THE INDUSTRIAL TRIBUNALS

CASE REFS:   7222/09
7223/09

APPELLANT:		CWT Asbestos & Demolition Limited

RESPONDENT:		Health and Safety Executive for Northern Ireland 

DECISION ON COSTS
The unanimous decision of the tribunal is that the appellant shall pay the respondent costs in the sum of £750.00.

Constitution of Tribunal:
Chairman:		Mr Patrick Kinney
Members:		Mr Duncan Mercer
			Ms Elizabeth Gilmartin

Appearances:
The appellant was represented by Mr Lynch, Solicitor, of Elliott Duffy Garrett, Solicitors.
The respondent was represented by Mr McGleenan, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Issue

1.	The issue for the tribunal to determine is:-

“Whether the tribunal should make an Order that the appellant make a payment in respect of the costs incurred by the respondent.”

2.	This application for costs by the respondent arises from the earlier decision of the tribunal dismissing the appellant’s appeal against a Prohibition Notice issued by the respondent to the appellant under the Health & Safety at Work (Northern Ireland) Order 1978.  

3.	Mr McGleenan, for the respondent, pointed to the provisions of Schedule 5 of the Industrial Tribunals Rules of Procedure 2005 giving the tribunal discretion to award costs against a party.  The tribunal in its earlier decision affirmed the Prohibition Notice issued by the respondent.  The tribunal stated it would have issued the same Notice as the inspector.  Mr McGleenan contended that the appellant’s case was misconceived from the outset.  It was evidentially devoid of merit.  The core issue at the tribunal was the exchange between the respondent’s inspector and the appellant’s operatives on site at the time.  The appellant produced no witness present on the site at the time of the first visit of the respondent’s inspector which led to the issuing of a Prohibition Notice.  Mr McGleenan submitted that the respondent was a public authority.  It was charged with a duty under the Health & Safety legislation and in this case was properly discharging its statutory functions.  Appeals should not be brought if they are without merit.  Mr McGleenan accepted that whilst the tribunal had a discretion to awards costs, the normal Rules relating to costs in industrial tribunals contained in Schedule 1 of the Rules were specifically disapplied by Schedule 5.  In those circumstances, Mr McGleenan argued that the tribunal should take as a starting point the principle in the civil courts.  Costs should follow the event unless there is good reason to depart from that principle.  There were historical reasons for the costs regime in the industrial tribunals in relation to disputes between the employer and employee.  This, however, is a different appellate jurisdiction and those historical reasons do not apply.  

4.	Mr McGleenan was unable to quantify the level of costs sought, or indeed how they may be calculated even after an opportunity to consult with his instructing solicitor.

5.	Mr Lynch, on behalf of the appellant, relied on the provisions relating to costs as set out in Harvey.  He contended that costs do not follow the event in the industrial tribunals and are the exception rather than the rule.  The appellant had not acted unreasonably in bringing its appeal.  The Prohibition Notice was not specific enough to identify the main concerns of the inspector, namely the exposed fanlights and working at height.  The service of a Prohibition Notice is very penal.  It could lead to criminal sanctions or to the removal of an asbestos contractor’s licence.  It appears on a Public Register and can affect a party’s ability to obtain work.  The appellant is entitled to challenge and test the issue of a Prohibition Notice.

6.	Whilst the tribunal can take into account the information available to the inspector when he decides to issue a Prohibition Notice, it can also take into account matters which occurred after the Prohibition Notice was served.  An appellant should not be penalised for not assessing its case at the outset in the same way as a tribunal after hearing all the evidence.  Mr Lynch was not in a position to provide any evidence or information relating to the appellant’s ability to pay any sum awarded for costs other than to say the appellant’s workforce had reduced from 14 to 4 with a consequential reduction in income.  

The law

7.	The provisions relating to costs on appeals against Prohibition Notices are found in Schedule 5 of the Industrial Tribunals Rules of Procedure 2005.  Rule 9 provides that a tribunal may make a Costs Order requiring a party to make a payment in respect of the costs incurred by another party.  The tribunal may have regard to the paying party’s ability to pay when considering whether it should make a Costs Order or how much that Order should be.  Rule 10 of Schedule 5 specifically disapplies the provisions in Schedule 1 which normally apply to the making of Costs Orders in the industrial tribunals.  The tribunal therefore has a wide discretion as to whether or not costs should be awarded.

Tribunal’s conclusions

8.	In considering its discretion to award costs, a tribunal does not consider that the correct starting point is on the basis that costs should follow the event.  In establishing a costs regime for the industrial tribunals, parliament made a decision to put in place a system where costs do not follow the event.  Whilst the detailed Rules relating to costs contained in Schedule 1 of the Rules of Procedure are disapplied by Rule 10 of Schedule 5 there is no authority before this tribunal that there should be a departure under Schedule 5 from the general principle that each party should bear its own costs.  In deciding whether or not to award costs the tribunal will seek to do justice in this case and provide a just outcome.  

9.	In considering our discretion to award costs, we have taken into account the conduct of the parties, the importance of the matter to the parties and the particular complexity of the matter.  We have considered the requirements of the overriding objective.  We also considered whether the proceedings were conducted in a manner which allowed the parties to know where they stood at the earliest stage to allow informed decisions to be made about the prospects of success and about the sensible conduct of the case.

10.	It is clear to us that imposition of a Prohibition Notice on a party can have              far-reaching effects.  The appellate jurisdiction of a tribunal has little to guide it by way of established authority and the correct legal test for the tribunal to apply was a matter considered in the course of the original proceedings.  As Mr Lynch rightly points out, the tribunal identified the situation as at the time of the service of the Prohibition Notice but on the basis of the evidence before it, including evidence of matters not in existence at the date the Prohibition Notice was served.  There was clearly some confusion as to what precisely the inspector required after his initial visit to the site.  The tribunal concludes that it was not unreasonable for the appellant to seek to challenge the Prohibition Notice by way of appeal.  As the court said in the case of E T Marler  v  Robertson [1974] ICR 72 NIRC:-

“Ordinary experience of life frequently teaches us that which is plain for all to see once the dust of battle subsided was far from clear to the combatants once they took up arms.”

11.	Whilst this case applies to the costs regime for industrial tribunals then in force, we feel the comments are equally applicable in this context.

12.	However, a separate question which arises is whether or not the appellant ought to have realised the difficulties in its case before reaching a hearing.  The tribunal concludes that it ought to have been reasonably apparent to the appellant, taking into account the absence of any evidence contradicting the inspector’s version of events from its first visit, and the characterisation of the acting foreman by the appellant’s witnesses, that there was little prospect of success.  The tribunal has determined that even if the appellant would not necessarily have come to that view before the hearing commenced, it should have quickly become apparent on hearing the respondent’s evidence. 

13.	The tribunal therefore concludes that the appellant should make a contribution to the respondent’s costs.  In reaching an appropriate figure, the tribunal has taken into account the lack of information on the appellant’s ability to pay and the absence of any quantification of costs by the respondent.  Applying its own experience and knowledge the tribunal considers the appropriate figure the appellant should pay to the respondent is £750.00.

Chairman:

Date and place of hearing:	1 October 2010, Belfast

Date decision recorded in register and issued to parties: