THE INDUSTRIAL TRIBUNALS

CASE REF:  2361/14  

CLAIMANT:		Collette Corr	

RESPONDENT:	1. Darren Irwin & Sharon Irwin t/a Carryduff Dental Practice
			2. Sharon Irwin	

Certificate of Correction

In this decision issued to parties on 8th December 2015;

1.	The title of the proceedings should also refer to Sharon Irwin as the 2nd named respondent,

2.	The first paragraph of the decision should refer to the first named respondent and not the respondent and

3.	In paragraph 29 of the decision the “first named respondent” is substituted as “the respondent”.

Employment Judge: ____________________________________________

Date: ______________________________		

This decision was registered and issued to the parties on:

____________________________
for Secretary of the Tribunals

THE INDUSTRIAL TRIBUNALS

CASE REF:	2361/14

CLAIMANT:			Collette Corr

RESPONDENTS:	Darren Irwin & Sharon Irwin (a bankrupt) t/a Carryduff Dental Practice

DECISION ON COSTS
The unanimous decision of the tribunal is that the claimant shall pay to the respondent a sum of £2,500.00 in respect of costs.

Constitution of Tribunal:
Employment Judge:	Employment Judge McCaffrey	
Members:			Mr A Burnside
				Mr I Foster

Appearances:
The claimant appeared in person and represented herself.
The first named respondent was represented by Mr A Sands, Barrister-at-Law, instructed by John Ross and Sons Solicitors LLP.  
The second named respondent was not represented and did not attend.
BACKGROUND 
1.	This matter was listed for a hearing in relation to costs on the application of the respondent.  It followed a decision issued by the tribunal on 17 August 2015 following a hearing which had lasted for five days in June 2015.  Following that hearing the tribunal dismissed all the claims brought by the claimant, specifically the claimant’s claims of having made protected public interest disclosures and having suffered detriment as a result, her claim of unfair dismissal as a result of having made public interest disclosures and her claim for failure to provide written terms and conditions of employment were all dismissed.  It should be noted that the claim of having failed to provide written terms and conditions of employment would have been determined in the claimant’s favour, but no award could be made to her under Article 27 of the Employment (Northern Ireland) Order 2003.

SUBMISSIONS

2.	The respondent’s representative applied for costs against the claimant following the hearing by letter dated 7 September 2015.  That letter included the following paragraphs:-

	“On our instructions and having perused the decision we respectfully submit and apply to the industrial tribunal for an order for costs against the claimant for the respondent’s legal costs in the sum of £10,000.00.  Please note the respondent’s legal costs are well in excess for the sum of £10,000.00.  However we understand costs are limited to this figure.

	Our application is based on Schedule 1 Rule  40 of the 2005 rules, in that we submit the claimant in bringing the proceedings and in conducting the proceedings acted vexatiously, abusively and unreasonably and that the proceedings themselves were misconceived.

	It is noted that in paragraph 2 of the judgment the tribunal refers to a number of personal matters which the claimant raised against the respondent during the hearing including a number of text messages.  They were not relevant to the case but were still open to a public tribunal.

	In addition in paragraph 5 of the judgment the claimant’s behaviour in attempting to falsify a document for the benefit for her claim is considered by the tribunal.  The claimant’s conduct of proceedings is considered again in paragraphs 5, 6, 7 and 8 of the judgment, in relation to the unorthodox and misconceived aspects of the claimant’s case in her conduct of the proceedings wherein she specifically denied matters had taken place and then subsequently admitted that they did indeed take place.  The claimant’s credibility was damaged in the hearing of this matter and it is also on this basis we argue that the entire claim was misconceived.  

	In addition the respondent wrote to the claimant on a without prejudice basis, save as to costs, with a Calderbank offer in settlement of this matter.  This was rejected by the claimant and in addition, a number of offers to settle the case were made to her legal representatives at an early stage.  All offers were made on an economic basis and the claimant unreasonably rejected these offers and the effect of the Calderbank offer is now one which we wish to bring before the industrial tribunals in relation to the respondent’s costs of these proceedings.”

3.	The respondent’s representative also referred to a costs warning letter which had been sent to the claimant by the respondent’s solicitor on 5 June 2015 shortly before the hearing.  That letter set out the respondent’s reservations in relation to the claimant’s case and asserted that the respondent would successfully defend the proceedings.  The letter indicated that if the claimant failed to achieve an award in excess of four weeks’ wages plus interest in respect of the respondent’s failure to provide her with written terms and conditions of employment that they were instructed to pursue the claimant for legal costs.  The letter concluded:-

	“We can advise that we are prepared to take instructions from our client on his not pursuing you for costs should you agree by 5.00 pm on Monday 8 June not to proceed with the whistleblowing and unfair dismissal cases.  Should you proceed with those aspects of your claim and should the respondents successfully defend those, please note we are instructed to pursue you for the respondents’ legal costs for defending those cases which we can advise would be well in excess of £10,000.00.”

4.	The claimant in her written submissions to the tribunal and orally indicated that she did not agree that she had conducted the proceedings in any way unreasonably.  She referred to comments made by the respondent regarding a document which the claimant had included in the bundle of documents.  She had represented this as being an example of an assessment form from the RQIA, whereas in fact the document had in fact been downloaded from the internet by the claimant, filled out by her and then amalgamated with part of a document previously completed by the respondent so that the entire document appeared to be a document completed and signed by the respondent in 2011.  The claimant at this hearing again asserted what she had said at the tribunal, she had intended to explain about this at the tribunal but there was no explanation offered by her in advance of her being cross-examined on the issue.  

5.	The tribunal had criticised the claimant in relation to her disclosure of personal text messages sent to her by both respondents and her attempts to include these as part of her evidence at the tribunal even though they were not relevant to the issues before the tribunal.  Much of the claimant’s submission at this hearing was an attempt to justify the way that she conducted herself at the hearing.  She did not either appear to accept the tribunal’s decision or the concerns which the tribunal had in relation to her good faith.  Part of her submission sets out the following:-

	“I believe my concerns to be serious and made honestly and for that reason I believed I would be protected.  I had known and cared for the patients in the practice for 17 years.  I realised the tribunal’s decision went against me but I feel the patients are aware of my good character and dedication to them and regardless of the decision will know that I acted in their best interests.  At this stage in my life to be dismissed after 18 years for gross misconduct was distressing.”

6.	The claimant also asserted that she had not been made aware that there was an issue of good faith to defend at the hearing, although this had been discussed at Case Management Discussions in advance of the hearing.

7.	In relation to the question of the Calderbank letter, the claimant stated the following:-

	“In regards to the communication received from the respondent relating to a without prejudice basis, save as to costs, with a Calderbank offer – I understood this communication to be nothing more than a threat to withdraw my case or the respondent would pursue with costs because I had no representation.  I would like to refer to ECWA (2004) Rodrigo Patrick Lodwick v London Borough of Southwark where it states a claimant should not be intimidated out of running a legitimate case and having her evidence tested in a formal setting for fear of costs.  There was no attempt to negotiate or no firm offer of a settlement figure.  There were two offers made in the early stages but my request for a reference was declined.”

8.	It is relevant however to note that the claimant had the benefit of legal advice in the early stages of her case and indeed had the benefit of advice from solicitor and counsel until early March 2015.  The day after she was advised that her legal representative was no longer representing her, the claimant had a letter from the respondents by email requiring replies to a request for Additional Information and Discovery by close of business on 6 March, otherwise an Order would be sought from the tribunal to compel discovery and replies, and an application would be made for costs of that application.  The claimant stated in submissions that when she received the letter in June regarding costs she assumed that this was another threat but that because she had a good case, she ignored the costs letter.  The claimant also objected to the respondent’s representative having made reference during the hearing to the negotiations to settle the case, and suggested this had influenced the tribunal.  We can clearly state that any mention of pre-trial negotiations was entirely discounted by the tribunal and played no part whatsoever in our findings in this case.  

9.	Mr Sands also drew our attention to the fact that the claimant had (for the first time) lodged a complaint with the General Dental Council on 18 August 2015 the day after the tribunal had issued its decision.  Mr Sands suggested that this was evidence of how the claimant continued in a course of conduct of maliciousness and spite towards the respondent.  The claimant in her oral submissions indicated that she did not agree she had been acting maliciously in making her complaint to the General Dental Council.  She indicated that when she heard the evidence given at tribunal, she felt she had to speak to the General Dental Council and did so because she felt it was her duty to do so rather than ignore it.  We made it clear to the parties that any conduct by the claimant after the close of proceedings is not relevant in relation to any decision to award costs in respect of the bringing or conducting of proceedings.  We note, however that the claimant’s demeanour throughout this costs hearing was that she had been justified in bringing her claim, had a good case and she only acknowledged in passing that the tribunal had dismissed all her claims, criticised her good faith and made a number of negative comments about the way she conducted herself in general throughout the hearing.  

RELEVANT LAW

10.	The tribunal’s power to award legal costs is set out in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Rules”).  The general power to make a Costs Order is set out in Schedule 1 at Rule 38.  We were specifically referred to the provisions of Rule 40, the relevant parts of which state as follows:-

		“(2)	A tribunal or [employment judge] shall consider making a costs order against a paying party where, in the opinion of the tribunal or [employment judge] (as the case may be), any of the circumstances in paragraph (3) apply.  Having so considered, the tribunal or [employment judge] may make a costs order against the paying party if it or he considers it appropriate to do so.

		(3)	The circumstances referred to in paragraph (2) above are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived”.  

	“Misconceived” is defined at regulation 2 as including “no reasonable prospect of success”.

11.	The tribunal’s jurisdiction in relation to costs is outlined in Harvey on Industrial Relations and Employment Law Division P1 (Practice and Procedure) at paragraph 1044 and following.  Harvey emphasises that, despite changes which have extended the tribunal’s powers to make orders for costs considerably, the fundamental principle remains that costs are the exception rather than the rule and that costs do not automatically follow the event in Employment Tribunals (McPherson v BNP Paribas (London Branch) [2004] EWCA Civ 569 at paragraph 2; and Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 at paragraph 7).  

12.	It is also important to note that tribunals must apply a two stage test to an application for costs.  First of all, they must consider whether the relevant party’s behaviour falls within Rule 40(3) or Rule 35 as the case may be.  Secondly, they must consider whether it is an appropriate case in which they should exercise their decision to make a costs order.

Misconceived Claims

13.	It is clear from considering the case law that the test to be applied in deciding whether or not to make an award of costs is more than a simple objective assessment of whether the claimant knew or ought to have known that his or her claim lacked substance or merit.  The tribunal must look not just at the proceedings themselves but also at the claimant’s conduct in bringing or conducting the proceedings.  The type of conduct which would be considered unreasonable by a tribunal would obviously depend on the facts of the individual case; there is no hard and fast principle applicable to every situation (Harvey, paragraph 1083).  In Cartiers Superfoods Ltd v Laws 1978 IRLR 315 Phillips J considered it was necessary “to look and see what the party knew or ought to have known if he had gone about the matter sensibly”.  In particular, if there was nothing in the evidence to support the allegations being made, this will involve an assessment of the reasonableness of bringing the proceedings, including a consideration of the question of whether a claimant ought to have known that there was no such important material.

Unreasonable Conduct

14.	Harvey (see paragraph 1064), indicates that “unreasonable” conduct includes conduct that is vexatious, abusive or disruptive.  The discretion of the tribunal is not fettered by any requirement to link the award causally to the particular cost which had been incurred as a result of specific conduct which has been identified as unreasonable.  In McPherson, Mummery LJ stated:-

	“The principle of relevance means the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring [the receiving party] to prove that specific unreasonable conduct by [the paying party] caused particular cost to be incurred.”

15.	Subsequently in Yerraklava, he stressed that this passage in McPherson was not intended to be interpreted as meaning either that questions of causation are to be disregarded or that tribunals must dissect the case in detail and compartmentalised conduct.  As he observed:

	“The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so to identify the conduct, what was unreasonable about it and what effects it had.”

16.	He also observed that:

	“a costs decision in one case will not in most cases predetermine the outcome of a costs application in another case: the factors of the case will be different, as will be the interaction of the relevant factors with one another and the varying weight to be attached to them”.

17.	It is also relevant to consider the fact that the claimant is not legally qualified and was not legally represented at the hearing.  In the case of AQ Ltd v Holden [UKEAT/0021/12] in the Employment Appeal Tribunal, his Honour Judge Richardson stated:

	“Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life ...  Lay people are likely to lack the objectivity in knowledge of law and practice brought by a professional legal adviser.  Tribunals must bear this in mind when assessing the threshold test in Rule 40(2).  Further even if the threshold tests for an order for costs is met, the tribunal has discretion whether to make an order.  This discretion will be exercised having regard to all the circumstances.  It is not irrelevant that a lay person may have brought proceedings without access to specialist help and advice.  That is not to say that lay people are exempt from an order for costs; far from it as the case has been made clear.  Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity ...”

18.	Harvey emphasises that when considering whether costs should be awarded on the grounds of unreasonable conduct, it is the conduct of a party in bringing or defending a claim, or in continuing to pursue the claim or defence, that can give rise to an award and not conduct occurring before the institution of proceedings (see paragraph 1066).  

	In this case the respondent had applied for costs on the basis that the claimant had acted unreasonably in the bringing of the proceedings and further that the proceedings had been misconceived. 

The Means of the Claimant

19.	The case of Jilley v Birmingham and Solihull Mental Health NHS Trust [UKEAT/0584/06] emphasises the importance of taking account of a claimant’s means, although lack of means to pay is not a barrier to a costs order being made.  The judgment states as follows:-

	“53.  The first question is whether they should take the ability to pay into account.  The tribunal has no absolute duty to do so.  As we have seen if it does not do so, a County Court may do so at a later stage.  In many cases it will be desirable to take means into account before making an order; ability to pay may affect the exercise of an overall discretion, and this course will encourage finality and may avoid lengthy enforcement proceedings.  But there may be cases where for good reason ability to pay should not be taken into account; for example, if a paying party has not attended or has given unsatisfactory evidence about means.”

20.	The claimant’s means may be taken into account but if they are, the parties whole means must be considered.  This includes capital and savings as well as income (see the Scottish EAT case of Sheiles Automotive v Greig UK EAT/0024/10).

REASONS AND DECISION

21.	We must consider first of all whether we are satisfied that the claimant’s claims were misconceived as argued by the respondent or whether she acted unreasonably in bringing and pursuing her claim.  It is only then that we turned to the question of whether or not we consider it appropriate to make a costs order in this case.

22.	As set out at paragraph 12 above, a claim will be misconceived if it includes no reasonable prospect of success.  This is a case where the claimant alleged that she had been unfairly dismissed on grounds of having made protected disclosures under the whistleblowing legislation and also alleged that she had suffered detriment as a result of having made the protected disclosures.  Without rehearsing the entirety of the tribunal’s lengthy decision, it is fair to say that one of the fundamental flaws in her case was that she had not made the alleged disclosures in good faith.  We set out in our decision at paragraphs 99-104 the reasons why we did not consider that the claimant had acted in good faith.  We noted, for example, that we had concerns about whether the claimant was genuinely motivated by concerns about patient safety and well-being and that she did not have a clear understanding of the boundaries of her role as a dental nurse and receptionist.  We found also that the claimant had behaved in an underhand way in that she kept text messages sent to her on a personal basis by her employers during their marriage breakup and then emailed these to herself so that she would “have them available”.  She had not respected the privacy or confidentiality of her colleagues and yet complained that her confidentiality had not been respected.  We also noted that although she had said that she had made regular contact with the General Dental Council and public concern at work, the claimant had not made a public interest disclosure to either body at any time either before or after she was suspended from work.  She had failed to raise any concerns with the RQIA during an inspection at the respondents’ practice either.  We summarised the position by saying that we had come to the view that the claimant did not have patient welfare as a priority, rather that her main concern was the ongoing deterioration of her relationship with her employer and how she could undermine him and her colleagues (see paragraph 103 of the decision).  We also noted that the claimant had little or no insight into how her aggressive and overbearing manner and her actions towards the respondent and her colleagues undermined trust between colleagues.

23.	Having heard this case in its entirety, we find that the claim was misconceived.  The claimant raised issues as protected disclosures which did not stand up to scrutiny.  The claimant asserted for example that a number of practices within the respondents’ practice endangered patients’ safety and welfare.  On further scrutiny it was our finding that the claimant did not have a reasonable belief that some of these matters were likely to endanger patients’ safety.  We did make a finding that there had been a breach of a legal obligation in relation to the reuse of endontic files when the claimant first raised the issue in January and February 2013 but we also accepted the respondents’ evidence the practice changed to single use of endontic files after the RQIA inspection on 13 March 2013 and there was no evidence to the contrary.  We also accepted that by the time the claimant raised the issue again on 11 April the practice had changed, the claimant knew it had changed and she had no reasonable belief that it was an ongoing breach of a legal obligation.  As we have already set out above, the claimant’s case in relation to whistleblowing was also fatally flawed by her lack of good faith.

24.	As far as the claimant’s unfair dismissal claim was concerned, she conceded at the hearing that she had behaved in general terms as the respondent alleged that is to say she had shouted at the respondent in his surgery that the practice would be closed down for illegal practices and these comments were overheard by a female doctor patient.  We set out in our decision that we had no doubt that such behaviour constituted misconduct likely to bring the practice into disrepute and was gross misconduct.  While the claimant referred to procedural deficiencies, our decision noted that even if the LRA standard disciplinary procedures had been followed to the letter, we considered that the claimant would still have been dismissed.  In our view therefore her claims were misconceived.

25.	In relation to whether or not the claimant behaved unreasonably in bringing or conducting proceedings, we are of the view that her behaviour was unreasonable.  We have set out above some of the ways in which the claimant behaved: falsifying  documents and failing to clarify the position to the tribunal, producing personal texts which were totally irrelevant to the issues in the claim before us and making sweeping and generalised assertions of misconduct against some of her colleagues.  At one point, the claimant alleged that she was afraid of the respondent without having any real grounds for making this assertion.  We also note that even at the costs hearing, claimants did not in any way acknowledge that she had been misguided in bringing her claim, but asserted that she had done it for the right reasons.  It seems to us that the claimant has not acknowledged the reality of the situation, namely that she lost her case.

26.	We also note that the claimant had the benefit of legal advice in the early stages of her claim.  So although the claimant represented herself at the hearing and cannot be expected to present a case with the expertise of a professional lawyer, it is fair to consider that she had some guidance on the strengths and witnesses of her claim.

27.	The next issue for us to consider is whether it is appropriate in all the circumstances to make an award of costs.  We are aware that the claimant is not working at present and is in receipt of employment support allowance of approximately £400 per month.  She and her husband still have a mortgage on their home and all the usual household outgoings.  The claimant advised us at hearing that while her husband is working and his salary substantially maintains the household, his work situation is uncertain.  She indicated that she and her husband have very modest savings and are owed approximately £1,000.00 by Mrs Irwin the second respondent.  Their home has an equity of approximately £40,000.00 after repayment of the mortgage.  We saw no independent valuation or mortgage statements to substantiate this.

28.	The respondent on the other hand has indicated that he has substantial legal fees in excess of £10,000.00.  We are also conscious that the respondent had to prepare to defend a misconceived claim, attend the hearing over a period of five days and that a number of his staff also attended to give evidence which obviously had implications for the running of his practice.  

29.	We do not consider that it would be appropriate to make a large award of costs in relation to this matter.  We are concerned however at the claimant’s expressed views that she was still justified in bringing her claim and that she had done it for the right reasons, which seems to us to ignore the tribunal’s findings in relation to her claim.  We had considered this matter carefully and take the view that it would be appropriate to order the claimant to pay to the respondent the sum of £2,500.00 in respect of costs.  While we appreciate that this falls short of the full amount the respondent has expended, we are taking account of the claimant’s limited means in making this award.  The claimant is therefore ordered to pay to the respondent the sum of £2,500.00 in respect of costs.

Employment Judge:

Date and place of hearing:    26 November 2015, Belfast.

Date decision recorded in register and issued to parties: