Case No: 1401745/2012

EMPLOYMENT TRIBUNALS

Claimant: Mr D I Gardiner

Respondent: Exsto UK Ltd & Others

Heard at: Bristol On: 21st February 2014

Before: Employment Judge Harper

Representation Claimant: In person Respondent: Mr Clowery — Consultant

JUDGMENT having been sent to the parties on 24 th February 2014 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

1. This is the Claimant's application for a wasted costs order against the Respondents' representative, Peninsula Business Services Ltd, in respect of the withdrawal by the Respondent of its application for a preparation time order against the Claimant.

AGREED

2. The Respondent's application for a preparation time order was listed to be heard on Monday 10th June 2013. On 5th June 2013, the Respondents' representative wrote by email to the Claimant and the Tribunal withdrawing its application for a preparation time order against the Claimant and asking for the hearing to be cancelled.

AGREED

3. The Claimant and the Respondents' representative were advised by return email from the Tribunal that the hearing was cancelled upon the application being withdrawn. That action prompted the Claimant to request reasons for the Respondent's decision to withdraw its application. AGREED

Case No: 1401745/2012

4. There is no obligation for a party to state its reasons for withdrawing its application for a preparation time order, and none were provided. An explanation for the withdrawal has been provided today, which I will deal with in due course in my conclusions.-

DISAGREE: THERE MAY BE NO OBLIGATION TO GIVE WRITTEN REASONS AS IS THE CASE WITH ANY COURT JUDGMNET OR DECISION.

HOWEVER NO REASONS AFTER REPEATED REQUESTS = UNREASONABLE & NEGLIGENT (SHARP PRACTICE)

5. The withdrawal of the application for a preparation time order prompted the

Claimant to make an application for a wasted costs order against the Respondents' representative, on the basis of him having spent considerable time preparing for application, including providing information AGREED and correspondence in relation to his financial circumstances. He was pleading inability to pay any award due to his financial circumstances.

6. An application for a wasted costs order is made pursuant to Rule 80 of the

Employment Tribunal's 2013 Rules of Procedure. Rule 80(1) provides:- A Tribunal may make a wasted costs order against a representative in favour of an party ("the receiving party") where that party has incurred costs—

(a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as "wasted costs".

AGREED

7. The settled case law is setout in the case of Ridehalgh v Horsefield [1994] 3 All ER 848. The Court of Appeal setout a three stage test that should be followed when a wasted costs order is being considered. First, the court should consider whether the representative acted improperly, unreasonably or negligently. Secondly, if so, the next question is whether the representative's conduct caused the Claimant to incur unnecessary costs? Thirdly, if so, the court should ask whether it is just to ask the representative to compensate the Claimant for the whole or part of the relevant costs. That is the case law that binds me in determining the application today. AGREE

8. Today I have heard representation from Mr Clowery, Consultant at Peninsula. On behalf of Peninsula he contests the Claimant's application. He contends that there is no act by Peninsula which amounts to negligent, improper or unreasonable conduct, which engages the first stage of the test. AGREE

Case No: 1401745/2012

9. The Claimant has attended today and wished to rely on his written

submissions of 1313th 19th , 1 26th June and 14th August 2013. Some of those submissions contain matters irrelevant to the matter before me. I have asked the Claimant what he considers to be the negligent, improper or unreasonable conduct to be in relation to the late withdrawal of the Respondent's application for a preparation time order. His position is that the Respondent's representative should not have withdrawn the application because the Claimant had prepared for the hearing on 10 th June, and that it should have gone ahead and that to withdraw it was an abuse of process.

AGREED

10. Before setting out my findings in relation to the reason for the withdrawal of the Respondent's application for a preparation time order, I will setout the background to the original application.

11. In 2011, the Claimant presented a claim in the Bristol Employment

Tribunal against his former employer and three named individuals. His complaints included unfair dismissal, disability discrimination and race discrimination. He also brought money related claims. That case was heard in September 2011 and dismissed.

12. The Claimant was dissatisf ied with the outcome and appealed the

' judgment. The Claimant exhausted the appeal process and was not successful.

AGREE –THE LEGAL TESTS ARE IMPOSSIBLE AND UNFAIR AND AN INFRINGMENT OF HUMAN RIGHTS

13. In response to that lack of success, in September 2012 he brought four claims in the Bristol Tribunal, and one in the Aberdeen Tribunal. All claims were consolidated. Those claims were an attempt to re-litigate the 2011 case. He relied on the same facts and circumstances. I dismissed all 5 claims by a judgment in January 2013, pursuant to Rule 18 of the Employment Tribunal 2004 Rules on the grounds that the claims were res judicata, and therefore he was stopped from pursuing the 2012 claims. AGREE

I found that it was unreasonable and vexatious conduct to pursue those claims.

DISAGREE THE CONDUCT OF THE CLAIMANT WAS NAIVE AND OPTIMISTIC. NO MORE. THE JUDGE APPLIED THE RULES OF CAPABLE LEGAL REPRESENTATIVES TO AN INCAPABLE PARTY (Please refer to document “PREPARATION TIME ORDER AND WASTED COST ORDER para’ 7-11)

Case No: 1401745/2012

14. The Claimant did not attend the hearing in January 2013. The Respondent at the hearing, after I announced my judgment, made an application for a preparation time order against the Claimant. I did not consider it at that stage because no schedule of time spent had been prepared. I indicated that if the Respondent wished to pursue its application, it should do so pursuant to the then Rule 40(5) of the 2004 Rules with a schedule in support. The Respondent made its application accordingly, and the listing of that application was directed. The 10th June 2013 allocated to hear the Respondent's application.

AGREED 15. So far as the lead up to that date is concerned, these are the relevant

matters. There was correspondence between the parties in respect of the Respondent's application for a preparation time order. In April and May 2013, the Claimant submitted to the Respondent's representative and the Tribunal that he was unable to pay any award. At one stage, namely on 18 th April 2013 by email, he offered to pay the Respondent £0.01 in respect of preparation time incurred. AGREED

16. Mr Clowery has explained today why the Respondent withdrew its application for a preparation time order when it did. That explanation is as follows. In late May, early June 2013, the Claimant provided copy documents which indicated he was in receipt of disability benefit and that his financial means were very limited. Mr Clowery advised his clients that in those circumstances it was unlikely that the Respondent's application for a preparation time order would succeed, and therefore it would be appropriate to withdraw the application and thus save further time and costs on the case. AGREED

17. That strikes me as a pragmatic and sensible course of action. AGREED WELL DONE!!! When instructions were received from his clients to do so, he advised the Claimant and the Tribunal immediately. I find nothing untoward in that conduct. As I say, it was sensible and pragmatic, and ultimately would have saved time and costs for the Respondent's application for a preparation time order to be withdrawn. There was no need to give the Claimant or the Tribunal reasons for withdrawing the application.

DISAGREE. THE CLAIMANT IN PREPARATION FOR THE COSTS HEARING HAD CONDUCTED MANY HOURS OF RESEARCH IN PREPARATION. WITHOUT THIS “WASTED TIME” THE HEARING WOULD HAVE GONE AHEAD. THE REPRESENTATIVES KNEW THIS BUT ONCE THEY WERE AWARE OF THE CLAIMANTS KNOWLEDGE AND RESEARCH THEY ADVISED THEIR CLIENTS OF THE CORRECT COURSE OF ACTION.

Case No: 1401745/2012

18. I reject the Claimant's contention that, having made an application for a preparation time order, the Respondent was bound to pursue it. His criticism is unwarranted. DISAGREE He provided some proof of his financial situation, and the Respondent and its representative reacted to that information appropriately and promptly. DISAGREE THEY SHOULD HAVE PROVIDED REASONS PROMPTLY TO THE CLAIMANT AS REQUESTED NOT 8 MONTHS LATER WHEN PRESSED BY A JUDGE It had the effect which the Claimant sought, namely the abandonment of the application for a preparation time order. Indeed, the Claimant seemed to acknowledge that, as in a document dated 6 th June 2013, which is entitled 'Call for a case review', he says:-

"Dear Sir/Madam, I thank you for your letter cancelling the hearing for costs."

It offers a smattering of relief that the Respondents had conceded on this point.

DISAGREE. THEY SHOULD NOT HAVE PERSUED THE WASTED COST APPLICATION IN THE FIRST PLACE. THEY KNEW OF THE CLAIMANTS LIMITED RESOURSES SINCE HIS CONSTRUCTIVE DISSMISSAL IN 2010 THEY USED THE COSTS HEARING AS LEVERAGE ENCOURAGING THE CLAIMANT ABONDON AN APPEAL TO THE EAT THAT WAS THREATENING IMPROPER BEHAVIOUR THIS IS WHY IT WAS A RELIEF.

I find these to be the relevant facts.

DISAGREE THE JUDGE HAS NOT PAID DUE ATTENTION TO THE DOCUMENT “PREPARATION TIME ORDER AND WASTED COST ORDER” GIVING NO ATTENTION TO THE FACTS AS PRESENTED THIS IS UNFAIR.

19. Turning now to the questions that I must ask myself. The first question is whether there was any conduct of the Respondent's representative that amounted to unreasonable, negligent or improper conduct.

20. I refer to the facts that I have found. I have found that there was no unreasonable, negligent or improper conduct by the Respondent's representative in withdrawing the application for a preparation time order when it did. The Respondent's representative acted sensibly and pragmatically when it received documentary evidence in support of the Claimant's contention that he was unable to pay any award due to his financial circumstances. In those circumstances I conclude that the first stage in the tests set out in the guidance in Ridehalgh v Horse field is not fulfilled. There are therefore no grounds for making a wasted costs order against the Respondent's representative, and I dismiss the Claimant's application.

10.8 Reasons — rule 62(3)

PREPARATION TIME ORDER AND WASTED COST ORDER

Page 1 of 9

Gardiner v Exsto UK & ORS

From the authority on wasted cost Ridehalgh v Horsefield & Anor [1994]EWCA Civ 40 (appendix A)

“The three-stage test when a wasted cost order is contemplated:

(1) Has the legal representative of whom complaint is made actedunreasonably?

(2) If so, did such conduct cause the applicant to incur unnecessary cost?

(3) If so, is it in all the circumstances just to order the legal representative tocompensate the applicant for the whole or any part of the relevant cost?

In order to assist the tribunal in the application for wasted and other cost it isascertained that the applicable rules of “The Employment Tribunals(Constitution and Rules of Procedure) Regulations 2013” and their applicationare as follows.

1) Definitions - Rule 74 i) Case summary and the application of Rule 74 2) When a cost order or a preparation time order may or shall be made -

Rule 76 ii) Case summary and the application of rule 763) The amount of a preparation time order - rule 79 & 754) When a wasted cost order may be made - rule 80 iii) Case summary and the application of - rules 75, 79 & 805) Effect of a wasted cost order - rule 81 6) Procedure – rule 827) Clean hands8) The Public interest 9) Pursuing a hopeless case10) The acid test11) Indisputable fact

PREPARATION TIME ORDER AND WASTED COST ORDER

Page 2 of 9

1) Definitions

74(1) “Cost” means fees, charges, disbursements or expenses incurred by or onbehalf of the receiving party.

74(2) “Legally represented” means having the assistance of a person …who—

(a) has a right of audience …. of proceedings in ….Senior Courts ofEngland and Wales, or….. county or magistrates’ courts;

i) Case summary and the application of Rule 74

Gardiner “receiving party”claimant

V1) Exsto UK & Ors2) Peninsula Business Services (representative)(Outsourced suppliers of human resource and healthsafety at work and legal services)

“paying party”respondent

“The case” as listed

1. Case 1400500/20112. Case UKEATPA/1798/11/JOJ3. Cases1401745, 1401756, 1401811, 1401812, 4109312/20124. Case A2 2012/27515. Case A2 2012/27526. Case UKEATPA/0386/13/LA7. Compensation

Rule 74(1) “Cost” in “the case” is the expense or otherwise loss incurred by theclaimant.

PREPARATION TIME ORDER AND WASTED COST ORDER

Page 3 of 9

2) When a cost order or a preparation time order may or shall be made

76(2) A Tribunal may make such an order where a party has been in breach ofany order or practice direction or where a hearing has been postponed oradjourned on the application of a party.

ii) Case summary and the application of Rule 76

Rule 76(2) A Tribunal may make such an order where a party has been inbreach of any order or practice direction

The claimant refers the Tribunal to a letter dated 02/07/2013

Rule 76(2) Hearings have been postponed or adjourned on the application ofthe respondent.

There are 3 recorded instances where hearings were adjourned or cancelled atthe wish of the respondent.

a) A pre-hearing review scheduled for the 6th of December 2012

b) A pre-hearing review scheduled for the 21st of December 2012

c) A hearing for cost scheduled for the 6th of June 2013

PREPARATION TIME ORDER AND WASTED COST ORDER

Page 4 of 9

3) The amount of a preparation time order

79(1) The Tribunal shall decide the number of hours in respect of which apreparation time order should be made, on the basis of—

(a) information provided by the receiving party on time spent falling within rule75(2); “A preparation time order is an order that “the paying party” make apayment to “the receiving party” in respect of the receiving party’s preparationtime while not legally represented. “Preparation time” means time spentworking on the case”. and

(b) the Tribunal’s own assessment of what it considers to be a reasonable andproportionate amount of time to spend on such preparatory work, withreference to such matters as the complexity of the proceedings, the number ofwitnesses and documentation required.

79(2) The hourly rate is £33 .....

79(3)The amount of a preparation time order shall be the product of the hoursassessed under paragraph (1) and the rate under paragraph (2).

4) When a wasted cost order may be made.

80(1) A Tribunal may make a wasted cost order against a representative infavour of any party …… where that party has incurred cost—

(a) as a result of any unreasonable act or omission on the part of therepresentative.

80(2) “Representative” means a party’s legal or other representative or anyemployee of such representative.

80(3) A wasted cost order may be made in favour of a party whether or notthat party is legally represented….

Important note: In the drawing up of the procedures there is a conflict of reasoning, betweenpreparation time and wasted cost orders. Rules 74 – 78 are in essence the same as rules 80 –82 save as reference to the parties paying or receiving (claimant, respondent and thepotential legal representatives of both sides) and with the exception, there is no method todetermine the amount of wasted cost (rule 80), for the purpose of expedition it is assumedthat rule 79 should be applied. The claimant reserves the right to appeal rules 74 – 84 .

PREPARATION TIME ORDER AND WASTED COST ORDER

Page 5 of 9

iii) Case summary and the application of Rules 75, 79 & 80

It is requested that the Tribunal decide the sum of hours and the cost inrespect of which rule 79(1) preparation time and rule 80(1) wasted cost ordershould be made, on the basis of—

Rule 79(1)(a) All information provided by the claimant within Rule 75(2) Anorder is requested that respondent make a payment to the claimant in respectof the claimant’s preparation time of the case. A submission has been made inrespect of part of the case as instructed by the Tribunal 19/06/2013. Theclaimant is awaiting instruction in respect of correspondence dated from19/06/2013 onwards.

And rule 79(1)(b) The Tribunal’s own assessment of what it considers to be areasonable and proportionate amount of time spent on such preparatorywork, with reference to the complexity of the proceedings and documentationof the case.

Rule 80(1) An order is requested that the respondent make payment to theclaimant in respect of the case. Rule 80(1)(b) the Tribunal considers itunreasonable to expect the claimant to pay the cost Rule 80(1)(a) resultingfrom unreasonable acts and omissions on the part of the respondent. (breachof a duty to the court).

Without going into great detail from the case files it is clear that by issuing orpursuing proceedings for reasons unconnected with success in the litigationand pursuing a case known to be dishonest, evading the rules intended tosafeguard the interests of justice, despite

Orchard v South Eastern Electricity Board [1987]… "it must never be forgottenthat it is not for solicitors or counsel to impose a pre-trial screen through which alitigant must pass before he can put his complaint or defence before the court. Nosolicitor or counsel should lend his assistance to a litigant if he is satisfied that theinitiation or further prosecution of a claim ….have become, an abuse of theprocess of the court or unjustifiably oppressive."

And knowingly failing to make full disclosure on ex parte application andknowingly conniving at incomplete disclosure of documents. The respondentstill pursued their case. Does the conduct permit of a reasonable explanation?

PREPARATION TIME ORDER AND WASTED COST ORDER

Page 6 of 9

Rule 79(3) The amount of preparation time or wasted cost order shall be theproduct of the number of hours assessed, rules 79(1) plus rule 80(1) andcurrent hourly rate of £33, rule 79(2).

A B (A+B) x £3379(2).

Case PreparationTime 79(1)

Wastedcost 80(1)

Loss79(3)

1 1400500/2011

2 UKEATPA/1798/11/JOJ

3 A2 2012/2751

4 A2 2012/2752

5 1401745/2012

6 1401756/2012 101.45

7 1401811/2012

8 1401812/2012

9 4109312/2012

10 UKEATPA/0386/13/LA

11 Compensation £25,000.00

TOTAL

PREPARATION TIME ORDER AND WASTED COST ORDER

Page 7 of 9

5) Effect of a wasted cost order

81 A wasted cost order may order the representative to pay the whole or partof any wasted cost of the receiving party. The amount to be paid, must in eachcase be specified in the order.

6) Procedure

82 A wasted cost order may be made by the Tribunal on its own initiative or onthe application of any party. …….. No such order shall be made unless therepresentative has had a reasonable opportunity to make representation ... inresponse to the application or proposal. The Tribunal shall inform therepresentative’s client in writing of any proceedings under this rule and of anyorder made against the representative.

PREPARATION TIME ORDER AND WASTED COST ORDER

Page 8 of 9

7) Clean Hands

It has been stated by the respondent that “the claimant does not make thiswasted cost application with clean hands”

The case Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40 is a good startingpoint for the clean hands doctrine as an authority on the conduct of legalrepresentatives it outlines all of the applicable conduct required to keep aclean pair of hands.

Despite judgments against the claimant founded upon the allegedunreasonable conduct of the respondent. The claimant has not withdrawnfrom the process as can be seen from rule 76(2) this would be unreasonable.The claimant remains optimistic that at some stage the Tribunal will acceptthat it made a mistake at the hearing 7-8th September 2011. The immunityafforded to legal representatives and judges should be extended to theclaimant

Immunity: Party’s should be free to conduct a case fearlessly, independently andwithout looking over their shoulders; the need for finality, so that cases are notendlessly re-litigated with the risk of inconsistent decisions; the duty of all to theadministration of justice; the general immunity accorded to those taking part inproceedings; Only if a party’s conduct is unreasonable they are liable to a wastedcost order any judge who is invited to make or contemplates making an orderarising out of a parties conduct of proceedings must make full allowance for thefact that any party in an argument, often has to make decisions quickly or underpressure, ignorant of the manoeuvring of their opposition. Mistakes willinevitably be made, things done which the outcome shows to have been unwise.It is only when, with all allowances made, a party’s conduct of proceedings isquite plainly unjustifiable that it can be appropriate to make a wasted cost order.

The claimant admits to mistakes and making unwise moves but they were notunjustifiable there is no mechanism to overturn an incorrect judgment.Suffering from significant disability, anxiety and depression and with animpaired equilibrium the claimant has soldiered on in the interests of justicefor all.

PREPARATION TIME ORDER AND WASTED COST ORDER

Page 9 of 9

8) The public interest

Clearly affirmed by Act of Parliament, is that party’s to litigation should not beprejudiced by the unjustifiable conduct of lawyers.

9) Pursuing a hopeless case.

Party’s are not to be held to have acted unreasonably simply because they pursue a claim or a defence which is doomed to fail.

10) The acid test

Whether the conduct permits of a reasonable explanation? If so, the courseadopted may be regarded as optimistic and as reflecting on the claimantsjudgment, but it is not unreasonable.

The claimant claims that with intense scrutiny all of his submissions andactions will pass the acid test of the courts. The claimant remains optimisticthat Justice will be done.

The criticism that was unjustly levelled at the claimant by the respondent andendorsed by the tribunal has no basis other than the benefit of doubt. Untilover turned the claimant has to carry this burden.

11) Indisputable facts

a) The claimant under extraordinary circumstances made severalattempts to get a flight home.

b) The claimant did not know or have the number of Mr Baxevanidis, inany event a message was received and accepted by him in good time.

c) The claimant returned to the UK and work as and when he said hewould.

d) 09/12/10 There was a confrontation – an accident which rendered theclaimant unfit for work.

e) What happened after these events was more unreasonable behaviourof the respondent.

Yours Faithfully

Douglas Gardiner

14/08/2013