THE INDUSTRIAL TRIBUNALS

CASE REF:  00400/08

CLAIMANT:			Margaret (Marjorie) Hawkins

RESPONDENTS:		1.  The Alliance Party of Northern Ireland
				2.  Alliance Assembly Party
				3.  David Ford MLA

NOTICE PARTIES:		The Equality Commission of Northern Ireland
				Suzanne Bradley, Barrister-at-law

DECISION
The unanimous decision of the tribunal is that the respondents’ applications for costs and for wasted costs orders are refused.

Constitution of Tribunal:
Chairman:			Mr P Kinney
Members:			Mrs Hughes
				Mr McKenna

Appearances:
The claimant appeared and represented herself. 
The respondents were represented by Mr Denvir, Barrister-at-law, instructed by Campbell Stafford Solicitors. 
The notice parties were represented by Miss Bradley, Barrister-at-law, instructed by the Equality Commission.

(1)	The claimant’s claims against the respondent were withdrawn in open tribunal on 3 July 2009 after several days of hearing evidence. The circumstances in brief were that the Equality Commission (The Commission) withdrew funding and the claimant decided to withdraw her claims and they were accordingly dismissed. 

(2)	The respondents sought costs against the claimant and wasted costs orders against the Commission and its counsel Miss Bradley. The matter was listed for hearing on 10 September 2009. 

(3)	At the hearing, Mr Denvir confirmed that the respondents did not seek any costs against the claimant. After some reflection, and on reading rule 48 (4) of the Industrial Tribunals Rules of Procedure 2005, Mr Denvir accepted that he could not obtain a wasted cost order against the Commission and withdrew that application. He proceeded with an application against Miss Bradley. 

The Law

(4)	Rule 48 of the Rules of Procedure gives the tribunal power to make a wasted cost order against a party’s representative. Wasted costs are defined by Rule 48(3) as costs incurred by a party:

“(a)	as a result of any improper, unreasonable or negligent act or omission on the part of any representative; or

(b)	which, in the light of any such act or omission occurring after they were incurred, the tribunal or Chairman considers it unreasonable to expect that party to pay. “

(5)	Harvey on Industrial Relations and Employment Law at Division T, section 26,   paragraph 1077, sets out the leading guidance from the Court of Appeal in the case of Ridehalgh v Horsefield [1994] Ch 205, approved by the House of Lords in Medcalf v Mardell [2002] UKHL 27. This is set out in full in Miss Bradley’s written submissions and I will not rehearse it here.

(6)	I also referred the parties to the EAT case of Ratcliffe Duce and Gammer v Burns (EAT-100-08). In that case Elias J said in paragraph 13 (after referring to Ridehalgh and Medcalf) 

	“Where a wasted cost order is concerned, the question is not whether the party has acted unreasonably. The test is a more rigorous one, as the leading authorities referred to make plain. They demonstrate that a wasted costs order should not be made merely because a claimant pursues a hopeless case, and his representative does not dissuade him from so doing.”

(7)	Elias J went on to consider the problems created by privilege. At paragraph 22 he said  

“Furthermore, a particular problem arises in circumstances where the privilege of the client is not waived. In those circumstance it would be a very exceptional case indeed where a court would be entitled to infer that a party is abusing the process of the court by pursuing a hopeless case.”

(8)	Lastly, Elias J points also to the need to identify the causal link between the representative’s unreasonable conduct and the loss. At paragraph 24 he says

“Unlike the position where an ordinary costs order is made, where there is no need to fix the amount by reference to the additional costs actually resulting from unreasonable conduct (as the McPherson case makes clear), where a wasted costs order is made, the actual loss flowing from the misconduct must be calculated.”

Submissions

(9)	Mr Denvir referred to his written submissions insofar as they related to the conduct of Miss Bradley.  He contended that the failings in the claimant’s case should have been readily apparent both in the preparatory aspects of the case involving advice from counsel and then in the presentation and conduct of the case. Counsel did not exercise sufficient control over the content of the witness statements. He contended the proceedings were an abuse of process. He sought the respondent’s entire costs of the proceedings. 

(10)	Miss Bradley in her submissions also relied on her written submissions.  She said Mr Denvir’s submissions did not make clear what case the respondents were making against counsel alone as opposed to counsel and the commission. He had not identified what costs were actually incurred as a result of the actions of counsel. She said there had been no waiver of privilege by the claimant in this case. She contended the application was unmeritorious.

Conclusions

(11)	The tribunal considered both the written and oral submissions of the parties. We have determined that it is not appropriate to make a wasted cost order against counsel in this case for the following reasons.

(a)	The tribunal was not satisfied that any of the actions of the claimant’s counsel amounted to improper, unreasonable or negligent conduct. The tribunal took into account the guidance from the Court of Appeal in Ridehalgh and the comments of Elias J in Ratcliffe. The tribunal finds that Miss Bradley did not at any stage act improperly, unreasonably or negligently. 

(b)	It is rarely safe for a tribunal to assume that a case is being litigated on the advice of counsel. Miss Bradley is not in a position to waive privilege. It is not hers to waive. It belongs to the client. The tribunal must make full allowance for the inability of lawyers to provide all the information relating to advices and the conduct of the case. 

(c)	The respondents have not identified with any sufficient degree of precision the costs actually incurred by them as a result of the actions of counsel. 

(d)	The tribunal must be cautious in penalising counsel for presenting her client’s case to the tribunal. The representatives’ duty in the circumstances is to the tribunal and the tribunal find no breach of that duty by Miss Bradley. 

(12)	Accordingly, the tribunal have unanimously determined that the wasted costs order sought against the claimant’s counsel is refused. 

Chairman:

Date and place of hearing:		10 September 2009, Belfast.

Date decision recorded in register and issued to parties: