Lewsley v Business in the Community Lyndsey McKee [2011] NIIT 02641

THE INDUSTRIAL TRIBUNALS

CASE REF: 2641/10

CLAIMANT: Geraldine Lewsley

RESPONDENTS: 1. Business in the Community

2. Lyndsey McKee

DECISION (COSTS)

The tribunal has decided not to make a costs order against the claimant.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Ms G Ferguson

Mr R Hanna

Appearances:

The claimant was represented by Mr G Daly, Solicitor of Francis Hanna and Company.

The respondents were represented by Ms T Kennedy, the first named respondent’s Workplace Director.

REASONS

1. The claimant is a disabled person within the meaning of the Disability Discrimination Act 1995 (“the Act”). Business in the Community is a registered charity. Ms Lyndsey McKee is an employee of that body. Ms McKee was centrally involved in the arrangements for the placement of the claimant in a temporary post within Belfast Education and Library Board. The claimant has asserted that she was mistreated, in various respects, during the course of that placement. In these particular proceedings, which she brought under the Act, she made various allegations of unlawful discrimination and unlawful harassment against BIC and against Ms McKee personally.

2. In connection with various alleged instances of mistreatment, which were alleged to have occurred during the course of the claimant’s placement in the Board, she brought proceedings (case reference 2574/10) against the Board and against Ms Bernie Mooney, an employee of that Board. Those proceedings, like the present proceedings, were brought under the Act.

3. It was ordered that the two sets of proceedings should be heard together. The main hearing of the two cases was scheduled to take place over a two week period, beginning on 27 June 2011. On the day before the start of the main hearing, the claimant withdrew all of her claims, in both sets of proceedings. She said she was doing so because she had been unable to obtain free legal representation, for the purpose of the proceedings, from insurers.

The application

4. This is our decision in respect of an application for costs which BIC and Ms McKee have made against the claimant.

Some key rules

5. The ordinary principle in civil litigation is that, regardless of how meritorious your case is (or, indeed, regardless of any lack of merit in your case), you pay the respondents’ costs if you lose your case.

6. That ordinary principle in civil litigation does not apply in employment tribunal proceedings. Instead, a claimant in an industrial tribunal case is only at risk of costs in very limited circumstances.

7. In the context of the present case, the legal provision which is of central relevance is rule 40 of the Industrial Tribunals Rules (“the Rules”).

8. In the circumstances of this case, the effect of rule 40(2) is that a tribunal is entitled and obliged to consider making a costs order against a claimant only where, in the opinion of the tribunal, any of the circumstances in paragraph (3) of rule 40 apply. Having so considered, the tribunal may make a costs order against the claimant if it considers it to be appropriate to do so. If the tribunal decides to specify the sum which the claimant must pay, that sum cannot exceed £10,000. The tribunal is entitled to have regard to the claimant’s ability to pay, both when deciding whether it will make a costs order and in deciding how much that order should be. (See rule 41(2) of the Rules).

9. Accordingly, in considering the present application, it is necessary to have regard to the following matters:

(1) In the circumstances of this case, the tribunal has no power to make a costs order unless it is of the opinion that any of the circumstances in paragraph (3) of rule 40 apply.

(2) If the tribunal is of the opinion that any of the circumstances in rule 40(3) apply, it is obliged to consider making a costs order against the claimant.

(3) Even if the tribunal concludes that any of the circumstances in paragraph (3) apply, it retains a discretion not to make a costs order against the claimant. It ought only to make such a costs order, in that situation, if it considers it to be appropriate to do so.

(4) In deciding whether it is appropriate to do so, a tribunal is entitled to have regard to the claimant’s ability to pay.

10. In the context of the present case, the rule 40(3) circumstances can be listed as follows:

(1) The claimant has in bringing the proceedings acted vexatiously.

(2) The claimant has in bringing the proceedings acted abusively.

(3) The claimant has in bringing the proceedings acted disruptively.

(4) The claimant has in bringing the proceedings acted unreasonably.

(5) The claimant has in conducting the proceedings acted vexatiously.

(6) The claimant has in conducting the proceedings acted abusively.

(7) The claimant has in conducting the proceedings acted disruptively.

(8) The claimant has in conducting the proceedings acted unreasonably.

(9) The bringing of the proceedings has been misconceived. (In the present context, “misconceived” includes having no reasonable prospect of success).

(10) The conducting of the proceedings by the claimant has been misconceived.

11. It is important to remember that costs cannot be awarded in order to punish a claimant or to express disapproval in respect of a claimant’s conduct. Instead, costs are purely compensatory. (They are ordered solely for the purpose of compensating the respondent for legal costs which that respondent incurred because of some conduct on the part of the claimant which fell within the scope of the rule 40(3) list, as set out above).

12. It seems to us that case law shows that, in the context of the present case, the claimant can only be regarded as having acted vexatiously if we are satisfied that she pursued claims in circumstances in which she actually knew that they were groundless, or in circumstances in which she was pursuing spurious claims for an ulterior motive (a motive other than the proper motive of seeking to vindicate one’s rights).

The arguments

13. The claimant was self-represented throughout the litigation, until this application for costs was made.

14. The respondents were legally represented throughout much of the litigation, but they ceased to be legally represented by the time of the main hearing, and they were not legally represented in respect of this application for costs.

15. Ms Kennedy, the representative of the respondents in respect of this costs application, is not legally qualified, has limited experience of employment tribunal litigation, and has only a limited knowledge of the rules and legal principles which are applicable in this area of the law. Nevertheless, she pursued this costs application with energy and skill.

16. Ms Kennedy’s arguments in favour of her application can be summarised as follows. She says that the claimant’s claims never had any reasonable prospect of success. She says they were pursued in an unnecessarily confrontational and intemperate manner. She says that we should be satisfied that the claimant pursued her claims against the respondents merely out of spite, and without any genuine belief in the merits of her claims. Ms Kennedy says that BIC carries out important charitable work, and its resources have been unnecessarily depleted in defending these unmeritorious claims (as Ms Kennedy sees them); and that the proceedings were abusive and opportunistic.

17. Mr Daly’s arguments, in resistance to the application, can be summarised as follows. The tribunal is looking only at the papers in the case. It has not heard any evidence in the case. In those circumstances, the tribunal cannot reasonably be satisfied either that the proceedings were vexatious, or that they had no reasonable prospect of success. It must be borne in mind that the claimant was self-represented. He says that we should be satisfied that the claimant’s claim was withdrawn at the last minute only because of lack of funding.

The threshold criteria

18. The tribunal is not entitled to award costs unless one of the situations listed above (at paragraph 10 above) exists.

19. In our view, the respondents have not established an entitlement to an award of costs by reason of any abusive or disruptive conduct on the part of the claimant. An award of costs on such grounds would only become potentially available to the respondent if we were of the opinion that any abusive or disruptive conduct on the part of the claimant had caused the respondents to incur costs which they would not otherwise have incurred.

20. Having reviewed the papers which were brought to our attention in the course of this costs hearing, we are of the opinion that the claimant, on several occasions, expressed herself in unduly intemperate and confrontational terms. However, there is no evidence that this conduct had the effect of increasing the respondents’ legal costs.

21. We are not satisfied that the claimant has acted vexatiously in these proceedings. We have arrived at that conclusion for the following reasons and against the following background.

22. We have seen a letter dated 2 September 2011 from the claimant’s GP which shows that she is suffering from extreme anxiety and from depression. We note that, from May 2010 onwards, there has been an increase in the anti-depressants prescribed to her, because of a deterioration in mood and an increase in anxiety.

23. We consider that if a person suffers from serious anxiety and depression, her judgment may possibly become somewhat impaired, and her perspective upon events may possibly become somewhat distorted.

24. The next question is whether all or some of the relevant complaints (the complaints against the respondents) had no reasonable prospect of success. We deal with that question in the following paragraphs.

25. In our view, if the main hearing had gone ahead, the claimant’s complaints against the respondents would have been along the lines of the complaints which are set out in a letter dated 17 July 2010 which the claimant sent to BIC.

26. That is a 10 page letter. When we look at the letter, we see that the claimant’s complaints against the respondents consist of complaints about actions and omissions and complaints about what was said to her.

27. In essence, the claimant was complaining that the respondents did not take strong enough action, and were not sufficiently supportive of herself, in the context of the complaints which she was making about the way in which she had been treated, (during the course of her placement) by persons acting on behalf of the Board.

28. Some of the complaints in the letter relate to actions and omissions. Having looked at those alleged actions and omissions we take the view that, even if the claimant’s version of events in relation to those matters were to be entirely accepted, there is no reasonable prospect of any reasonable tribunal concluding that the respondents (by reason of those actions and omissions) were guilty of treatment of the claimant which is proscribed by the Act. (On the contrary, many of the acts and omissions complained of were obviously entirely reasonable and proportionate). Accordingly, in relation to those actions and omissions, the threshold criteria in rule 40(3) are made out, in that those complaints had no reasonable prospect of success.

29. Next, we look at the claimant’s lengthy account (in the July letter) of her conversations with Ms McKee. Even if we assume that the claimant’s version (of what was said) is an entirely correct and an entirely complete account of what was said, the position is as follows. We consider it to be very unlikely that any reasonable tribunal would conclude that the making of the statements complained of constituted mistreatment which is proscribed by the Act, with the exception of the following comments (which were attributed to Ms McKee).

30. Those “exceptional” comments are as follows:

(1) Ms McKee is alleged by the claimant to have said to her, “Do you realise the stress that you are putting Paul [Lawther] and I [under]”.

(2) The claimant also alleges that Ms McKee, during a conversation, said the following to her:

“Geraldine do you want my honest opinion on this situation? It is my view that you are intent on bringing us down”.

We have not lost sight of the fact that Ms McKee does not accept that either of the quoted remarks is both an accurate and complete version of events. However, if a tribunal were to decide that the quoted remarks were nevertheless an accurate and complete version of events, there would be an arguable issue as to whether or not, in all the circumstances of this case, there had been ill-treatment which was actionable under the Act.

31. Apart from the two alleged remarks which we have quoted in paragraph 30 above, we can see nothing, in the claimant’s lengthy list of complaints, which (even upon the claimant’s version of events) could properly lead to a finding of unlawful treatment under the Act.

32. According, the rule 40(3) threshold criteria, in respect of misconceived proceedings, are met in respect of all of the treatment complained of in the July 2010 letter, apart from the making of the two alleged remarks quoted at paragraph 30 above.

What would be the amount of any award?

33. For the avoidance of any doubt, we make it clear that we are satisfied that, as a result of being faced with legal claims from the claimant which had no reasonable prospect of success, the respondent properly incurred legal costs very substantially in excess of £250.

34. We are satisfied that the claimant has considerable disabilities. We are satisfied that, apart from her brief placement with the Board, she has been living on social security benefits for many years now. We are satisfied that she is currently living on social security benefits, and that there is no reason to believe that she will have any substantial other sources of income, apart from those benefits, at any time within the short to medium-term future.

35. Social security benefits are of course paid at rates which are designed to meet a recipient’s minimum living requirements; they do not incorporate scope for luxuries.

36. Accordingly, we are satisfied that the claimant has very limited, if any, disposable income. Against that background, if we were to make an award of costs, we would think it appropriate to limit any award to the sum of £250.

Is it appropriate to make an order?

37. What good would be done by making a £250 order for costs?

38. During the course of this costs hearing, we got the impression that Ms Kennedy thought that an award of costs might be useful as a means of vindicating the reputations of BIC and of Ms McKee. But their reputations need no such vindication. The claimant unilaterally withdrew her claims against both of the respondents. When a claimant does that, the relevant respondents are thereafter entitled to be treated as being innocent of the claims which had been made against them. It is true that the claimant asserts that she only withdrew her claim because of a lack of funding. (We have no proper basis for deciding that this was the main reason for the withdrawal, or the only reason for the withdrawal). Even if lack of funding was the main or sole reason for the withdrawal, the fact is that the claims against the respondents have been unilaterally withdrawn; accordingly, in those circumstances, the claims have been dismissed, and the respondents are entitled to be regarded as being innocent of any relevant complaints of discrimination or harassment.

39. Accordingly, the respondents do not need any vindication which they might feel would come from the making of a costs award against the claimant. In any event, the vindication of respondents would not be a legitimate reason for making a costs order.

40. Ms Kennedy makes the point that BIC conducts important charitable functions, and that its resources have been depleted by the making of these various claims. True, but BIC has very substantial resources, and its ability to do its charitable work is unlikely to be much affected by the availability, or unavailability, of a costs award of £250.

41. What harm would be done by making a £250 costs order?

42. The claimant has the misfortune of suffering from severe anxiety and depression. The making of a costs award, even of £250, may well adversely affect that condition.

43. Against that background, and for those reasons, we have decided not to make a costs order against the claimant.

Chairman:

Date and place of hearing: 26 September 2011, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Lewsley v Business in the Community Lyndsey McKee [2011] NIIT 02641_10IT (11 November 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/02641_10IT.html Cite as: [2011] NIIT 2641_10IT, [2011] NIIT 02641_10IT

Industrial Tribunals Northern Ireland Decisions