THE INDUSTRIAL TRIBUNALS

CASE REF:	726/06

CLAIMANT:			Mohammed Samaana

RESPONDENT:		Mater Hospital Trust

NOTICE PARTY:		Ms P Drinan, Solicitor, of P Drinan, Solicitors

DECISION
The decision of the tribunal is that:-

(1)	The application of the respondent for a Wasted Costs Order against the Notice Party, Ms P Drinan, is granted; and Ms P Drinan is ordered, on foot of the said Wasted Costs Order, to pay to the respondent the sum of £250.00.

Constitution of Tribunal:
Chairman (sitting alone):		Mr N Drennan QC

Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Ms S Owens, Solicitor, of MSC Daly, Solicitors.
The Notice Party did not appear and was not represented.

Reasons

1.	This costs hearing was arranged on foot of the respondent’s application for a Wasted Costs Order to be made against Ms P Drinan, Solicitor, the claimant’s former representative, pursuant to Rule 48 of the Industrial Tribunals Rules of Procedure 2005.  The respondent’s representative made the application in a letter dated 12 September 2007.  Notice of this hearing, together with a copy of the said application, as set out in the letter dated 12 September 2007, was sent by the tribunal to the Notice Party, Ms P Drinan, Solicitor, 5 – 7 Conway Street, Belfast, BT13  2DE, by letter dated 18 September 2007.

2.	In the letter dated 18 September 2007, the Notice Party was informed that, at the costs hearing, she would have an opportunity to make oral representations as to reasons why such an Order should to be made against her.  She was also informed that if she wished to give written representations as to reasons why such an Order should not be made, rather than make oral representations at the said hearing, she must send any representations to the Secretary of the Tribunals at the Office of the Industrial Tribunals and Fair Employment Tribunal, Long Bridge House,                 20 – 24 Waring Street, Belfast, BT1  2EB, not less than seven days before the hearing and also send a copy of the written representations to the claimant and the respondent’s representative at the same time.  She was also informed that, if she wished the Chairman to have regard to her ability to pay when considering whether to make a Wasted Costs Order or how much that Order should be, she should provide any relevant information to the Chairman at or before the costs hearing.  If this was to be provided before the hearing, she was informed it should be sent to the Secretary of the Tribunals at the above address.  Ms Drinan did not attend this hearing, nor was she represented and further made no response to the tribunal’s letter dated 18 September 2007.  Ms Owens stated that Ms Drinan had not made any contact, either orally or in writing, with her.

3.	The respondent’s application for a Wasted Costs Order, pursuant to Rule 48 of the Industrial Tribunals Rules of Procedure 2005, was set out in the respondent’s representative’s letter dated 12 September 2007.  

In the said letter the respondent’s representative’s stated, inter alia:-

	“ …

As the tribunal is aware, the pre-hearing review scheduled for 13 August 2007 had been arranged on the respondent’s request seeking that the claimant’s application be struck out.  On behalf of the Trust we now set out a brief history of this matter in support of our application for a Wasted Costs Order against Ms Drinan.

•	26 January 2007, we wrote to Ms Drinan’s office setting out our request for particulars and discovery and indeed, draft legal and factual issues.

•	19 February 2007, a reminder was sent to Ms Drinan’s office.

•	6 March 2007, a letter was written to the tribunal to update.

•	20 March 2007, we again wrote to the claimant seeking issues.

•	22 March 2007, neither Mr Samaana or Ms Drinan attended a scheduled CMD and an Order for Discovery and Additional Information was made to be complied with by 4 May 2007.

•	23 April 2007, a letter was forwarded to the claimant regarding the Order for Discovery and seeking same herein.

•	11 May 2007, a letter was written to the tribunal seeking that the matter be struck out.

•	21 May 2007, a Notice was issued on behalf of the tribunal and forwarded to the claimant’s representative.

•	19 July 2007, a letter to Ms Drinan from the tribunal confirming that in absence of a response to the Notice of 21 May, the matter would be listed for strike-out.

•	13 August 2007, pre-hearing review to deal with the strike-out application.  Ms Drinan was in attendance on the morning and indeed our Ms Owens spoke to her regarding the non-compliance of the tribunal Orders.  Ms Drinan indicated that she would be seeking to come off record on behalf of Mr Samaana.  However, when the matter was called, Ms Drinan did not come into the tribunal room and the evidence given by Mr Samaana was that he had relied upon Ms Drinan to comply with the directions of the tribunal and deal with the case generally for him and it appeared that he not had received all relevant correspondence and updates from his solicitor.

We would therefore submit that it is the unreasonable conduct of Ms Drinan that has delayed the progression of this case for some eight months now and due to her mishandling of the case, the pre-hearing review on 13 August effectively could not proceed causing inconvenience and frustration to both the tribunal and our client.  In fact we advise that at no stage of these proceedings has Ms Drinan responded to any of our correspondence.  It is on this basis that we would ask the court for a Wasted Costs Order in the sum of £250.00 against Ms Drinan.”

4.	At this hearing, Ms Owens referred again to the contents of her application, as set out in the letter dated 12 September 2007.  The claimant, who was present, stated that he had nothing further to add to what he had already stated at the previous Case Management Discussion on 13 August 2007, as referred to in Ms Owens’ letter.

5.	Under Rule 48(3) ‘wasted costs’ means any 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 unreasonable to expect that party to pay.

6.	I am satisfied that, in considering whether to make a Wasted Costs Order against the Notice Party, firstly, it is necessary for me to determine whether the Notice Party had acted or omitted to act unreasonably, negligently or improperly.  This required me to consider what was the meaning of ‘unreasonable’, ‘negligent’ or ‘improperly’ as used in Rule 48.  

7.	Rule 48 is based on the wasted costs provisions that apply in the civil courts in Great Britain, with the said definition of wasted costs being identical to that contained in Section 51(7) of the Supreme Court Act 1981 (as substituted by Section 4 of the Courts and Legal Services Act 1990).  This said definition has been considered by the Court of Appeal in England and Wales, in the case of Ridehalgh  v  Horsefield [1994] 3 AER 848.  This case sets out a three-stage test that should be followed when a Wasted Costs Order is to be considered.  Firstly, the court should consider whether the representative acted improperly, unreasonably or negligently.  If so, the next question was whether the representative’s conduct caused the claimant to incur unnecessary costs.  If so, the court should ask the third question; namely is it just to order the representative to compensate the claimant for the whole or part of the relevant costs.  The Court of Appeal in the above case also examined the meaning of ‘improper’, ‘unreasonable’ and ‘negligent’.  ‘Improper’ is stated in the guidance in the Ridehalgh case to cover any significant breach of a substantial duty imposed by a relevant code of professional conduct, as well as conduct which would be improper according to the consensus of professional opinion, whether it violated the letter of a professional code or not.  In view of the terms of the application made by Ms Owens, I consider it is only necessary for me to consider the guidance given in the Ridehalgh case, in relation to the meaning of ‘unreasonable’ and ‘negligent’.

8.	Sir Thomas Bingham, as he then was, stated at Page 861:-

“Unreasonable also means what it has been understood to mean in this context for at least half a century.  The expression aptly describes conduct which is vicarious, designed to harass the other side rather than advance the resolution of the case and it makes no difference if the conduct is the product of excessive zeal and not a proper motive.  But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious representatives would have acted differently.  The acid test is whether the conduct omits of a reasonable explanation.  If so, the course adopted may be regarded as optimistic as reflecting on a practitioner’s judgment, but it is not unreasonable.”

9.	Whilst it might be argued that the conduct of Ms Drinan might not be described as vicarious or designed to harass the other side rather than advance resolution of the case, I think that unreasonable has no special meaning and is little different to the use of the term ‘otherwise unreasonable’ as used in Rule 40, in relation to an Order for Costs against a party.  Indeed, as set out by Sir Thomas Bingham, the acid test is whether the conduct permits of a reasonable explanation.

Before the new definition contained in Section 51(7) of the Supreme Court Act 1981 came into force, by virtue of Section 4 of the Courts and Legal Services Act 1990, the rule in relation to this area of wasted costs was very similar, in the civil courts, both in Northern Ireland and in Great Britain.  In Northern Ireland, under Order 62 Rule 11, where it appears that costs have been improperly or unreasonably incurred, or wasted by lack of competence or expedition, by his solicitor or agent, a court may order the solicitor to reimburse his client for costs payable to another party; reimburse another party for his own costs; and disallows his costs against his own client.  There is no longer any need to show gross dereliction or misconduct; and the purpose of the rule is compensatory rather than punitive.  Apart from Rule 11, the Courts in Northern Ireland have inherent power to order restitution, compensation or costs against a solicitor; but only in a case of serious misconduct or gross negligence or breach of undertaking.  (See Valentine civil proceedings in the Supreme Court, Paragraph 17.61 – 17.63).  In the case of O’Neill (a minor)  v  Nicholson [1995] NIJB 11, Mr Justice Higgins, as he then was, considered the provisions of Order 62, Rule 11 and found that, in the particular facts of the case, that the solicitor had failed to conduct proceedings with reasonable competence and expedition.  In the course of his judgment, Mr Justice Higgins reviewed many of the authorities referred in the Ridehalgh case.  Failure to conduct proceedings with reasonable competence and expedition no longer appears in the new definition, found in the GB legislation, which has used the term ‘negligent’.  However as was pointed out by the then Master of the Rolls in Ridehalgh, the use of the word ‘negligent’, in this context, does not invoke technical concepts of the law of negligence.  He further stated that, by changing the language, Parliament did not, in his view, intend to make it harder, rather than easier, for courts to make orders.  Indeed, he found that ‘negligent’ was to be understood in a non-technical way to denote failure to act with a competence reasonably expected of ordinary members of the profession.

10.	I think there can be little doubt that, in many factual situations, there would be considerable overlap between ‘unreasonable’ and ‘negligent’ conduct.  In the circumstances, therefore, I think that the guidance set out in Ridehalgh is appropriate to be considered in this jurisdiction.  Clearly, the O’Neill decision is a decision on its own facts; but I think it is of interest to note that, in the course of his judgment, Mr Justice Higgins stated:-

“Awarding costs against a solicitor personally is never a matter to be treated lightly and requires a solid basis for the allegation that the solicitor has failed to conduct proceedings with reasonable competence and expedition.”

11.	Having regard to the above decisions, in particular the guidance set out in the Ridehalgh, I am satisfied that, having regard to the circumstances set out by Ms Owens in her application, as set out in the letter dated 12 September 2007, Ms Drinan as the claimant’s representative acted or omitted to act unreasonably and/or negligently.  At the hearing on 13 August 2007, as set out in the Record of Proceedings of that hearing, dated 14 August 2007, the claimant made it clear that he had instructed Ms Drinan in this matter and he did not consider it would be fair if he could not proceed with his claim arising out of any failures on the part of his solicitor to conduct the proceedings in the normal and appropriate way.  Indeed, it was not clear, from what the claimant said to me at that hearing, that any attempt had been made by the claimant’s then solicitor to take the necessary steps and/or obtain the necessary instructions etc from the claimant, in order for the said Orders to be complied with.  The said Orders of the tribunal for Discovery and Additional Information, both dated 3 April 2007, had not been complied with in any way.  The claimant indicated that he had placed reliance upon his solicitor.  In those circumstances, I did not consider that it would be appropriate for me, at that stage, to strike-out the claimant’s claim for failure to comply with the said Orders for Discovery and/or Additional Information, which had not been complied with.  I therefore adjourned the respondent’s application to strike-out the claimant’s claim, on foot of what I had been told by the claimant.  No explanation, save what has been dated by the claimant, has been provided by Ms Drinan for the failure to comply with the said Orders.  

12.	Ms Drinan further failed, in my opinion, to conduct the proceedings, in the circumstances, with the competence and expedition that a tribunal should expect from such a solicitor.    The claimant found himself facing a strike-out application, on 13 August 2007 in relation to a failure to comply with Orders made by the tribunal for additional information and/or discovery in circumstances where his representative had taken no steps, on the evidence before me, to protect his position and in particular to enable him to reply to the said Orders; and had not communicated in any way with the respondent’s representative prior to 13 August 2007 or sought, on his behalf, in the circumstances, any postponement of the hearing.  Ms Drinan attended the tribunal on the day of the hearing; but did not attend the hearing itself and informed the claimant and the respondent’s representative immediately prior to the hearing she was coming off record.  I am satisfied, on the evidence before me, that there is, in the above circumstances, the solid basis, referred to by Higgins J in the O’Neill decision, for such a finding; and that such conduct equates to ‘negligent’, as used in Rule 48 of the Industrial Tribunals Rules of Procedure 2005.

13.	I am satisfied that the respondent therefore incurred the said costs of £250.00 arising out of the attendance of the respondent’s representative at the hearing on 13 August 2007.  The Record of Proceedings of the tribunal on 13 August 2007 was sent to Ms Drinan, together with the respondent’s application, as set out in the letter dated 12 September 2007.  Ms Drinan, who did not appear at this hearing, has made no attempt to contest any of the matters set out above.  I am satisfied, in the circumstances, that the costs incurred by the respondent of the hearing on 13 August 2007, which hearing was unable to proceed and had to be adjourned for the reasons and in the circumstances set out above, were incurred by the respondent by reason of the unreasonable/ negligent acts and/or omissions on the part of Ms Drinan.  

15.	I am satisfied, in the circumstances, it is just to order Ms Drinan to compensate the respondent for the whole of the said costs incurred by the respondent, in relation to the hearing on 13 August 2007, in the sum of £250.00.

16.	I therefore order Ms Drinan, the claimant’s former representative, to pay to the respondent the sum of £250.00 by way of a Wasted Costs Order, pursuant to Rule 48 of the Industrial Tribunals Rules of Procedure 2005.

Chairman:

Date and place of hearing:	12 October 2007, Belfast

Date decision recorded in register and issued to parties and Notice Party: