DR E MICHALAK v UNIVERSITY OF LEEDS DEPARTMENT OF NHS POSTGRADUATE MENTAL AND DENTAL EDUCATION [2009] UKEAT 0319_09_1611

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0319_09_1611

Case No Appeal No. UKEAT/0319/09/CEA

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR E MICHALAKAPPELLANT

UNIVERSITY OF LEEDS DEPARTMENT OF NHS POSTGRADUATE MENTAL AND DENTAL EDUCATIONRESPONDENT

Before

His Honour Judge McMullen

Date 16 November 2009

[1]APPEARANCES For the Appellant DR E MICHALAK (The Appellant in Person) For the Respondent Written submissions SUMMARY PRACTICE & PROCEDURE Costs Appellate jurisdiction/reasons/Burns-Barke An award of costs against a Claimant whose claims were struck out was set aside as the Employment Tribunal did not make express findings linking her conduct to any provision in Rule 40, failing also to comply with Rule 30. HIS HONOUR JUDGE McMULLEN QC This is an appeal against an order of costs. It is the judgment of the court to which all members have contributed. We will refer to the parties as the Claimant and the Respondent. Introduction

[2]It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting at Leeds, registered with reasons on 11 July 2008. This case came before me on a number of occasions and I have given a judgment so that other aspects of the Claimant's dissatisfaction with her cases being struck out are now at an end. What remains is her outstanding appeal against an order of £750 of costs.

[3]There has been some confusion about who is the beneficiary of this award but as will become clear this does not matter. The Employment Tribunal dismissed the claims against the Yorkshire Deanery and/or The University of Leeds, Department of NHS Postgraduate Mental and Dental Education and against two individual medical practitioners. It then turned to consider a letter of 30 May 2008 by the Respondent's solicitors Messrs Hempsons prior to the hearing in which they gave the Claimant the opportunity to withdraw the claims because in their view they were misguided and if they were struck out an order for costs would likely be sought.

[4]In the letter, the reasons are cogently argued and do not contain an empty threat but a clear indication of what the Respondent's position would be. Since Hempsons acknowledge that the Claimant was acting for herself, they pointed her towards alternative sources of advice like the Citizens Advice, the British Medical Association or a lawyer. The letter was not threatening but was realistic. The Claimant pressed on and her claims were struck out.

[5]The Employment Tribunal then considered the cost position and the sum of its deliberations is as follows:

"12. After giving Judgment to strike out the claims of the Claimant the Respondent made an application for costs against the Claimant. They produced a schedule of costs which amounted to some £5043.10. The Tribunal immediately made it abundantly clear that under no circumstances were they prepared to even consider an order of costs in that amount. The case had been prepared and presented by a senior Solicitor with a charging rate of £130 per hour which the Tribunal felt was perfectly reasonable. 13. The Tribunal therefore considered what it felt was an appropriate period of time for a senior Solicitor to have spent in preparing and presenting the arguments in respect of the Pre-Hearing Review. The Tribunal considered the financial circumstances of the Claimant. The Claimant was still receiving her full salary even through she was suspended from her position with the NHS Trust. Her salary was £89,000 per year. The Claimant's husband was also a qualified medical practitioner but he indicated that he had given up his job in order to care for his wife. He claimed that their family outgoings were greater than their income. However, the Claimant also confirmed that the Claimant and his wife were paying for their five year old to go to a fee paying school and also contributing towards living expenses of their daughter, aged 27, living in London. Taking into account those financial circumstances the Tribunal considered therefore that the Claimant was in a position to make a reasonable contribution towards the cost of the Respondent. In all the circumstances the Claimant was ordered to pay £750 towards the costs of the Respondent of and in respect of the Pre-Hearing Review."

[6]The Claimant appealed. The Respondent, the Deanery, submitted that the Tribunal had been correct. It said that it had written to the Claimant indicating that the claims were misconceived. This is not correct; that word does not appear in Hempsons' letter but it does under the Rules come within the meaning of having no reasonable prospect of success.

[7]The Respondent's answer draws attention to Rule 40. A Tribunal may make an award on the grounds that the paying party has, in bringing the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.

[8]The Employment Tribunal did not directly cite the Rule. It may be implicit that the reasons for which it had struck out the claims - that there were no reasonable prospects - could be read across into the costs order but in our judgment that is not sufficient. The language of Rule 40 is condign and pejorative. Rule 30 requires a structured approach to judgment-writing. There has to be an express finding of material forming the subject matter of Rule 40 before a Tribunal can make an order. It may do so in shorthand by referring to all the foregoing matters but in this case there is neither. We consider that when an order is made of this nature it behoves an Employment Tribunal to say so. The Tribunal went directly into considering the quantum of the costs. There is no issue about the way in which the costs were made up but the essential linkage between the conduct of the Claimant and the award of costs is not here made and, therefore, it is defective.

[9]It is true the Tribunal descended into an analysis of the Claimant's means, noting that she was being paid £89,000 a year by what was accepted to be her employer, the Trust. I analysed the relationship between the various parties in the judgment I gave to which reference should be made. It may be that someone reading the judgment of the Employment Tribunal would think it was a logical conclusion, in the light of the failure by the Claimant to register a claim against any of the persons she started against, that they had no reasonable prospect of success, and a costs order might be made. They might be fortified in that view if they had read the previous fair letter written by the Respondent, but that still does not mean the Tribunal should award costs. It is a separate discretion to be exercised in the light of all the material and there is no indication here as to which category under Rule 40 this conduct falls.

[10]Since the Claimant tells us that she is part way through proceedings involving some of the personalities, we will say no more about the circumstances in which this order was made. The judgment insofar as it now remains (that is an order of costs to be paid by the Claimant of £750) is set aside.