Liddington v 2gether NHS Foundation Trust (Practice and Procedure: Costs)

An Employment Tribunal may find a litigant in person has conducted proceedings unreasonably where, despite repeated opportunities and clear guidance, the litigant is inadequately prepared to give the basic factual particulars needed to define the claims. The applicable standard is lower than that expected of a lawyer, but it does not remove the need to identify, in ordinary terms, the acts complained of, their dates and the persons involved.

A costs order requires a causal connection between the unreasonable conduct and costs wasted. That connection may arise where inadequate preparation makes an adjournment necessary. Once the threshold is met, costs remain discretionary. The Tribunal must consider all the circumstances, including means, health evidence and the proportionality of the sum assessed. Reconsideration is a limited exception to finality and is not a means of re-arguing matters or introducing points previously available.

The Claimant, formerly employed as a community practitioner, brought claims including constructive unfair dismissal, whistleblowing and discrimination. Her claims were repeatedly found to be inadequately particularised. At a preliminary hearing on 12 May 2015, the Employment Judge gave her a final opportunity to provide essential particulars.

Following later proceedings, the Employment Judge made deposit orders in respect of several complaints and ordered the Claimant to pay the Respondent’s costs of the 12 May hearing, summarily assessed at £1,481. The Judge found that her conduct of the proceedings had been unreasonable. He later refused her application to reconsider that costs order.

Three appeals were before the Employment Appeal Tribunal. The strike-out appeal had become academic after reconsideration of that order. The substantive appeals challenged the costs order and the refusal of reconsideration. The central issue was whether the Employment Judge had erred in law in finding unreasonable conduct, causation, the exercise of discretion, or the reconsideration process.

1. Appeals dismissed. The academic appeal against the strike-out order was dismissed. The appeals against the costs order and the refusal to reconsider it also failed. The costs order therefore stood.

2. The Employment Judge had been entitled to assess the Claimant’s conduct in its full procedural context. He was familiar with the pleadings and earlier attempts to obtain particulars. Although a litigant in person could not be expected to produce a lawyer’s detailed pleading, she should have been able to identify in ordinary language what was said or done, by whom and when. Her inability, after four opportunities and clear directions, to identify material dates, detriments and comparator characteristics was a permissible basis for finding unreasonable conduct. The finding was based on inadequate preparation in that context, not inability alone or an expectation that she should meet a lawyer’s standard.

3. The perversity challenge did not meet the high threshold for appellate interference. The Employment Judge’s conclusion was supported by the hearing record, earlier orders and repeated unsuccessful efforts to obtain adequate particulars. It was a conclusion open to a reasonable Tribunal.

4. The reasons were adequate. Applying Meek, a Tribunal need only state the basic findings and conclusions needed to explain its decision. It need not give an elaborate chronology or account of every item of correspondence or bundle material.

5. The necessary causal connection for costs was established. Had the Claimant been adequately prepared at the 12 May hearing, the adjournment for further clarification would not have been necessary and that hearing’s costs would not have been wasted. The later ineffective hearing on 3 June did not undermine that conclusion.

6. The Judge properly treated costs as discretionary after the threshold had been crossed. He considered the Claimant’s ill health and means, and assessed the proportionality and reasonableness of counsel’s fee and travel cost. No indemnity-basis order had been made. The limited award of counsel’s fee was permissible.

7. The reconsideration application was properly refused without a hearing because it had no reasonable prospect of varying or revoking the original decision. Reconsideration is not a second opportunity to re-litigate fully argued matters or advance points previously omitted. An identifiable error of law should be addressed on appeal.

• Employment Appeal Tribunal: dismissed the academic appeal concerning the strike-out order and dismissed the appeals against the costs order and refusal of reconsideration.
• Employment Tribunal: made a costs order in a judgment sent on 26 August 2015 and refused reconsideration on 21 September 2015. An earlier strike-out decision was reconsidered so that claims withdrawn following unpaid deposit orders were treated as dismissed on withdrawal rather than struck out.