Wednesday 2nd May 2012 at 6:00am

Again on costs (Doyle v North West London Hospitals NHS Trust)

After a good decision of the EAT in Roberts v Barley, we have another attempt by the judiciary to reign in the growing trend for Respondent representatives (no doubt encouraged by the Coalition’s reforms) to nudge the Tribunal into becoming a jurisdiction where costs are ordinarily awarded.

In Doyle v North West London Hospitals NHS Trust, the EAT considered a race claim which a judge sitting at Watford Employment Tribunal found to have been brought without good faith. The Respondent applied for costs, which it told the ET were already £60,000 and the EAT was told the true figure was over £100,000.

The application was made at the end of the hearing and the claimant’s representative (unhappily, her own partner) failed to make any submissions as to her ability to pay. The EAT accepted, in principle, that the claimant should pay costs, and that in principle these should be the full costs. However, the EAT went on to say that the ET erred in failing to make any enquiry about the claimant’s means:

The following factors were key to the costs decision, the amount of money sought was very high and might have very serious consequences for the claimant; there were no factors suggesting that she obviously had the means to pay; and the position of the claimant’s counsel was compromised (by his own position and by how the case had gone) and may explain his failure to have raised arguments as to means.

One instructive feature of the case was the part played in it by EAT panelists who sit regularly at first instance, and who are recorded in the judgment at having expressed their concern that the decision of the Tribunal, which they clearly saw as being out of kilter with the practice generally in the Tribunal.

The case points in other words, both to the positive role often played by panelists, and to the risk of Judges (or even potentially, I suppose, regions) developing practice out of kilter with the Tribunal system as a whole.

(Hat tip to Daniel Barnett)

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Thursday 19th April 2012 at 4:00pm

Costs (Rogers v Dorothy Barley School)

In a recent high-profile case, I acted for a litigant who only became represented mid-way through the litigation. Very unusually, his case involved around 20 Respondents who were separately represented. It was an eye-opening experience to see how differently City solicitors’ firms treated my client, before and after he was represented. Beforehand, he received multiple letters warning him that his case was misconceived, and would invariably results in costs being ordered against him. He was told by Respondents firms who had done nothing more than an ET3 and inter-parties correspondence, that their bills were already in excess of £30,000 or more. On the receript of Notices of Acting, there was a lengthy lull, during which all the Respondents held back on making further costs warnings; several indeed approached the Claimant’s solicitors with proposals for settlement.

I say this by context to the decision of Recorder Luba QC in Rogers v Dorothy Barley School EAT/0013/12, a case concerning a water bill presented to a school caretaker. The caretaker still works for the school, accordingly his claim was for a breach of contract. But save where there has been a dismisasal (which there had not been) the Employment Tribunal has no power to hear breach of contract claims. The appellant’s alternative case, that there had been a deduction of wages, was also hopeless, as there had been no such deduction. Accordingly the case, and the appeal, were misconceived.

Inevitably, the school applied for costs. Recorder Luba declined to order costs, for three main reasons. The claimant was acting in person and was simply not grasping the jurisdictional question that his appeal raises, yet the respondent had not warned him that he was incurring a risk of costs. Second, the Respondent, had not given any notice to Mr Rogers of the extent of the costs it would seek, so he has had no opportunity to assess the amount that was proposed. Third, Recorder Luba took into account the underlying difficulty that gave rise to the proceedings in the first place. It was conceded by the school that the water bills should not have been presented to the claimant for payment. Even if he had no legal remedy before the ET, the underlying fault was the Respondent’s.

I anticipate that this case will be appearing in a number of claimant skeletons in future.

(Hat tip to Daniel Barnett).

(Quick update: Rheian Davies points out that the Law Society has provided guidance to solicitors on not taking unfair advantage of litigants in person)

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