with an opportunity to do so given in the said Note. That lack of explanation suggests a cavalier approach to the litigation, a suggestion fortified by the manner in which it has been conducted in regard to the non-compliance with orders.[14]I consider that it is appropriate in the exercise of discretion to make an award of expenses given all the circumstances. In regard to the amount of the award I am entitled to take into account the claimant’s ability to pay under Rule 84, although I am not bound to do so (subject to the terms of the overriding objective). The claimant has been given an opportunity to provide information on that but has failed to take advantage of that opportunity. I therefore have not material in that regard to consider, although the claimant has been represented by a solicitor.[15]I have considered the Schedule provided by the respondent. It appears to me that in general terms it is prepared on a reasonable basis, that the hourly rates charged for the claimant’s solicitor and her colleague are reasonable, and that the only issue remaining is for me to assess from which date to make the award from. For the reasons explained in the Note I did not consider that a full award for all of the respondent’s expenses in defending the claim was appropriate, but that it should commence from the date when the breaches of orders commenced. I consider that that is from the entries starting on 2 July 2024, and therefore that those before that date should not attract an award. The total of the entries thus excluded is £1,284.50.[16]For those after that date the large majority appear to me to be ones that should attract the award of expenses, but I exclude from that the following:(i) 11/7/24 an update to the client of £112.50(ii) 23/7/24 call to the client similarly of £90(iii) 29/7/24 an internal email £54.00(iv) 27/8/24 an update call £67.50[17]These last four entries are ones that appear to me to fall outwith what is appropriate as an order for expenses in such circumstances, having regard to the principles applied in a taxation in the Sheriff Court. They total £324.00.[18]I also consider it appropriate under the overriding objective and having regard to those same principles to modify to an extent the entries relating to the applications for an unless order and strike out and their determination. Whilst I can understand why they were made, they were not granted. It is true that there was material non-compliance which lay at the heart of the applications, but taking account of all the circumstances it appears to me appropriate to reduce the overall sum by a further amount, fixed on a very broad brush basis, of £500.00.[19]What was unreasonable about the conduct of the claimant was the breaches of orders and other matters set out more fully in the said Note. It had the effect of causing expense to the respondent unreasonably and it appears to me that the entire amount of the Schedule should be awarded from and after 2 July 2024 subject to these deductions. From and after that date the claimant ought either to have progressed the claim in accordance with the orders made and on a reasonable basis, or withdrawn the claim promptly, rather than as she eventually did on the working day before a seven day Final Hearing. I take that decision in the absence of any explanation for it put forward on behalf of the claimant, or any further details as to the circumstances or her ability to pay.[20]The total of the sums sought was £9,045.50, and subject to the deductions that amount is I considered a reasonable one. The deductions total the sum of £2,109.50. The balance is £6,936. I do not make any award in respect of VAT as it appears to me that the respondent will be able to recover that separately under normal principles, and is how the matter would be treated at a taxation.[21]I then considered whether that award was a reasonable one in all the circumstances of the case, so far as known to me, and I concluded that it was. That award was accordingly made. A Kemp