Ms R Wadie v Helios Towers Group LLP and Mr PJ Barrett: 6005396/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 6005396/2024, 6006726/2024, 6007242/2024, 6009452/2024, 6014341/2024
Between
Ms R WadieClaimantHelios Towers Group LLP and Mr PJ BarrettRespondent
Before
Employment Judge NicolleIn person for claimantMs A Reindorf KC for respondentDate 13 March 2025
JUDGMENT
[1]An email of advice dated 28 August 2024 sent by the Respondents’ solicitors, Pinsent Masons, to its client, but inadvertently forwarded to the Claimant by the 2nd Respondent, is covered by legal professional privilege and this privilege has not been vitiated pursuant to the inequity exception and it is not therefore an admissible document.[2]The claims are struck out in their entirety under Rule 38 (1) (b) of the Employment Tribunals Rules of Procedure 2024 (the Rules) as the manner in which the proceedings have been conducted by the Claimant has been scandalous, unreasonable or vexatious.
REASONS
[3]Oral reasons were given to the parties. The Claimant immediately requested written reasons which will be provided as soon as reasonably practicable. 6.2 Strike out Judgment – claim - rule 37 Case Nos: 6005396/2024, 6006726/2024, 6007242/2024, 6009452/2024, 601 4335/2024 and 6014341/2024 Open Preliminary Hearing Heard by CVP before Employment Judge Nicolle on 14 February 2025 Claimant: Ms R Wadie 1st Respondent: Helios Towers Group LLP 2nd Respondent: Mr PJ Barrett Representation: Claimant: in person Respondent’s: Ms A Reindorf KC
The Hearing
[4]The hearing had been listed by Employment Judge Snelson following a case management hearing which took place on 3 December 2024 to consider the Respondent’s application to strike out the claims based on what the Respondent contends is the Claimant’s “very serious misconduct”. He also provided that the hearing would consider the admissibility of what the Respondent contends is a privileged document which was erroneously disclosed to the Claimant.[5]EJ Snelson provided that the hearing should take place in person. The Respondent was in attendance for the scheduled 10am start but the Claimant was not in attendance. I deferred the hearing and asked the clerk to telephone her to ascertain her whereabouts and whether she intended to attend. She advised that she was in Sheffield and would not be travelling to the hearing. I considered that it would be reasonable to exercise my discretion to convert the hearing to CVP and this enabled the Claimant to participate with the hearing commencing at 11:30am.[6]The Claimant said that she had not had the opportunity to open the Respondent’s witness statement and the bundle notwithstanding that the Respondent’s solicitors had sent those documents to her on 31 January and 7 February 2025 respectively. The Claimant had chosen not to give witness evidence which would have meant that she would be asked questions in cross examination. The relevant background[7]The Claimant issued six separate claims between 9 July 2024 and 8 October 2024. The claims were consolidated by EJ Snelson at the 3 December 2024 case management hearing (the Consolidated Claims). The Claimant’s objections[8]The Claimant raised various objections to the hearing taking place and as set out in her email sent at 09:07 this morning. She referred to an unresolved Rule 29 application to set aside the prejudicial order of EJ Snelson and her formal complaint to the Regional Employment Judge on judicial impropriety in the determinations made by EJ Snelson.[9]She argues that the Respondent’s application is legally flawed. In a letter dated 14 February 2025 she says the Respondent’s strike out application is reliant on post dismissal allegations that are entirely outside the Tribunal’s jurisdiction. She says that mere persistence in pursuing legitimate claims does not constitute vexatious conduct. She categorically denies all post dismissal allegations but refuses to engage with matters that are wholly irrelevant and fall outside the Tribunal’s jurisdiction. She says that she will not waste time on fabricated and irrelevant accusations designed solely to prejudice the Tribunal’s view and distract from the core issues in the case.[10]I explained to the Claimant the basis of today’s hearing and she agreed that the hearing would proceed. I provided her with time to read the witness statement of Mr Paul Barrett, General Counsel and Company Secretary (Mr Barrett) so that she could crossexamine him. I explained to the Claimant as a litigant in person that if she did not challenge his evidence and assertions that they would in effect be accepted as matters of fact. The status of the Disputed Document[11]I will deal with this discreetly before setting out the chronology of events in relation to the Respondent’s strike out application. The Respondent has quite properly asked me to deal with this first because should the claims be struck out I would strictly no longer be in a position to give a ruling on the status of the Disputed Document.
The Hearing
[12]The disputed document concerns legal advice provided by Pinsent Masons LLP, the Respondent’s solicitors, in an email of 28 August 2024 (the Disputed Document) which was erroneously forwarded to the Claimant by Mr Barrett on or about 3 September 2024. The Claimant asserts that the Disputed Document refers to matters of unlawfulness which would warrant its privileged status as a communication between solicitor and client being vitiated.[13]The Disputed Document contains advice to the Respondent regarding the legal status of a payment in lieu of notice clause (Pilon) within the Claimant’s contract of employment and whether given the Respondent’s concerns regarding her post dismissal conduct would entitle it to withhold payment of the Pilon. The solicitors did not recommend refusing to pay the Pilon at this stage. As a matter of fact the Claimant received the Pilon payment within 28 days of the termination of her employment.[14]The Claimant’s assertions in relation to that document are set out in various emails. In an email to the Tribunal on 11 November 2024 she sought admission of the Disputed Document on the basis that it revealed advice to unlawfully withhold her Pilon in retaliation for discrimination claims. Also in that email she sought the recusal of the Respondent’s solicitors. She refers to the inequity principle as enunciated in cases such as Barclays Bank plc v Eustice [1995] 1 W.L.R.1238. She argues that privilege does not extend to advice that enables or conceals a crime, fraud or other iniquitous conduct. She refers to the crime-fraud exception that communications intended to facilitate fraud or unlawful conduct should lose their protected status. The Respondents’ position[15]The Respondents say the Disputed Document was sent to the Claimant in error. Ms Reindorf KC says that privilege is a fundamental human right and condition on which the administration of justice as a whole rests. She says the protection is absolute, there is no balancing exercise, the privilege is inviolate. It can only be overridden by express words or necessary implication.[16]Whilst she acknowledges the existence of the inequity exception it is restricted to instances of fraud, crime or other inequity. She referred to the judgment of Norris J at paragraph 62 in BBGP v Badcock & Brown [2011] CH 296 that inequity is “sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud which the law treats as entirely contrary to public policy”.[17]Ms Reindorf KC says that there must be prima facia case that inequity exists, it must be more likely than not. She referred to Curless v Shell International Ltd [2020] ICR 431 where the Court of Appeal held that where legal advice had been inadvertently received by an employee the EAT’s decision that the inequity exception applied, on the basis that the email recorded advice on how to cloak as dismissal for redundancy a Claimant who had made complaints of disability discrimination, was erroneous. It was the type of advice which employment lawyers frequently provide where an employer wishes to consider for redundancy an employee, who rightly or wrongly, is regarded as underperforming. The Court rejected the contention that this constituted advice to act in an underhand or iniquitous way.[18]She also referred to Abbeyfield (Maidenhead) Society v Hart EA2020-001089-JOJ (unreported 19 August 2021) where the EAT at paragraph 49 held that even an indication of that kind is not the same as a request for advice on how to act illegally, and would not necessarily cause privilege to fall away.[19]The Respondents assert that the Disputed Document did not facilitate unlawful conduct and nor does it show that the First Respondent sought advice on how to act unlawfully or iniquitously. In any event the Claimant received the Pilon within 28 days. My decision[20]I find that the Disputed Document retains its privileged status. It falls nowhere near the threshold of iniquitous conduct. It is a client seeking advice from its solicitors regarding one of its employees and whether a contractual obligation exists to pay a Pilon. The inclusion of a Pilon in an employment contract does not mean there is an automatic entitlement to receive that sum because there will be instances where an employee is dismissed for gross misconduct and their entitlement to a Pilon be lost. I consider it to be a perfectly proper and normal exchange between client and solicitor exploring the options and providing advice. It does not include advice to act unlawfully. For context it falls significantly short of the type of advice provided by legal advisers in the Curless and Abbeyfield cases which involved advice being given on concealing the actual reasons for dismissal with a view to minimising the risk of successful tribunal proceedings. In any event even that form of advice does not vitiate its privileged status. The Respondents’ strikeout application[21]The application is made pursuant to a document dated 17 January 2025 from the Respondent’s solicitors. Ms Reindorf KC confirmed that the strikeout application is not in relation to the merits or otherwise of the Consolidated Claims or that the Claimant has bought six separate claims but rather on the grounds of her conduct.
The Law
[22]The Claimant was dismissed on 22 August 2024. It is not necessary to document the grounds of that dismissal. The Claimant has brought a series of claims alleging that she was subject to race discrimination, in the handling of her applications for flexible working arrangements, that she undertook various protected acts in respect of which she alleges she has been victimised.[23]The Respondent’s application is brought pursuant to Rule 38 on the ground that the manner in which the proceedings have been conducted by the Claimant has been scandalous, unreasonable or vexatious. Ms Reindorf KC emphasises what she says is the vexatious nature of the conduct. Mr Barrett’s evidence[24]He is named is the 2nd Respondent. He is a qualified barrister and was responsible for the Claimant’s dismissal. He says that she has been rude, confrontational and in some cases quite disturbing. He refers to her making threats to him and his colleagues to include Doreen Akonor (Ms Akonor). He says that the Claimant’s actions have sought to undermine and besmirch his character and that of the 1st Respondent’s Board.[25]The Claimant together with Julie Wollard (Ms Woolard) were administrators on Diligent Boards and Diligent Entities and had the authentication code to access Companies House. He says that the Respondent was unable to remove the Claimant’s access to Diligent Entities and inadvertently forgot to change the Companies House authentication code to remove her access. He says that between 1am and 3am on 23 August 2024, the day after the Claimant’s dismissal, that significant malicious updates and filings were made on both Diligent Entities and Companies House. In relation to Companies House he says the changes included the 1st Respondent’s registered office address being changed to his home address in Wiltshire and resignations been filed on behalf of the 1st Respondent’s nine directors. He says that whilst he cannot definitely say it was the Claimant the overwhelming evidence points to her given that Ms Woolard was on holiday in Morocco at the time and she had no motivation to make such malicious changes. He says an email was received which indicated that someone had logged on to the system and that the Claimant’s log in details had changed. He says there could have been very serious consequences for the 1st Respondent as result of the changes made on its Companies House entry.[26]He says that on 29 August 2024 Ms Woolard logged on to Diligent Entities and found the system had been wiped of all data and everyone else had been removed as users. He says there could have been very serious consequences for the 1st Respondent.[27]He refers to the communications received from the Claimant as being excessive and disproportionate. He refers to various emails to include that of 4 September 2023 to Ms Akonor saying that she would report each and every one of you.[28]The Claimant made a complaint regarding his conduct to the Bar Standards Board on 9 September 2024 concerning the advice regarding her Pilon.[29]He has strong grounds to suspect that the Claimant was responsible for the cancellation of his home gas and electricity supplies which resulted in his boiler stopping and his spending most of a Saturday on the telephone to British Gas and EDF trying to work out what had happened. He was very concerned that he could have been the victim of identity fraud. He says that the overwhelming evidence points to her involvement given that she had his personal details to include address and utility details for internal verification purposes. Further, this took place on the same day as her report of his alleged misconduct to the Bar Standards Council. He accepts that the evidence does not definitely prove her culpability but says that whilst circumstantial it is compelling. He and his wife are extremely anxious about the Claimant’s conduct.[30]He gave would I consider to be emotive evidence that he was freaked out in respect of the Claimant’s barrage of communications and threats and he found her behaviour personally distressing and intimidating. The Law and submissions[31]Rule 38 (1) (b) provides: 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.[32]Vexatious includes anything that is an abuse of process. In A v B UKEAT 00 42/19/0405 (unreported, 4 May 2021) Lord Summers said that witness intimidation is an obvious example of scandalous, unreasonable or vexatious conduct in that it tends to subvert the process of justice and has the potential to impair the fairness of the trial. Ms Reindorf KC says that the conduct of the proceedings is not confined to matters taking place within the curtilage of the Tribunal. She argues that there can undoubtably be conduct outside the court or tribunal room, and outside the ambit of legal correspondence, which could be found to be a method of conducting the proceedings. She refers to the EAT’s judgment in Bolch v Chipman [2004] IRLR 140 at paragraph 55.[33]I need to take account of the case law which provides that it will only be in relatively rare cases that claims for discrimination should be struck out.[34]Mechkarov v Citibank NA [2016] ICR 1121 is authority for it should only being in the clearest case that a discrimination case should be struck out and that a tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.[35]I took account of the extremely well known passage in Anyanwu v South Bank Students’ Union [2001) IRLR305, HL per Lord Steyn at para 24 to the effect that it should be only in the most obvious and plainest cases that discrimination claim should be struck out and that such cases are generally fact sensitive.[36]However, the above cases concern striking out claims on the grounds that they have no reasonable prospect of success and are not directly relevant to the circumstances of this application.[37]I need to consider the question of whether there is a less drastic means to the end for which the strike out power exists. The Respondent says that the Claimant’s conduct is menacing, sinister, premeditated, includes intimidation of key witnesses one of whom is a named Respondent along with a concerted attempt to cause substantial to the 1st Respondent’s lawful operations. They say it evidently amounts to conduct of the proceedings. Ms Reindorf KC says there are no less drastic means of addressing such conduct than the strike out of the Consolidated Claims. It is not a matter of punishment it is simply a question of a Tribunal being put in a position in which it cannot properly do justice between the parties because the Claimant has made it impossible to do so.[38]The Claimant disputes that interpretation and says that the Respondents are seeking to circumvent a full hearing where the merits of her substantive claims would be considered. She says that subsequent to the hearing before EJ Snelson on 3 December 2024 she has refrained from all contact with the Respondents. She says the Respondents’ claims are exaggerated, unproven and that there has been no intimidation. She says that lesser measures should be considered first.
Conclusions
[39]I need to consider whether there is a less draconian means of addressing the Claimant’s conduct then the strike out of the Consolidated Claims. Whilst acknowledging that she conducted herself properly and professionally today I nevertheless find that the way she has conducted herself from 23 August 2024 until the case management hearing before EJ Snelson on 3 December 2024, and particularly from 23 August to 9 September 2024 was in my opinion scandalous, unreasonable and vexatious.[40]The Claimant asserted in relation to multiple incidents of alleged vexatious conduct that the Respondents could not prove them. I explained to her that my determination was discretionary and did not involve a criminal standard of prove beyond reasonable doubt. I reached a decision on the balance of probabilities as to whether to accept the Respondents’ evidence. I consider it significant that the Claimant did not avail herself of the opportunity to give evidence. I infer from that a reluctance to be cross examined under oath or affirmation as to her responsibility for these actions. Her approach has been to say the Respondents cannot categorically prove that she was responsible.[41]When the various incidents relied on are considered both individually and cumulatively I consider that the overwhelming evidence is that the Claimant had the opportunity and motivation to make the malicious alterations to the 1st Respondent’s entries on Companies House and Diligent Entities and change Mr Barratt’s home gas and electricity supplies. I place less reliance on the report to the Bar Standards Board as the Claimant could at least arguably consider that she had a legitimate ground to make that referral. Nevertheless it is relevant from a contextual and chronological perspective given that it points to her self-evident animosity towards Mr Barrett and the 1st Respondent. I consider that the overwhelming probability is that the Claimant took the various actions as retaliation to Mr Barrett as the dismissing officer and to cause him distress.[42]I take into account the fact that the Claimant said she had been treated unlawfully and is suffering from mental health issues.[43]Whilst the Claimant asserts that the matters relied upon by the Respondents do not go to the conduct of the proceedings because they were not strictly in the context of the progression of the Consolidated Claims I consider they are so indelibly linked to the proceedings, particularly where Mr Barrett is the 2nd Respondent and would be a witness, that it involves the intimidation of him and causes a very real concern as to whether he maybe so intimidated that he is not willing to give witness evidence.[44]I consider that threshold for striking out in the relevant case law has been satisfied on the basis that the Claimant’s actions were scandalous, unreasonable or vexatious. I have determined that the Claimant’s culpability has been established on the balance of probabilities. Indeed I consider there would be a strong grounds to argue that her culpability in respect of the various acts relied on by the Respondents would satisfy a higher threshold of beyond reasonable doubt but that is not a standard of proof which needs to be satisfied for the purposes of the Respondents’ strikeout application. In reaching this decision I have taken into account the impact on the Claimant of her losing the ability to pursue her various employment claims against the Respondents.[45]Whilst an unusual situation I consider that the Claimant’s actions are so extreme that I have no realistic alternative other than the draconian step of striking out the Consolidated Claims. I have considered whether a lesser sanction would be appropriate but given the seriousness of the matters I have identified that this would be inappropriate. Whilst I acknowledge that the Claimant conducted herself appropriately during the hearing, and has provided reassurance that she would continue to do so, and further that the more extreme conduct relied upon by the Respondents was in the period immediately after her dismissal, I nevertheless consider that her conduct was of such seriousness that any action other than the striking out of the Consolidated Claims would be insufficient.[46]Therefore for the reasons set out above I consider that the threshold of vexatious conduct has been satisfied and the entirety of the Consolidated Claims are struck out pursuant to Rule 38 (1) (b). Open Preliminary Hearing Heard by CVP before Employment Judge Nicolle on 3 October 2025 Claimant: Ms R Wadie 1st Respondent: Helios Towers Group LLP 2nd Respondent: Mr PJ Barrett Representation: Claimant: In person Respondent’s: Ms A Reindorf KC[1]The 1st Respondent is awarded £20,000 of its costs on the ground that the Claimant 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 pursuant to Rule 74(2)(a) of the Employment Tribunal Procedure Rules 2024 (the Rules).[2]At an open preliminary hearing before me on 14 February 2025 I gave judgment pursuant to which the Claimant’s six individual claims (the Consolidated Claims) were struck out in there entirely under Rule 38(a)(b) of the Rules as I considered that the manner in which the proceedings had been conducted by the Claimant had been scandalous, unreasonable or vexatious. The Claimant requested written reasons which are dated 13 March 2025 (the Strikeout Written Reasons). It is unnecessary for me to repeat the findings I made, but for completeness this decision in respect of the 1st respondent’s application for costs, should be read in conjunction with the Strikeout Written Reasons given that to a large extent those findings are germane to the 1st Respondent’s application for costs.[3]The 1st Respondent made an application for costs in a letter from its solicitors, Pinsent Masons LLP, dated 14 March 2025. The application included the following contentions.[4]The Claimant had been put on a cost warning by way of a without prejudice save as to costs letter dated 15 November 2024 which specified the 1st Respondent’s concerns in respect of the Claimant’s conduct of the proceedings and why the Consolidated Claims did not have reasonable prospects of success.[5]The 1st Respondent says that the six individual claims were based on the same or similar issues of fact and law. They contend that the Claimant lodged numerous applications to amend the claims, often shortly after the initial claim had been lodged.[6]The 1st Respondent says that it and its representatives were obliged to respond to investigations launched by professional bodies as result of the Claimant’s baseless and malicious allegations in respect of professional misconduct.[7]Whilst the Respondent has provided a schedule of costs attributable to the Consolidated Claims in excess of £176,000, they have limited the costs application £20,000, the maximum award not requiring detailed assessment in accordance with Rule 76(1)(a). The Claimant’s response dated 2 May 2025[8]The Claimant contends that the 1st Respondent’s application is unjustified, premature and procedurally improper given that she has a live appeal to the EAT. In this respect it is relevant to record that in a letter from the EAT dated 2 September 2025 the parties were advised that his Honour Judge Barklem had determined that there was no arguable error of law in the appeal which he dismissed.[9]The Claimant applied pursuant to Rule 3(10) and was advised that she should provide dates to avoid for a period of four months from August 2026.[10]The Claimant made reference to Howell v Lease Management Services Ltd UKEAT/0257/10/DM as authority for costs applications in the Employment Tribunal being adjourned pending the conclusion of any appeal. I searched on Westlaw, and more generally for this authority, but could find no reference to it. Ms Reindorf KC confirmed that she was also unable to locate the case. I therefore do not consider it appropriate to give any cognisance to such an authority.[11]The Claimant relies on Bolch v Chipman [2004] IRLR 140 (EAT) as authority that costs should not be awarded where the conduct in questions has not been factually and evidentially established. The Hearing The Claimant’s objections to the costs application being heard given her appeal to the EAT[12]The Claimant made various written objections in advance of the hearing to it taking place given her extant appeal to the EAT. I explained at the commencement of the hearing that I had made a judicial case management decision that it was appropriate for the cost application to be herd. Further, it had previously been listed for 9 May 2025 but was vacated at short notice because of my non availability as I was listed for a multi-day case.[13]I explained that whether a cost application is heard in advance of the final determination of an EAT appeal is a case management decision involving the balancing of competing considerations. There would undoubtedly be situations where it would be disproportionate, and contrary to overriding objective, to undertake a detailed assessment of costs where an appeal was outstanding. However, there will be many other occasions where it would be prejudicial to an applicant for costs to defer hearing the application on the ground that an appeal has been lodged particularly given the significant delay this would occasion given that an appellant can make a Rule 3(10) application and that does not in itself mean that the underlying appeal has substantive merit or likelihood of success. Further, in circumstances, such as the present, where an applicant for costs has limited them to £20,000, and a detailed assessment is not required, the tribunal time incurred in considering the application is relatively limited. There would also be a potential prejudicial effect if there was a substantial delay between a claim being struck out and a resultant costs applications being heard given that there would be a risk that the tribunal/judge who made the original determination may no longer be available and memories will have faded of the conduct in question. For all of these reasons I consider it appropriate that this costs application should be heard. The Claimant did not accept this position. The Claimant’s location[14]Ms Reindorf KC enquired as to the Claimant’s whereabouts given that there had been previous concerns as to whether she was in the UK. The Claimant refused to answer this question. She reiterated that she did not intend to give evidence as to her ability to pay pursuant to Rule 82. As such given that she was not going to give witness evidence I did not consider it necessary to insist that she confirmed her whereabouts given that she would only be making submissions and not giving evidence. The Claimant’s ability to pay[15]In relation to the Claimant’s ability to pay there is no obligation on a party to provide such information. The Claimant had been advised of the type of information she would need to provide pursuant to my case management order dated 17 February 2025, if she wished her ability to pay to be taken into account in determining what, if any, costs award should be made. I explained to her that if she did not give such evidence at this hearing she would not have the opportunity to do so at a subsequent juncture.[16]I explained to the Claimant the consequences of this approach and that the 1st Respondent would be able to argue its position in relation to costs solely on the basis of her conduct of the Consolidated Claims and without any reference to her ability to pay. I explained to the Claimant, as a litigant in person, that the potential consequence would be that the 1st Respondent would obtain a judgment for its costs, which it could seek to enforce in the County Court, with potential adverse consequences for her credit history.[17]The Claimant said that she did not wish to participate and after less than ten minutes of the hearing disconnected. The oral submissions of Ms Reindorf KC[18]Ms Reindorf KC does not seek to compartmentalise the costs incurred referable to different elements of the Claimant’s conduct. She considers that unnecessary given that the 1st Respondent is only seeking to recover £20,000 of its costs of circa £176,000.[19]She says that the Claimant’s conduct of issuing six separate claims between 9 July 2024 and 8 October 2024 was inherently unreasonable conduct. She did not consider it necessary to take me to the claims as it would involve a time consuming and complex analysis of the individual claims and given that the application is limited to £20,000 she considered this to be unnecessary. She did, however, refer me to the case management order of Employment Judge Snelson dated 12 December 2024. In particular she referred to paragraph 4 in which he recorded: “Initially, I attempted to analysis each of the claim forms in term, but this proved an unprofitable exercise because of the bewildering complexity arising from the Claimant’s repeated attempts to “amend” her claims by reformulating them. This has resulted in the bundle of documents running to over 370 pages”.[20]Further to paragraph 17: “The absurd complexity of this case has already been referred to. I stress the critical importance of the principle of proportionality”.[21]Ms Reindorf KC says that in circumstances where a claim has been struck out as result of the unreasonable conduct of the proceedings a tribunal is in effect obliged to consider a costs award pursuant to Rule 74(2)(a). The Law[22]Rule 74 provides: When a costs order or a preparation time order may or shall be made 74 (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.[23]The following propositions relevant to costs may be derived from the case law:[24]There is a two-stage exercise to making a costs order. The first question is whether a paying party has acted unreasonably or has in some other way invoked the jurisdiction to make a costs order. The second question is whether the discretion should be exercised to make an order (Oni v Unison ICR D17).[25]Costs orders in the Employment Tribunal are the exception rather than the rule (Gee v Shell [2003] IRLR 82, Lodwick v Southwark [2004] ICR 844).[26]While the threshold tests for making a costs order are the same whether or not a party is represented, in the application of the tests it is appropriate to take account of whether a litigant is professionally represented or not. Litigants in person should not be judged by the standards of a professional representative (AQ Ltd v Holden [2012] IRLR 648).[27]While a precise causal link between unreasonable conduct and specific costs is not required, it is not the case that causation is irrelevant. In Yerrakalva v Barnsley MBC [2012] ICR 420 Mummery LJ said: “41. 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. The main thrust of the passages cited above from my Judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment Tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances”.[28]Mummery LJ explained that the vital point in exercising the discretion to order costs is to look at the whole picture of what had 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.[29]In determining whether to make a costs order a Tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct the guidance in McPherson v BNP Paribas (London Branch) 2004 ICR 1398.[30]The assessment may require the Tribunal to take a “range of reasonable responses” approach to the conduct in question: Soloman v University of Hertfordshire [2019] UK EAT/0258/18. The Tribunal must be careful not to substitute its own view but rather to review the decision taken by the litigant Discussions and
Conclusions
[31]I consider it is appropriate to award the 1st Respondent £20,000 on account of its costs. I reach this decision for the following reasons.[32]I consider that the Claimant’s conduct of the proceedings was wholly unreasonable in issuing six separate claims within a period of three months between 9 July and 8 October 2024. Whilst I take account of the fact that the Claimant has at all times been a litigant in person, I consider that her conduct of the proceedings was unreasonable and was designed to cause the 1st Respondent maximum disruption, cost and inconvenience. I reach that finding in conjunction with the more general findings regarding the Claimant’s conduct in the Strikeout Written Reasons.[33]Whilst I am surprised at the level of costs incurred by Pinsent Masons LLP in managing the Tribunal litigation, I nevertheless accept that significant unnecessary costs were occasioned as result of the Claimant’s unreasonable and vexatious conduct and that these would reasonably have exceeded £20,000. It is not therefore necessary for me to apportion on a particularised basis the costs attributable to each additional claim and the extent to which the five additional claims after the initial one was lodged on 9 July 2024 involved the unreasonable addition of claims/reformulation of issues. From an overarching review of the pleadings I have no doubt in reaching the decision that the Claimant’s conduct was unreasonable and the threshold for an award of costs is met.[34]I also consider it appropriate to make a costs award to the 1st Respondent in connection with the Claimant’s conduct more generally in her conduct of the Tribunal proceedings and which, at least in part, formed the basis for the strike out of the Consolidated Claims. This included the 1st Respondent’s professional costs in rectifying the false findings, which I decided on the balance of probability had been made by the Claimant, with Companies House. I consider that these costs were attributable to her unreasonable conduct and are therefore costs which the 1st Respondent is entitled to recover.[35]I also consider that the other circumstances giving rise to the strike out, to include what I found on the balance of probabilities to be the Claimant’s malicious cancellation of Mr Barrett’s home gas and electricity supplies, that it would be appropriate to award the 1st Respondent its costs in respect of the open preliminary hearing on 14 February 2025 which resulted in the strike out of the Consolidated Claims. Ms Reindorf KC says that her fee for preparation and advocacy at that preliminary hearing was £12,500.[36]I do not consider that the Claimant has put forward any legitimate grounds which would dissuade me from awarding the 1st Respondent its costs in the sum of £20,000. I do not consider that a more detailed analysis is required as for the reasons set out I do not consider it necessary to demonstrate a precise causal link between her unreasonable conduct and the specific costs incurred on behalf of the 1st Respondent. I consider that such an exercise would be unnecessary and disproportionate given that the 1st Respondent’s costs exceeded the sum claimed of £20,000 by approximately 9 times. I do not have any doubt that the sum of £20,000, and almost certainly substantially more, was reasonably incurred by the 1st Respondent as a direct result of the Claimant’s unreasonable conduct. This approach is consistent with the judgment of Mummery LJ in Yerrakalva v Barnsley MPC. In reaching my determination I have considered the totality of the relevant circumstances. Further, I have taken account of the “nature, gravity and effect” of the Claimant’s unreasonable conduct in accordance with the guidance given in McPherson v BNP Paribas.