Mr F Davies v GEO Speciality Chemicals UK Ltd: 6008189/2024
JUDGMENT
[1]The Claimant’s claim has no reasonable prospects of success and is struck out and dismissed. EMPLOYMENT JUDGE BEEVERREASONS
[1]The Tribunal gave an oral judgment with reasons following the conclusion of this hearing that took place 12 February 2025. The written judgment was sent to the parties on 26 February 2025.[2]By email dated 26 March 2025, the respondent applied for costs, with an accompanying cost schedule and bundle of relevant documents. The claimant was requested by the Tribunal to provide his comments and he did so by email dated 21 April 2025. The Rules and Relevant Law[3]The Employment Tribunal Procedure Rules 2024 is as follows, noting in particular rules 74 -75: When a costs order or a preparation time order may or must be made 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a Page 1 of 10 costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. 2) The Tribunal must consider making a costs order or a preparation time order 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 of it, or the way that the proceedings, or part of it, have been conducted, (b)any claim, response or reply had no reasonable prospect of success, or (c)a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned. (4) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal must order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a)the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing, and (b)the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment. Procedure 75.—(1) 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. (2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order).[4]The Tribunal had regard to relevant case law:[5]In Radia v Jefferies International Limited UKEAT/0007/18/JOJ, in particular paragraphs 60-68. Paragraph 61 … “It is well-established that the first question for a Tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of r 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that Page 2 of 10 the Tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the Tribunal of a judicial discretion. If it decides in principle to make a costs order, the Tribunal must consider the amount in accordance with r 78. Rule 84 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to ability to pay.”. Paragraph 64 … “This means that, in practice, where costs are sought both through the r 76(1)(a) and the r 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?”. Paragraph 65 … “I should say something further about how the Employment Tribunal should approach an application seeking the whole costs of the litigation, on the basis that the claim ‘had no reasonable prospects of success’ from the outset. It should first, at stage 1, consider whether that was, objectively, the position, when the claim was begun. If so, then at stage 2 the Tribunal will usually need to consider whether, at that time, the complainant knew this to be the case, or at least reasonably ought to have known it. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation.” Paragraph 66 … “This point needs to be considered in a little more detail. It may be observed that the test of ‘no reasonable prospect of success’ appears in both r 76(1)(b), and in the strike-out Rule (r 37(1)(a)). But the task carried out by the Tribunal under each of these provisions is different. When considering a strike-out application, the Tribunal must decide whether the complaint or argument in question ‘has’ – at the very same time when it decides that application – no reasonable prospect, based on the information available to the Tribunal at that point. Such applications are often considered at an early stage in the litigation, without the benefit of sight of any evidence; and the Tribunal’s task is to assess the prospects of the claim succeeding if or when it comes to trial in the future. Those prospects are usually considered, therefore, on the basis of the case asserted, taken at its highest, although the Tribunal can also take account, for example, of key documents that may be before it at that point.”. Paragraph 67 … “Where the Tribunal is considering a costs application at the end of, or after, a trial, it has to decide whether the claims ‘had’ no reasonable prospect of success, judged on the basis of the information that was known or Page 3 of 10 reasonably available at the start, and considering how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked. But the Tribunal is making that decision at a later point in time, when it has much more information and evidence available to it, following the trial having in fact taken place. As long as it maintains its focus on the question of how things would have looked at the time when the claim began, it may, and should, take account of any information it has gained, and evidence it has seen, by virtue of having heard the case, that may properly cast light back on that question. But it should not have regard to information or evidence which would not have been available at that earlier time.”.[6]The guidance in Radia v Jefferies International Limited UKEAT/0007/18/JOJ sets a two-stage process when determining a costs application: first, to consider whether the threshold is made out, and then secondly, even if so, it does not automatically follow that a costs order will be made. This is an exercise of the Tribunal’s discretion.[7]Next, the fact that a party is unrepresented can also be a relevant consideration in deciding whether to award costs. See AQ Ltd v Holden 2012 IRLR 648, EAT. The threshold tests governing the award of costs or a preparation time order are the same whether a litigant is or is not professionally represented, but that the application of those tests should take this factor into account. An Tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Furthermore, the EAT observed, even if the threshold tests for an order for costs are met, the tribunal has discretion whether to make an order, which will be exercised having regard to all the circumstances. Equally, the fact that a party is unrepresented is no barrier to an award of costs being awarded against him or her, if appropriate to do so. In Holden, the EAT said ‘This is [not] to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.’ See Vaughan v London Borough of Lewisham and ors 2013 IRLR 713 EAT. The Facts and the Tribunal’s Dismissal of the Second Claim[8]The background facts are set out in the letter of application dated 26 March 2025. It refers to a prior Tribunal case (referred to by the parties as “the First Claim”) that resulted in a Hearing which, in part, involved a witness giving evidence to the Tribunal on 20 May 2025. Page 4 of 10[9]What that witness said at that Hearing became central to the claimant’s current Tribunal claim (referred to by the parties as “the Second Claim”). In summary, the claimant has alleged that what the witness said amounted to an act of unlawful discrimination.[10]Following pleadings, a Preliminary Hearing in the Second Claim took place, and the Tribunal dealt with an application made by the respondent to strike out the claim. The application to strike out had four broad lines of attack: 10.1. Judicial proceedings immunity 10.2. No liability under section 108 EqA (Employment relationship ended) 10.3. Res Judicata (abuse of process) 10.4. Strike out for no reasonable prospects.[11]The Tribunal gave an oral decision. There was no request for written reasons. The Tribunal decided: 11.1. that the Second Claim fell squarely within the judicial immunity rule which therefore applied to the Second Claim and that the Tribunal had no discretion to disapply it. 11.2. The Tribunal was not prepared to conclude that on the basis of the Second Claim as pleaded the unlawful victimisation alleged by the Claimant was not caught by section 108, and that it was a matter of factual enquiry. The Tribunal did not conclude that there were no reasonable prospects 11.3. The Tribunal was not prepared to conclude that there were no reasonable prospects in respect of either res judicata or in respect of the merits of the claim. 11.4. The Tribunal concluded that but for its finding on judicial immunity this was a case in which it would have issued a deposit order both in respect of the res judicata point and also in respect of the factual merits of the claim more generally.[12]As a result, the Second Claim was dismissed on the sole ground that the Second Claim had no reasonable prospects of success, given the judicial immunity principle. The Costs Application[13]The respondent makes its application on 2 grounds, that: 13.1. pursuant to Rule 74(2)(a) of the Rules, in bringing and/or conducting the proceedings (or part), the claimant acted vexatiously, abusively, disruptively or otherwise unreasonably; and/ 13.2. pursuant to Rule 74(2)(b) of the Rules the claimant’s claim had no reasonable prospect of success. Page 5 of 10[14]The application is set out in more detail in the respondent’s letter of application dated 26 March 2025. In paragraph 3, the letter cites 5 reasons why there are “no reasonable prospects”. These are briefly:(i) judicial immunity,(ii) section 108,(iii) repeating the allegations from the First Claim,(iv) res judicata,(v) a fair hearing would not have been possible.[15]Further, at paragraph 4, the letter cites reasons why the conduct of the proceedings was “vexatious” etc, citing(i) the fact that there was no reasonable prospect of success,(ii) the without prejudice letter dated 10 January 2025 explaining the basis for lack of merit and the claimant’s refusal to accept the respondent’s offer that he withdraw his claim in return for an agreement by the respondent not to pursue costs.[16]The claimant’s response is contained in his email dated 21 April 2025. Discussion and Conclusion Dealing with the application on paper[17]The Tribunal is satisfied that both parties have had a reasonable opportunity to make representations in writing in respect of the costs application. The Tribunal is satisfied that dealing with the matter on paper in the light of those submissions would be proportionate and in accordance with the overriding objective. Neither party had requested that the matter should be dealt with at a hearing and the Tribunal did conclude that it would be in the interests of justice to deal with it otherwise than at a hearing. Threshold[18]The Tribunal must first consider whether the respondent has shown that this case meets the threshold set by rule 74, here that the Second Claim had no reasonable prosect of success (rule 74(1)(b)) and/or that the claimant had conducted the proceedings vexatiously etc within the meaning of rule 74(1)(a).[19]The Tribunal’s decision given orally on 12 February 2025 precludes the respondent from successfully asserting that the Second Claim has no reasonable prospect of success in any relevant respect, save in respect of judicial immunity.[20]The Tribunal therefore concludes that the Respondent has failed to satisfy the threshold test for the purpose of rule 74(1)(b), no reasonable prospect of success, save in respect of judicial immunity.[21]In that respect, the Tribunal reminded itself of Radia, para 65 in particular. The Tribunal is satisfied, for the purpose of the threshold criteria, that it was Page 6 of 10 objectively the position when the claim was begun. In the present case, the material question is therefore likely to be whether, at that time, or any later time, the claimant knew this to be the case, or at least reasonably ought to have known it. This features at the second stage of consideration, at the discretion stage below.[22]The alternative threshold asserted by the respondent is rule 74(1)(a), wherein the respondent asserts that the claimant has acted vexatiously or otherwise unreasonably by pursuing the Second Claim in circumstances that indicate he was simply seeking to re-litigate the First Claim and/or knew that his claim had no merit from the outset or at least from the point of the without prejudice letter dated 10 January 2025.[23]Leaving to one side the judicial immunity principle, the alternative threshold assertions add little if anything to the grounds asserted at the Preliminary Hearing, including res judicata, and in respect of which the Tribunal did not find to be well-founded. The Tribunal on 12 February 2025 was not satisfied that the Second Claim was a re-litigation of the First Claim or that there were compelling reasons to prevent the claimant from pursuing the Second Claim. The Tribunal was not satisfied that the facts underlying the Second Claim had no prospect of success and it follows that it would be a high hurdle for respondent to satisfy the Tribunal in this application that the conduct of the claimant was unreasonable. No compelling facts are set out by the respondent to support any assertion that the claimant’s conduct was vexatious or otherwise abusive or unreasonable within the meaning of rule 74.[24]The respondent asserts that the claimant acted unreasonably in bringing and thereafter pursuing the claim given that it had no prospects. Self-evidently, given the findings of the Tribunal above, this is only likely to be applicable in respect of judicial immunity.[25]The claimant is a litigant in person. On any view, arguments relating to judicial immunity are complex. The mere fact that the respondent had asserted in its pleadings that the principle of judicial immunity was applicable should not be likely to act without more as sufficient proof that the claimant acted unreasonably in pursuing his claim. Notwithstanding that the respondent’s argument was ultimately successful, the Tribunal does not consider that the claimant acted unreasonably in bringing the claim. He could not be said to have known or reasonably expected to know that his claim had no prospects.[26]The claimant set out his position in some more detail in a position statement dated 23 December 2024 which reflects the legal and factual complexities of the case at least as the Claimant saw it at that time. There is insufficient evidence to conclude that the claimant had anything other than a genuine intention to pursue the Second Claim on its own merits. Page 7 of 10[27]The respondent then set out in its without prejudice letter dated 10 January 2025 a detailed argument about why the Second Claim had no prospects. The letter referred to judicial immunity and also to res judicata/estoppel. The letter gave the claimant until 24 January 2025 to withdraw his claim and to agree COT3 wording.[28]The claimant did not accept that offer. The 12 February 2025 hearing proceeded. As set out above, the Tribunal made findings in respect of a number of aspects of the application made by the respondent.[29]In the event, but for the judicial immunity argument, the claim would have proceeded albeit subject to a deposit order.[30]The without prejudice letter set out reasons why the respondent believed that the claimant’s claim had no prospects. The respondent’s letter was professional and appropriate. It does not follow though that the claimant’s conduct is necessarily unreasonable in not accepting the respondent’s time-limited offer of settlement.[31]Taking a step back and considering the position of the claimant at that time, and bearing in mind that he was a litigant in person and that this was a claim with notable legal complexity, the Tribunal concludes that in continuing with the claim after 10 January 2025 the claimant did not act unreasonably. This is so for the following reasons: 31.1. The respondent’s explanation entailed complex legal issues; while it may have been reasonable for the respondent to expect that the claimant might respond constructively, it was not inherently unreasonable for the claimant to expect that an Employment Judge should make that legal determination 31.2. The respondent’s letter although both fairly and professionally drafted reflected more than one legal argument in circumstances where only one legal argument was ultimately successful at the hearing on 12 February 2025. 31.3. The offer made by the respondent was available to accept for 14 days only and therefore by implication then expired after 25 January 2025 31.4. Given the content of the claimant’s position statement, 23 December 2024, as well as his skeleton argument for the hearing and also his comments in response to this application, it is apparent that the claimant was engaged in his litigation. This is not a case of a claimant simply failing to engage with the case against him.[32]The Tribunal finds that the respondent has failed to establish the necessary threshold of vexatious etc including unreasonable conduct under rule 74(1)(a). The application for costs on the basis of rule 74(1)(a) fails and is refused. Page 8 of 10 Discretion[33]The respondent has satisfied the threshold test for the purpose of rule 74(1)(b), that the claim had no reasonable prospect of success in one material respect, that is, in relation to judicial immunity.[34]The Tribunal went on to consider its discretion to award costs. It reminded itself of the Radia dicta. It asked itself whether in all the circumstances the claimant knew or ought reasonably to have known that his claim had no prospects. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. The Tribunal did ultimately make a decision in favour of the respondent albeit in respect of one aspect only.[35]The Tribunal does not consider that the claimant knew that his claim had not got reasonable prospects but continued regardless. That is so even given the respondent’s recent without prejudice letter. His conduct is indicative of a claimant who not unreasonably sought the Tribunal’s determination of what can fairly be described as a series of complex legal issues.[36]More so, it is difficult to reach a contrary conclusion in respect of what the claimant ought reasonably to have known. The claimant would not reasonably have known that arguments based on res judicata would not be successful perhaps any more than legal arguments based on judicial immunity would be successful ultimately. What the claimant ought reasonably to have known includes an appreciation of his subjective circumstances, including his status of a litigant in person.[37]Taking a broad view of the circumstances of these proceedings, and in reflecting on the fact that the respondent was successful only in one respect in seeking a dismissal of the proceedings but had not been successful in a number of other respects, the Tribunal has considered whether to make a costs order and concluded that it would not be appropriate to do so. In the exercise of its discretion, the Tribunal has had regard to the fact that the claimant was a litigant in person, his claim faced a series of legal complexities, including a legally complex issue that resulted in his claim being dismissed.[38]The Tribunal finds that it would not be appropriate to exercise its discretion to award costs in this matter. We take account of our finding that the respondent’s conduct throughout was appropriate. Notwithstanding, this was a case of genuine legal complexity from the claimant’s LiP perspective. The without prejudice letter dated 10 January albeit entirely professional in its content was not of itself(i) enough to convert the claimant’s failure to accept the offer of settlement into unreasonable conduct or(ii) a compelling enough reason to persuade the Tribunal to exercise its discretion to award costs against the claimant. Page 9 of 10[39]For all those reasons the Tribunal would not exercise its discretion to award the costs sought by the r espondents either under rule 74(1)(a) or 74(1)(b).[40]The respondents’ application is therefore dismissed. EMPLOYMENT JUDGE BEEVER SIGNED BY