THE INDUSTRIAL TRIBUNALS
CASE REF: 1014/02
CLAIMANT: Paul Wrench
RESPONDENTS: 1. The Africa Trusts
2. Mr Shane McBreen
3. Africaid
4. African Orphans Trust
5. African Self-Help Trust
DECISION ON APPLICATION FOR COSTS
The unanimous decision of the tribunal is that the claimant's application for costs against the respondents is granted and the tribunal Orders the respondents and each of them to pay to the claimant costs amounting to £1,451.75.
Appearances:
The claimant was represented by Mr N Keery, Barrister-at-Law, instructed by Desmond J Doherty & Co., Solicitors.
The respondents were represented by Mr Shane McBreen (the second-named respondent).
REASONS
- At a hearing on 30 June 2005 the tribunal heard and determined the claimant's complaint against the respondents. In the course of the hearing of the matter on 30 June 2005, the claimant applied for costs against the respondents. The tribunal issued its determination in respect of all substantive issues in the case by a decision promulgated on 7 July 2005 but reserved the decision on costs which matter was then adjourned for hearing to 15 August 2005.
- At hearing on 15 August 2005 the tribunal dealt with a separate issue concerning a review of the tribunal's decision promulgated on 7 July 2005 which is the subject of a separate decision on the part of this tribunal. That matter concerned a draft letter of reference which did not affect the substantive issues heard and determined by the tribunal at the hearing of the matter on 30 June 2005.
THE ISSUE
- The claimant applied for costs against the respondents contending that the conduct of the course of the proceedings brought by the claimant against the respondents was conducted by the respondents in such a manner as to justify such an application on the grounds that the respondents had behaved in an unreasonable fashion. In correspondence sent by him on behalf of himself and the respondents to the Office of the Industrial Tribunals and the Fair Employment Tribunal, Mr McBreen had indicated that he wished to apply for costs against the claimant but at the hearing of the matter he withdrew any suggestion that he wished to proceed with such an application. Accordingly the tribunal had to determine the claimant's application for costs against the respondents.
THE TRIBUNAL'S FINDINGS
- On foot of the evidence adduced before it, both oral and documentary, the tribunal made the findings of fact set out below.
(a) On 13 May 2003 the matter was listed for hearing before an industrial tribunal. With the benefit of full legal advice and assistance being afforded to both the claimant and to the respondents, a compromise agreement was drawn up and signed on behalf of the claimant and the respondents and dated 13 May 2003. Materially, that compromise agreement provided that the respondents would pay the sum of £810.00 (which included £310.00 in respect of expenses owed) to the claimant within four weeks of the date of that agreement. It was also provided, inter alia, that an agreed letter of reference would be provided and other terms and conditions were applicable. However, the compromise agreement did not provide that the claimant was to do anything other than to withdraw his application against the respondents upon receipt of the agreed sum and the said letter of reference.
(b) The tribunal had sight of various documents emanating from Mr McBreen on behalf of the respondents and noted that Mr McBreen, in the course of such correspondence, provided reasons why the agreed sum would not or could not be paid by the respondents to the claimant. The tribunal noted the content of this course of correspondence and also heard from the claimant and from Mr McBreen on behalf of himself and the respondents at hearing in respect of these issues.
(c) The tribunal heard no evidence from any party on behalf of the respondents save for Mr McBreen in his oral testimony and significantly saw no documents adduced in evidence on behalf of the respondents in corroboration of Mr McBreen's contention that vouching receipts for expenses incurred had not been provided to the respondents' accountants and that these were required as a pre-requisite to satisfy Inland Revenue Regulations before he could release the payment to the claimant.
(d) The tribunal heard from the claimant concerning the nature and make up of the expenses incurred and noted that part of these were motoring expenses and part were volunteer expenses in a fixed amount which had been disbursed by the claimant and in respect of which no vouching in the nature of fuel expenses receipts would be applicable. In any event, the tribunal does not concern itself unduly in this decision with the matter of vouching for the reasons stated below.
(e) The tribunal enquired of Mr McBreen as to why he had not arranged for payment of part of the sum agreed as damages, the sum of £500.00, even if there was, as he saw it, an issue over the expenses component, the sum of £310.00. The tribunal was not provided with any satisfactory explanation of the delay in payment. The sum of £500.00 was indeed not paid by the respondents to the claimant until January 2005. The tribunal further heard that the said sum of £310.00 expenses, notwithstanding the tribunal's decision promulgated on 7 July 2005, had not been paid by the respondents to the claimant until 7 August 2005.
THE APPLICABLE LAW
- As the originating application in this case was despatched to the respondents at such a time as to provide that the Industrial Tribunals Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 did not apply in respect of costs, the applicable Rules of Procedure are those contained in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 and in particular, Rule 14 contained in Schedule 1 of the said 2004 Regulations. Rule 14 provides that where, in the opinion of the tribunal, a party has in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably, the tribunal shall consider making, and if it so decides, may make, an order containing an award against that party in respect of the costs incurred by the other party. A number of orders are available to the tribunal in that regard including, where the tribunal thinks fit, an order that the first party pay to the second party a specified sum in respect of the costs incurred by that second party.
THE TRIBUNAL'S DETERMINATION
- Having examined the facts of the matter and having heard the respective submissions of the parties including, on behalf of the claimant, a submission that the respondents via Mr McBreen had behaved in an entirely unreasonable fashion in disregarding the terms of the compromise agreement, without proper justification delaying payment of the sum agreed and the provision of a letter of reference and requiring, as a consequence, the claimant to come back before the tribunal to obtain an Order from the tribunal, it was contended that this conduct showed evidence of the respondents behaving in an unreasonable fashion, and as a consequence of this the costs of both the hearing on 30 June 2005 and the further hearing on 15 August 2005 had been incurred. In response to this application, Mr McBreen argued that it was the claimant who had delayed in the provision of vouching receipts in respect of expenses and who had not provided to him a copy of the compromise agreement including the text of the agreed letter of reference, and the claimant's conduct was such that he had been the cause of the entirety of the delay and as a consequence no costs ought properly to be awarded in his favour and against the respondents.
- Considering the submissions and taking into account all proper considerations, the tribunal regards the matter as being the very essence of simplicity. It is a fact that a compromise agreement was reached between the parties which was entirely unqualified as to any action to be taken on the part of the claimant save to withdraw the proceedings once the remainder of the terms thereof had been attended to by the respondents. At the time both parties had the benefit of full legal professional representation and the agreement was, no doubt, the subject of some discussion and negotiation at the time, so the tribunal believes. It would have been quite open to the respondents to have attached any particular conditions to the terms of the compromise agreement such as a requirement that the claimant ought properly to have vouched expenses or attended to other matters. Materially, any such terms and conditions which might otherwise have been included were omitted and the agreement provides, in an unqualified way, that the sum of £810.00 shall be paid within a period of four weeks by the respondents to the claimant and that the other matters shall be appropriately attended to.
- The tribunal sees no justification whatsoever for the failure on the part of the respondents over such a protracted and lengthy period to implement in full the terms of the agreement. There is no justification for this. For that reason the claimant had no option but to come back before the tribunal. The tribunal is of the view that the respondents behaved in an unreasonable fashion. As a result of this, in view of the fact that the respondents had earlier been legally represented, the decision on the part of the claimant to again retain legal representation to bring the matter back before the tribunal for a hearing on 30 June 2005 was reasonable and the costs incurred as a result of that hearing ought properly to be awarded in favour of the claimant and against the respondents. In respect of the costs of the further hearing on 15 August 2005, the tribunal notes the content of a letter directed to the Office of the Industrial Tribunals and the Fair Employment Tribunal by Mr McBreen and dated 29 June 2005 were, referring to the hearing that was to take place on the following day, Mr McBreen states that he would ask that the case be re-listed for another day should there be any application for costs as the respondents would seek to strenuously defend this and make a counter claim. That was the primary reason why the tribunal decided to adjourn the application for costs made on the part of the claimant on 30 June 2005. Accordingly, the tribunal takes the view that the additional costs incurred by the claimant of attending with legal representation at the hearing on 15 August 2005 have been incurred as a result of the conduct on the part of the respondents and that such conduct was in itself unreasonable and that the costs of the additional day ought properly to be awarded.
- The tribunal sought clarification from the claimant's representative as to the amount of legal professional costs applicable to the two days' hearing and such clarification was provided to the tribunal. The costs of the first day's hearing on 30 June 2005 were quantified at five hours' professional time on the part of the Solicitor at a rate of £90.00 per hour being £450.00 plus VAT @ £78.75 and Counsel's fee at £250.00, a total of £778.75 for the day. In respect of the further day's hearing, the appropriate figure was four hours' Solicitor's time @ £90.00 per hour being £360.00 together with VAT @ £63.00 and Counsel's fee : £250.00, a total of £673.00. The total costs therefore for both days' hearings would be £1,451.75.
- Having heard the foregoing figures, the tribunal was of the view that such costs were fair and reasonable and, further, the tribunal did not see any reason why the claimant ought to be required to bear any part of such costs incurred, which costs had been incurred as a result of the unreasonable conduct of the respondents.
- Accordingly, on foot of Rule 14 contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004, the tribunal unanimously determines that the conduct of the respondents has been unreasonable and the tribunal Orders the respondents and each of them to pay to the claimant a total sum of £1,451.75 in costs.
Chairman:
Date and place of hearing: 15 August 2005, Londonderry.
Date decision recorded in register and issued to parties:
