Godfrey Morgan Solicitors Ltd v Marzan & Anor

An Employment Tribunal may order costs where a party has conducted proceedings unreasonably. A solicitor and officer of the court should not exploit an immaterial technical misdescription of the respondent so as to frustrate the fair and efficient determination of the real dispute.

The general case-management power in the Employment Tribunals Rules of Procedure 2004 must be exercised according to logic, relevance, reason, justice and the overriding objective. It cannot be used arbitrarily or as a disciplinary measure. Disclosure concerning a collateral credibility issue, which is unnecessary to determine the claim fairly or save expense, is impermissible. An unless order must state with sufficient clarity both what is required and the consequence of non-compliance.

The claimant, a former paralegal, brought an Employment Tribunal claim for notice pay against a solicitors’ practice described as trading as GMS Law. The employer contended that the firm named was legally distinct from the company which had employed her, although the company traded under that name.

At the first hearing the Tribunal joined the company and made a preparation-time and costs order against the firm for its unreasonable conduct. Subsequent orders required Godfrey Morgan to produce an airline ticket to prove that he had been abroad on the date of that hearing. A purported unless order led to the response being struck out, judgment for the claimant, and a further preparation-time order.

The five appeals raised whether the first costs order was justified and whether the disclosure, unless, strike-out, merits and further costs orders could stand.

1. The appeal against the first preparation-time and costs order was dismissed. The Tribunal was entitled to find that the firm had acted unreasonably. The omission of “Limited” was, at most, a slight technical misdescription. A professionally competent representative should have identified the correct employer, explained the error and disclosed the employment contract held by the associated company.

   A solicitor is an officer of the court and has a general duty to facilitate justice between the parties. It is inimical to the Tribunal system to persist in a technical point which has no merit beyond increasing cost, delay and use of Tribunal resources. The finding that the response had been deployed in the hope that the claimant would not pursue her claim was open to the Employment Judge. The resulting order for time wasted at the abortive hearing was justified.

2. The remaining appeals were allowed. The order requiring production of an airline ticket was irrelevant to the substantive notice-pay claim. At most it concerned a tangential issue of credibility. There was no reason why the document was necessary to determine the claim fairly or to save expense.

   The broad case-management discretion under rule 10 had to be exercised by reference to logic, relevance, reason, justice and the overriding objective. It could not be exercised arbitrarily, capriciously or as a means of disciplining a solicitor. The Tribunal was not a professional disciplinary body. Requiring a person to obtain a document which he said he no longer possessed, under threat of an unspecified sanction, was a misuse of the power.

3. The purported unless order was also hopelessly uncertain. It did not identify the ticket, flight or date with sufficient precision, and did not state the consequence of non-compliance. The disclosure order was perverse and without rational basis. Its invalidity required the strike-out, the unopposed determination and the subsequent preparation-time order to be set aside.

4. The unpaid-wages claim was remitted for hearing before a freshly constituted Tribunal. Employment Judges Warren, Pritchard-Witts and Moore were not to sit.

• Employment Appeal Tribunal: The appeal against the February 2011 preparation-time and costs order was dismissed. The appeals arising from the airline-ticket disclosure and unless order were allowed, and the claim was remitted to a freshly constituted Employment Tribunal.
• Employment Tribunal: The firm was ordered to pay preparation time and costs following the first hearing. Later orders required production of an airline ticket; non-compliance resulted in strike-out of the response, judgment for the claimant against the company, and a further preparation-time order.