Liddington v. 2gether NHS Foundation Trust

A litigant in person is not held to the standard of a lawyer. However, after repeated opportunities and clear guidance, a failure to state in lay terms the acts complained of, their dates, the persons responsible and the alleged detriments may amount to unreasonable conduct for the purposes of a costs order.

The assessment is contextual and is primarily for the Employment Tribunal familiar with the proceedings. An appellate court will not interfere merely because another tribunal might have reached a different view. A reconsideration application is a limited exception to finality in litigation. It is not a means of rearguing matters already determined or advancing available points omitted at the original hearing.

The Claimant, formerly employed by the Respondent as a community practitioner, brought claims including constructive unfair dismissal, whistleblowing and discrimination. Her claims had been the subject of several preliminary hearings and requests for further particulars.

At a hearing on 12 May 2015, the Employment Tribunal found that she remained unable adequately to identify material protected acts, detriments and comparators. At a later hearing, Employment Judge Perry ordered her to pay the Respondent’s costs of the 12 May hearing, summarily assessed at £1,481, for unreasonable conduct. The Judge subsequently refused reconsideration.

The Claimant appealed the costs order and refusal of reconsideration. A separate appeal concerning strike-out of withdrawn claims had become academic.

1. Appeals dismissed. The separate appeal concerning claims which had been withdrawn was academic and was dismissed. The costs order and the refusal of reconsideration disclosed no error of law.

2. The Employment Judge had correctly assessed unreasonable conduct in its procedural context. He recognised that a litigant in person could not be expected to produce a lawyer’s detailed pleading. Nevertheless, the Claimant should have been able to state in ordinary language what had been said or done, by whom and when. Her failure to do so after four opportunities, despite clear directions as to the information required, was capable of amounting to unreasonable conduct.

3. The finding was not based on inability in the abstract, nor on an expectation that the Claimant meet professional pleading standards. It rested on her lack of preparation despite repeated opportunities to particularise matters within her knowledge. Her asserted stress and ill health did not compel a different conclusion. There was no medical evidence that she was unfit to represent herself at the relevant hearing and no application to postpone it on that basis.

4. The Judge was entitled to find a causal connection between that conduct and the costs of the 12 May hearing. Had the Claimant adequately prepared and particularised her case, the adjournment to give a final opportunity to do so would have been unnecessary. The later ineffective hearing did not determine whether the earlier hearing had been wasted.

5. The reasons adequately explained the material findings and conclusions. The Judge also exercised the costs discretion rather than treating costs as automatic. He considered the Claimant’s means, the proportionality of counsel’s fee and the limited sum sought. The award was not an indemnity-costs order.

6. The reconsideration application sought, in substance, to re-litigate matters already argued. The Judge was entitled to refuse it without a hearing because there was no reasonable prospect that the original decision would be varied or revoked. The costs order therefore stood.

• Employment Appeal Tribunal: dismissed the academic appeal concerning strike-out of withdrawn claims and dismissed the appeals against the costs order and refusal of reconsideration.
• Employment Tribunal: Employment Judge Perry ordered the Claimant to pay £1,481 costs in a judgment sent on 26 August 2015 and refused reconsideration by a decision dated 21 September 2015.