22 November 2023|
Litigation, Disclosure and ADR Procedure
Costs awarded against a vexatious unrepresented party
Unlike the Civil Courts, the Employment Tribunal (“ET”) typically operates a no costs regime. This means, for example, that the “the loser pays” principle does not apply.
Nevertheless, costs can be and are awarded in the ET for (inter alia) vexatious and unreasonable conduct. Such conduct is likely to include any claim or response that has “no reasonable prospects of success”, or where a hearing has been “postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins” (Rule 76 of the 2013 Employment Rules of Procedure).
By costs judgment dated 30 October 2023, the ET granted a costs award against a litigant in person, Ms Puar, after her claims for discrimination against a national law firm (Duncan Lewis Solicitors Ltd) failed.
Employment Judge Maxwell made a costs order against Ms Puar for the sum of £20,000 because she had conducted the proceedings unreasonably “almost from their inception”.
When assessing whether costs should be awarded to the Respondent, the ET stated that Ms Puar’s claims had had no reasonable prospects of success for the reasons given in its liability judgment. In particular, “there was overwhelming evidence which tended to show a non-discriminatory reason for the matters she complained of (to such extent as these occurred) namely her own misconduct and poor performance”. The lack of legal merits had been drawn to Ms Puar’s attention in clear terms and the ET found she knew or ought reasonably to have known that her claims had no reasonable prospect of success.
The costs judgment also reiterated earlier findings by the ET that Ms Puar had behaved unreasonably in relation to the disclosure of documents. Further, the judgment recorded her unreasonable conduct in failing to attend a Preliminary Hearing (which then needed to be relisted), and in submitting an application for postponement on the basis she was not prepared for the final hearing.
Employment Judge Maxwell stated that “At times she has sought to do that which is most likely to frustrate and inconvenience the Respondent. She has acted both unreasonably and vexatiously. She was given proper opportunities to withdraw from this and failed to do so.”
The ET therefore found it was appropriate and in the interests of justice to make an award of costs of £20,000 against Ms Puar.
What to take away
Whilst the ET typically employs a no costs regime, that does not remove the parties’ obligations to conduct litigation reasonably and to properly assess the merits of their claims. This costs award against a litigant in person should act as a clear health warning: litigation in the ET is not risk free when it comes to costs.
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