Monfared v Spire Health Care Ltd, Court of Appeal - United Kingdom Employment Appeal Tribunal, November 16, 2018,  UKEAT 0131_18_1611
|Resolution Date:||November 16, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Monfared v Spire Health Care Ltd|
Appeal No. UKEAT/0131/18/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 23 October 2018
Judgment handed down on 16 November 2018
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
MR S MONFARED APPELLANT
SPIRE HEALTH CARE LIMITED RESPONDENT
Transcript of Proceedings
PRACTICE AND PROCEDURE - Costs
The Employment Appeal Tribunal (``the EAT'') dismissed an appeal against a detailed assessment of costs by the Employment Tribunal (``the ET''). The EAT held that, in the light of the express dispute on that assessment, the ET had not erred in law in its approach and had given adequate reasons for its decision. The EAT decided that, having regard to the terms of the Employment Tribunal Rules of Procedure 2013, and the order for the detailed assessment made by the ET in an earlier decision in the proceedings, the ET was required, on the detailed assessment, to assess the costs of proceedings including the costs of the detailed assessment, and that the ET had rightly rejected, and had given sufficient reasons for rejecting, the contention of the Claimant in the ET that the ET should have adopted some other approach to the assessment.
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THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
This is an appeal from a Judgment of the Employment Tribunal (``the ET'') sitting at East London which was sent to the parties on 29 September 2017. The ET consisted of Employment Judge Foxwell (``the EJ''). The ET, after a detailed assessment, decided that, on the standard basis, the Respondent's costs of the claim brought by the Claimant were £85,143.
On this appeal, the Claimant has been represented by Mr Baker, and the Respondent by Mr O'Dempsey. Both counsel provided the Employment Appeal Tribunal (``the EAT'') with skeleton arguments. I thank them both for their help. Mr O'Dempsey, but not Mr Baker, appeared in the ET. I must record my particular thanks to Mr Baker for arguing this appeal pro bono. The EAT is always very grateful to lawyers who represent Appellants pro bono, and Mr Baker fully deserves that gratitude for his excellent presentation of this appeal.
I will refer to the parties as they were below. Paragraph references are to the ET's Costs Judgment, unless I say otherwise.
The Grounds of Appeal
On the paper sift, His Honour Peter Clark decided that this appeal raised no arguable point of law. After a hearing under Rule 3(10), at which the Claimant had the advantage of being represented by Mr Adkin, acting under the auspices of the ELAAS Scheme, Simler J ordered that there should be a Full Hearing of the appeal on the grounds of appeal for which she gave leave to amend.
There are three such grounds of appeal.
a. The EJ failed to apply a three-staged (or four-staged) assessment to a detailed assessment on the standard basis, in particular in relation to counsel's fees and work done on documents. In relation to each item, the EJ should have:
i. considered whether it was incurred reasonably,
ii. considered whether it was reasonable in amount,
iii. considered whether it was proportionate to the matters in issue and
iv. resolved any doubt in favour of the Claimant.
b. The EJ did not give adequate reasons for his assessment of counsel's fees and of work done on documents; the largest items on the bill. There is no analysis or discussion of counsel's fees at all. The only item of work done on documents on which the EJ comments is the work done on witness statements.
c. The EJ gave inadequate reasons and/or failed to deal with the Claimant's submission that the Respondent had increased the value of the costs schedule.
The ET's Decision after the Substantive Hearing
In a Judgment sent to the parties on 9 August 2016, the ET dismissed the Claimant's claims that he had been the subject of detriment for making protected disclosures, and that he had been discriminated against on the grounds of his race or on the grounds of his religion or belief. The ET held that the Claimant had been unfairly dismissed.
In paragraph 1 of its Judgment the ET said that it already had a thick file and ``a lengthy history to where we have got today''. The ET recorded, in paragraph 27.7, when considering the Claimant's application for an adjournment of the hearing, the Respondent's submission that its costs so far included counsel's fees of £12,500 for the Substantive Hearing and that its solicitors' costs to date were £54,000. In paragraph 41.8, the ET observed that the resources which the ET had devoted to the claim were ``exceptionally high''. There had been four Preliminary Hearings and, instead of being listed for an hour or two, one had been listed for a day, and one for two days.
The ET's Remedy Judgment
In a Judgment sent to the parties on 22 February 2017, the ET refused the Claimant's applications for reinstatement or re-engagement. The Respondent was ordered to pay the Claimant £4,176 compensation for unfair dismissal. The Claimant was ordered to pay the Respondent ``one quarter of the costs of the Respondent, to be determined by way of detailed assessment''.
The ET had given the Claimant time to digest the documents supporting the Respondent's application for costs as the Claimant felt unprepared (paragraph 101). The ET had written and oral submissions from the Respondent. The Respondent relied on a continual pattern of behaviour of not complying with ET Orders for no good reason, the Claimant's repeated and unsuccessful attempts to delay the case for spurious reasons, and the fact that, at the heart of his case, there were deliberate lies which had subjected the Respondent and its witnesses to a very long process of litigation, as allegations such as his could only be dealt with by considering the evidence. The Claimant had brought some of his allegations vexatiously. He had made unfounded allegations against Mr Calver. He had been made a settlement offer of £5,000 in March 2016. He had made no counter-offer. He had acted unreasonably in various ways during the proceedings. He had made baseless allegations that the Respondent had intimidated witnesses. He had failed to comply with many procedural Orders. The Claimant had not provided proper evidence about his means.
The test for whether costs should be ordered was the same whether or not a litigant was represented, but in applying the test, the ET should take into account that the Claimant was a litigant in person (paragraph 113).
The ET took into account the Claimant's limited success in the litigation (paragraph 123). He had a reasonably arguable case that his dismissal was substantively unfair and that his dismissal was an unlawful act of victimisation (paragraphs 124 and 125). The ET took into account that the Claimant was a litigant in person, albeit that these were not his first proceedings (paragraph 126). The ET did not hold him to the same standards as a professional person. The ET took into account that the Respondent had made many unsuccessful applications which extended the time of Preliminary Hearings and the Substantive Hearing (paragraph 127). Part of the Respondent's bill included such costs. The ET referred to the amounts claimed in paragraph 128.
The ET did not consider that the Claimant was unreasonable to reject the offer of settlement (paragraph 129). The Claimant was entitled to a Remedy Hearing. He was not unreasonable to seek reinstatement or re-engagement (paragraph 130). Nevertheless, the ET held that the Claimant's conduct of the proceedings was unreasonable (paragraph 132) in the three respects which the ET went on to describe in paragraphs 132 to 143. The ET said, in paragraph 143, that they were an experienced Tribunal, and accustomed to adjudicating factual disputes. ``Where the Claimant went beyond what one might reasonably expect in litigation was in the gross exaggerations and making allegations in bad faith or to disrupt investigations of complaints made against him and complaints made by him''.
It was appropriate to make a Costs Order. The Claimant had acted unreasonably ``in an extensive number of respects'', as the ET had described. There should be consequences. The Respondent had had to incur ``extensive additional costs'' (paragraph 146). The ET was not able to give an exact estimate of how much the Respondent's ``reasonable legal costs would have been had the Claimant not acted unreasonably in the ways we have described'' (paragraph 148). The ET gave examples of how the Respondent's preparations and the length of the hearing would have been shorter if the Claimant had not behaved unreasonably (paragraphs 149 to 151). The ET expressly took into account, in deciding whether the Claimant's conduct was unreasonable, that he was a litigant in person (ibid).
In paragraph 157 the ET said that taking all the factors into account, it had considered whether to order the Claimant to pay a ``flat sum'', or a proportion of the Respondent's costs, to be decided by way of detailed assessment. A fixed sum had some attractions, especially given the length of the proceedings, but it would be difficult to do. The ET had not done a detailed assessment of the Respondent's costs. It seemed unlikely to the ET that costs on a standard basis would amount to the costs claimed by the Respondent, or a figure close to it; but the ET was not in position to make that assessment and had not heard submissions about it. If the Respondent's costs were assessed at £50,000 rather than £90,000, that would produce a very different outcome. The ET therefore decided to award a proportion of the Respondent's costs.
The Respondent's Bill of Costs
The Respondent's bill of costs was drawn up by a costs draftsman. It is 24 pages long. It includes the costs of drawing up the bill itself. It consists of a narrative...
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