Case No: 1401745/2012
EMPLOYMENT TRIBUNALS
Claimant: Mr D I Gardiner
Respondent: Exsto UK Ltd & Others
Heard at: Bristol O...
Case No: 1401745/2012
4. There is no obligation for a party to state its reasons for withdrawing its application
for a pre...
Case No: 1401745/2012
9. The Claimant has attended today and wished to rely on his written
submissions of 1313th 19th , 1 ...
Case No: 1401745/2012
14.The Claimant did not attend the hearing in January 2013. The Respondent at
the hearing, after I a...
Case No: 1401745/2012
18. I reject the Claimant's contention that, having made an application for a
preparation time order...
PREPARATION TIME ORDER AND WASTED COST ORDER
Page 1 of 9
Gardiner v Exsto UK & ORS
From the authority on wasted cost Rideh...
PREPARATION TIME ORDER AND WASTED COST ORDER
Page 2 of 9
1) Definitions
74(1) “Cost” means fees, charges, disbursements or...
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 ...
PREPARATION TIME ORDER AND WASTED COST ORDER
Page 4 of 9
3) The amount of a preparation time order
79(1) The Tribunal shal...
PREPARATION TIME ORDER AND WASTED COST ORDER
Page 5 of 9
iii) Case summary and the application of Rules 75, 79 & 80
It is ...
PREPARATION TIME ORDER AND WASTED COST ORDER
Page 6 of 9
Rule 79(3) The amount of preparation time or wasted cost order sh...
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...
PREPARATION TIME ORDER AND WASTED COST ORDER
Page 8 of 9
7) Clean Hands
It has been stated by the respondent that “the cla...
PREPARATION TIME ORDER AND WASTED COST ORDER
Page 9 of 9
8) The public interest
Clearly affirmed by Act of Parliament, is ...
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Call for review of ET judgment at a hearing for wasted costs

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Dear Sir/Madam

Could you please ask Judge Harper to review her Judgment as attached.

Yours Faithfully

Douglas

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Call for review of ET judgment at a hearing for wasted costs

  1. 1. 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 24th 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
  2. 2. 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
  3. 3. 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 dissatisfied 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)
  4. 4. 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.
  5. 5. 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 6th 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)
  6. 6. 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 acted unreasonably? (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 to compensate 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 is ascertained that the applicable rules of “The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013” and their application are 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 76 3) The amount of a preparation time order - rule 79 & 75 4) When a wasted cost order may be made - rule 80 iii) Case summary and the application of - rules 75, 79 & 80 5) Effect of a wasted cost order - rule 81 6) Procedure – rule 82 7) Clean hands 8) The Public interest 9) Pursuing a hopeless case 10) The acid test 11) Indisputable fact
  7. 7. 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 on behalf 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 of England and Wales, or….. county or magistrates’ courts; i) Case summary and the application of Rule 74 Gardiner “receiving party” claimant V 1) Exsto UK & Ors 2) Peninsula Business Services (representative) (Outsourced suppliers of human resource and health safety at work and legal services) “paying party” respondent “The case” as listed 1. Case 1400500/2011 2. Case UKEATPA/1798/11/JOJ 3. Cases1401745, 1401756, 1401811, 1401812, 4109312/2012 4. Case A2 2012/2751 5. Case A2 2012/2752 6. Case UKEATPA/0386/13/LA 7. Compensation Rule 74(1) “Cost” in “the case” is the expense or otherwise loss incurred by the claimant.
  8. 8. 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 of any order or practice direction or where a hearing has been postponed or adjourned 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 in breach 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 of the respondent. There are 3 recorded instances where hearings were adjourned or cancelled at the 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
  9. 9. 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 a preparation time order should be made, on the basis of— (a) information provided by the receiving party on time spent falling within rule 75(2); “A preparation time order is an order that “the paying party” make a payment to “the receiving party” in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent working on the case”. and (b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses 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 hours assessed 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 in favour of any party …… where that party has incurred cost— (a) as a result of any unreasonable act or omission on the part of the representative. 80(2) “Representative” means a party’s legal or other representative or any employee of such representative. 80(3) A wasted cost order may be made in favour of a party whether or not that party is legally represented…. Important note: In the drawing up of the procedures there is a conflict of reasoning, between preparation 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 the potential legal representatives of both sides) and with the exception, there is no method to determine the amount of wasted cost (rule 80), for the purpose of expedition it is assumed that rule 79 should be applied. The claimant reserves the right to appeal rules 74 – 84 .
  10. 10. 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 in respect of which rule 79(1) preparation time and rule 80(1) wasted cost order should be made, on the basis of— Rule 79(1)(a) All information provided by the claimant within Rule 75(2) An order is requested that respondent make a payment to the claimant in respect of the claimant’s preparation time of the case. A submission has been made in respect of part of the case as instructed by the Tribunal 19/06/2013. The claimant is awaiting instruction in respect of correspondence dated from 19/06/2013 onwards. And rule 79(1)(b) The Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time spent on such preparatory work, with reference to the complexity of the proceedings and documentation of the case. Rule 80(1) An order is requested that the respondent make payment to the claimant in respect of the case. Rule 80(1)(b) the Tribunal considers it unreasonable to expect the claimant to pay the cost Rule 80(1)(a) resulting from unreasonable acts and omissions on the part of the respondent. (breach of a duty to the court). Without going into great detail from the case files it is clear that by issuing or pursuing proceedings for reasons unconnected with success in the litigation and pursuing a case known to be dishonest, evading the rules intended to safeguard the interests of justice, despite Orchard v South Eastern Electricity Board [1987]… "it must never be forgotten that it is not for solicitors or counsel to impose a pre-trial screen through which a litigant must pass before he can put his complaint or defence before the court. No solicitor or counsel should lend his assistance to a litigant if he is satisfied that the initiation or further prosecution of a claim ….have become, an abuse of the process of the court or unjustifiably oppressive." And knowingly failing to make full disclosure on ex parte application and knowingly conniving at incomplete disclosure of documents. The respondent still pursued their case. Does the conduct permit of a reasonable explanation?
  11. 11. 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 the product of the number of hours assessed, rules 79(1) plus rule 80(1) and current hourly rate of £33, rule 79(2). A B (A+B) x £33 79(2). Case Preparation Time 79(1) Wasted cost 80(1) Loss 79(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
  12. 12. 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 part of any wasted cost of the receiving party. The amount to be paid, must in each case be specified in the order. 6) Procedure 82 A wasted cost order may be made by the Tribunal on its own initiative or on the application of any party. …….. No such order shall be made unless the representative has had a reasonable opportunity to make representation ... in response to the application or proposal. The Tribunal shall inform the representative’s client in writing of any proceedings under this rule and of any order made against the representative.
  13. 13. 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 this wasted cost application with clean hands” The case Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40 is a good starting point for the clean hands doctrine as an authority on the conduct of legal representatives it outlines all of the applicable conduct required to keep a clean pair of hands. Despite judgments against the claimant founded upon the alleged unreasonable conduct of the respondent. The claimant has not withdrawn from 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 accept that it made a mistake at the hearing 7-8th September 2011. The immunity afforded to legal representatives and judges should be extended to the claimant Immunity: Party’s should be free to conduct a case fearlessly, independently and without looking over their shoulders; the need for finality, so that cases are not endlessly re-litigated with the risk of inconsistent decisions; the duty of all to the administration of justice; the general immunity accorded to those taking part in proceedings; Only if a party’s conduct is unreasonable they are liable to a wasted cost order any judge who is invited to make or contemplates making an order arising out of a parties conduct of proceedings must make full allowance for the fact that any party in an argument, often has to make decisions quickly or under pressure, ignorant of the manoeuvring of their opposition. Mistakes will inevitably 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 is quite 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 not unjustifiable there is no mechanism to overturn an incorrect judgment. Suffering from significant disability, anxiety and depression and with an impaired equilibrium the claimant has soldiered on in the interests of justice for all.
  14. 14. 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 be prejudiced 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 course adopted may be regarded as optimistic and as reflecting on the claimants judgment, but it is not unreasonable. The claimant claims that with intense scrutiny all of his submissions and actions will pass the acid test of the courts. The claimant remains optimistic that Justice will be done. The criticism that was unjustly levelled at the claimant by the respondent and endorsed by the tribunal has no basis other than the benefit of doubt. Until over turned the claimant has to carry this burden. 11) Indisputable facts a) The claimant under extraordinary circumstances made several attempts to get a flight home. b) The claimant did not know or have the number of Mr Baxevanidis, in any 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 he would. d) 09/12/10 There was a confrontation – an accident which rendered the claimant unfit for work. e) What happened after these events was more unreasonable behaviour of the respondent. Yours Faithfully Douglas Gardiner 14/08/2013

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