Although tribunals have the power to make costs orders against claimants, they tend to be the exception rather than the rule particularly when the claimant is a litigant in person. In Liddington v 2GETHER NHS FOUNDATION TRUST, however, the Employment Appeal Tribunal (EAT) upheld a tribunal’s decision to make a costs order for unreasonable conduct against a litigant in person who repeatedly failed to particularise her claims adequately.
Basic facts
Ms Liddington was a community practitioner who made a complaint about the care of a patient in a private care home in December 2012. After making what she claimed was a safeguarding referral, the care home complained about the care Ms Liddington had administered, suggesting this was the second instance of poor conduct on her part.
Ms Liddington was ultimately dismissed and in October 2014, she brought tribunal complaints of constructive unfair dismissal, religious discrimination, whistle blowing, unpaid holiday pay and travel expenses, claims for notice pay, and a failure to provide her with a statement of changes to her terms and conditions.
Tribunal decision
Following a number of preliminary tribunal hearings, Ms Liddington was advised that her complaints were not adequately particularised. For instance, she could not identify the dates of four of the six protected acts she had referred to, nor the detriments she was relying on. Nor could she give the names and characteristics of actual or hypothetical comparators for the direct and harassment discrimination claims.
In April 2015 the Trust applied to strike out her claims. At a hearing on 12 May 2015, the employment judge gave her a final chance to provide the details. There was a further hearing in June at which a number of her claims were dismissed; and again in August when the judge again refused to strike out her claims but made deposit orders in relation to nine complaints which had little chance of success.
Separately, however, the judge decided that although Ms Liddington was a litigant in person (and therefore could not be held to the standards of a lawyer), her continued failure to provide detailed particulars amounted to unreasonable conduct. She was ordered to pay the Trust’s costs at the May hearing, assessed at £1,481.
Ms Liddington appealed against the award of costs on a number of grounds, including an argument that the tribunal’s decision was perverse.
EAT decision
The EAT dismissed the appeal, holding that the judge’s conclusions on 12 May that the claims were not adequately particularised had already been reached at an earlier date by two other employment judges. Further, the judge had dealt with earlier hearings, in particular the hearing on 12 May when he witnessed at first hand Ms Liddington’s repeated inability to articulate even the basis of some of her complaints.
As such, the judge was required to assess the reasonableness of her conduct in context, and did so in a way that was permissible. The tribunal's finding in relation to the costs application was supported by the evidence of what had happened at earlier hearings and the Orders directing the provision of particulars, together with the failed attempts to supply such particulars.
There is no suggestion that the tribunal misdirected itself in law, and, although a different tribunal might have reached a different conclusion in relation to these matters, the EAT was satisfied that the conclusion that this tribunal reached was a permissible option in the circumstances of this case and one with which it would not interfere.