THE INDUSTRIAL TRIBUNALS

CASE REF:	  281/13

CLAIMANT:		Ernest Wardlow	

RESPONDENT:	Translink

COST DECISION

Constitution of Tribunal:

Employment Judge:	Employment Judge Sheils

Panel Members:		Ms M Mulligan
				Mr J Barbour

Appearances:

The claimant appeared and represented himself.  

The respondent was represented by Mr Pat Ferrity of Counsel, instructed by Ms Carmel Ferron of Macauley and Ritchie Solicitors.

The Application

1.	By letter dated 29 April 2014, the Claimant applied for an Order for the costs he had incurred in taking a claim for unfair dismissal against the Respondent.  The Claimant based this application on the fact that he had had to take a claim at all, as he had no other way to resolve his difficulties against his employer, and on the fact that there had been a finding of unfair dismissal against the Respondent and that they had behaved unreasonably and unfairly.

2.	This letter was referred to the Employment Judge and by letter dated 15 May 2014, the Claimant was subsequently advised by the Office that his Application for Costs had been made outside the 28 day time limit within which, such an application ought to have been made.  The Claimant was also advised of the terms of the rules in relation to costs and was invited to provide reasons as to why it would be in the interests of justice for the Tribunal to exercise its discretion to extend that 28 day time period to allow his Application for Costs to proceed.

3.	By letter dated the 22 May 2014 Claimant responded saying he believed it would be in the interests of justice to have an Order made in his favour on the following points:-

(1)	His legal representatives did not apply for costs on his behalf.

(2)	During the Tribunal he had asked his Legal Representatives about applying for costs, and was advised that he would not be entitled to costs.

(3)	He was not given information regarding the 28 day rule.

(4)	He would not have incurred these losses or fees if Translink (had) behaved reasonably.

4.	His letter added that he had “employed a solicitor and barrister to act in my best interest.  If I was, or am, entitled to apply for costs, they did not act in my best interest.”  His letter concluded “Translink acted unfairly and unreasonably.  During the three days at tribunal Mr Brian McKee & Mr Donard King sought to reach an settlement.  However Mr Pat Ferrity & Carmel Ferron who would not consider a settlement.”

5.	The matter was listed for Hearing.

The Evidence

Witnesses

6.	The Tribunal heard from the Claimant and his wife, Mrs Alma Wardlow.  

Documents

7.	The Tribunal was furnished with the following:-

-	Correspondence between the Claimant and the Office of Industrial Tribunals.

-	Correspondence between the Respondent’s Representatives and the Office of Industrial Tribunals.

-	Mr Donard King’s Bill in respect of the Claimant’s claim.

-	Copy extract from the Claimant’s bank account.

-	Copy of a letter from Dr J T Lavery.

Submissions

8.	The Tribunal heard submissions from Mr Ferrity.

Background

9.	The Claimant’s claims against the Respondent were for unfair dismissal, disability discrimination and perceived disability discrimination and they were heard over a 3 day period in September 2013.  A Decision was issued to the parties on 23 January 2014, dismissing the Claimant’s claim for disability discrimination and perceived disability discrimination and upholding his claim for unfair dismissal.  In respect of the latter, the Tribunal awarded the Claimant the sum of £37,587.50.

10.	On 4 February 2014, the Respondent’s representative forwarded a cheque to Mr Donard King in the Claimant’s favour, in the sum of £36,987.50.  This sum was the amount of the award with deductions for costs previously awarded by the Tribunal in the Respondent’s favour.

Findings of Fact

11.	The Tribunal found the following relevant facts:- 

12.	The Claimant and his wife stated that Mr King had advised them that his fees would be approximately £11,125.00.  Shortly after this the Claimant received Mr King’s bill, dated 7 February 2014, to that effect.  A copy of an extract of the Claimant’s bank account for between 19 February 2014 and 28 February 2014 showed an entry “F/FLOW DONARD KING”, £26,462.50, which the Claimant stated was his award, less Mr King’s fees.  

13.	The Claimant was aware that the Respondent had deducted £600 from his total award and that this related to an award of costs made against him by an earlier Tribunal. The Claimant did not query Mr King’s fees or the amount lodged, either with Mr King or at this Tribunal.
  
14.	The Claimant stated that he had not raised any query with Mr King about seeking costs against the Respondent at the time he had received his bill in February 2014.  He stated that he had spoken to Mr King about costs on the last day of the Hearing, 20 September 2013. He initially stated that Mr King had told him that there was no point in going for costs as each party bears his own costs.
  
15.	The Claimant stated that he was unaware that there was a deadline within which he had to apply for costs. He had not considered any issue of costs before his application on 29 April 2014 on the basis that he had not looked at the bill when it had first come in because his wife had read out the bill to him. He stated that he had not looked at the bill himself as he had been unwell and was attending Ards Mental Health Unit. 

16.	The Claimant also stated that he had not looked at the bill for at least a month after its arrival but later stated that he had not looked at the bill for three months later.  The Claimant stated that he took no dealings with any financial business in the house,  that his wife deals with all bills and letters, that he does not own a bank card and that his wife deals with all household administration.

17.	The Claimant accepted that he knew the Respondent had got an award of costs against him. He stated that he and his wife had discussed this on the basis of “if they can get costs, why can’t we”.  However he stated that he had not queried this with Mr King.  He stated that he had lost faith in Mr King at this stage as Mr King had said that each party must bear his own costs.  He stated that he had gone along with this until his wife made further enquiries and he then decided to apply for costs.

18.	The claimant stated that he had felt that he had been badly treated by the Respondent and that they had unreasonably and stubbornly refused to settle. He stated that he felt that the Respondent had unreasonably delayed the case and unnecessary elongated it by the late production of a document which had not been of any value. 

19.	For her part Mrs Wardlow broadly endorsed Mr Wardlow’s account of events. She confirmed that when the issue of costs had been raised at the end of the hearing, that Mr King had said that each party bears his own costs. She stated that she had taken Mr King at his word.  Mrs Wardlow also stated that Mr King had also advised them that a costs application was unlikely to be successful. 

20.	Mrs Wardlow confirmed that on receipt of the bill she became aware of the fact that the Respondent had successfully obtained an award of costs during the process of the case.  She accepted that she had not queried this with Mr King, even to ask if the Respondent had, could the Claimant now not do so. 

21.	Mrs Wardlow stated that there had been discussion at her work about the decision when it was issued in January 2014 as it had been covered by the Press. She stated that she had had another conversation with a union representative at her work about the bill and he had raised with her the possibility of applying for costs. Mrs Wardlow was unable to say when this conversation had taken place, only that it was not in February, when she had received the bill and that it was at a time nearer April 2014.

22.	Mrs Wardlow said that she had not gone back to Mr King to make further enquiries on this as she had lost faith in him and that he had advised them, after the hearing, that a costs application was unlikely to be successful.

23.	Mrs Wardlow said that after the conversation she had had with the trade union representative she had consulted the Tribunal’s website. She also rang the Office and when she was told that there would be no fee or cost in making an application for costs she decided to go ahead.

The Law

24.	Article 38 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 makes provision for costs to be ordered and Articles 39 to 47 set out the circumstances where this may be done.

25.	Article 38 (7) states that costs may be applied for at any stage during the proceedings and up until 28 days after the decision has been issued. If an application for costs is made after 28 days it shall not be accepted unless a tribunal considers that it is in the interests of justice to do so.

26.	Article 40 (3) sets out the conditions that must be met before a tribunal can make an order for costs.  These are that the tribunal must be satisfied that the party against who the application is brought (in this case the Respondent), in bringing the proceedings, he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting the proceedings … has been misconceived.

The Tribunal’s Conclusions

27.	The Tribunal concluded that the Claimant had not presented any cogent evidence, explanation or other basis as to why it would be in the interests of justice for the Tribunal to exercise its discretion and extend the 28 day deadline to allow his application for costs to be considered. 

28.	The Tribunal was satisfied that both the Claimant and his wife were aware that costs could be awarded by a Tribunal to one party or the other in certain circumstances. It was clear from the evidence that there had been a discussion about costs with Mr King after the hearing. The Tribunal noted that the Claimant’s version of this conversation was misleadingly brief and that his wife’s fuller version suggested to the Tribunal that both of them had been properly advised on the issue of costs by Mr King after the hearing in September 2013.

29.	The Tribunal rejected the evidence of the Claimant and Mrs Wardlow that they had not queried the question of costs with Mr King on the basis that they had lost faith in him. The Tribunal concluded that Mr King had advised them in September that a costs application would be unlikely to succeed and they chose not to ask him again, knowing what his answer might be.  

30.	The Tribunal also rejected the Claimant’s contentions as to why he had not queried the issue of costs at the time the bill arrived. The Tribunal noted the conflicting evidence given by the Claimant on this point and had no hesitation in rejecting his evidence.

31.	The Tribunal also concluded that the conversation Mrs Wardlow had with the trade union representative, the one that allegedly spurred her to begin the process of applying for costs, was more likely to have occurred in either January, when the story of the decision was in the Press or in February, when the bill was received, than in April. The Tribunal concluded that Mrs Wardlow’s evidence on this point was purposefully vague and rejected it. 

32.	In the event that the Tribunal was wrong to conclude that there was no basis on which to exercise its discretion to extend the time limit and allow the application to be heard, the Tribunal considered the Claimant’s claim for costs. The Tribunal rejected the application for the following reasons:-

33.	The Tribunal rejected the Claimant’s proposition that the Respondent or their representatives had acted vexatiously, abusively, disruptively or unreasonably in conducting the proceedings by refusing to settle this case. This was not a straightforward case. It contained a number of difficult points of law. 

34.	The Tribunal also rejected the proposition that the Respondent had so acted by asking for the late production of a salient document. It is to be noted that although the Claimant regarded this document to be of little value to the Respondent’s case the Tribunal found it of value to assist it in reaching its ultimate conclusion.
 
35.	The Tribunal did not accept that the Claimant’s application for costs could succeed on the basis that he had felt himself badly treated by the Respondent. That was an integral part of the Claimant’s claim of unfair dismissal.  This was to some extent satisfied by the success of that part of his claim. Injury to feelings is not a head of compensation in unfair dismissal claims.

36.	Accordingly the Claimant’s claim for costs fails.

Employment Judge:       

Date and place of hearing:	27 August 2014, Belfast.		

Date decision recorded in register and issued to parties: