Spurious whistleblower ordered to pay former employer ?10,000 in Tribunal costs, maximum allowed under Tribunal Rules
Spurious whistleblower ordered to pay former employer £10,000 in Tribunal costs, maximum allowed under Tribunal Rules
Paul Keogh v Banbridge Citizens Advice Bureau Case Refs:458/12, 3010/11, 2973/11 & 1463/11- Costs Decision issued 9th October 2014.
Paul Keogh’s four Tribunal claims against his former employer Banbridge CAB were dismissed following an eleven-day hearing in December 2012. The Tribunal found that the claimant, in collusion with others, concocted a claim and raised spurious allegations of sex discrimination and unfair dismissal, in addition to detriment and dismissal on grounds of having made a series of protected disclosures and on grounds of having made a series of health and safety disclosures.
The claimant produced extremely lengthy and diffuse documentation as part of an apparent tactic to paralyse the respondent.This practice of producing extremely long documents in relation to these proceedings began with the claim forms which ran to approximately 400 pages of typed narrative and included whole documents and extracts from documents.The claims originally were against 12 respondents.In addition the replies ran to 100 pages and set out 35 alleged disclosures and 120 alleged detrimental acts.
Following an unsuccessful appeal by Mr Keogh to the Court of Appeal, the Tribunal reconvened in August 2014 to consider the Respondent’s application for costs.
Whilst mindful of the fact that the legal authorities set a high hurdle for vexatious claims, the Tribunal was satisfied that the claimant in this case acted vexatiously and unreasonably in bringing and conducting his claims in bad faith and with a view to making the claims harder and more costly for the respondent to deal with. The claims were also found to be misconceived as they had little reasonable prospect of success given that the claimant knew that he was pursuing claims which had no merit. The Tribunal’s findings and principal reasons were as follows:-
·The claimant lied in relation to several key events and that he colluded with his witnesses to pursue claims which were without merit.
·The extremely lengthy correspondence and claim forms and interlocutory documents in relation to these proceedings were a continuation of the claimant’s tactic (deployed during his employment) of trying to make things difficult for his opponent.
·The claimant’s treatment of the tribunal Orders in relation to witness statements and his persistence in failing to comply with those Orders and yet trying to use witness statements during the hearing were a tactic to make it more difficult and costly for his opponents to deal with these proceedings.
·The claimant was a specialist adviser who presented claims in the industrial tribunal and other tribunals and was the holder of a law degree.The claimant was an experienced representative with clear familiarity with employment law and procedure.Despite this, he pursued unmeritorious claims based on evidence which was found to be untrue.The claimant therefore pursued these proceedings in bad faith.
·From the hearing and correspondence it was clear that he was familiar with Court processes.Nevertheless the claimant suggested an unreasonable timetable stating that he would need 36 hours (that is six days) to present his evidence and he unreasonably refused to agree a reasonable timetable taking account of the short employment and the limited number of key events relied upon by him.This meant that a timetable had to be imposed and the claimant sought to exceed that on every occasion.We find this to be indicative of the claimant’s attitude which was to try to lengthen proceedings to increase costs for the respondents.
The effect of the vexatious/unreasonable behaviour was as follows:
·Two CMDs were unnecessary as they had to be arranged to deal with the claimant’s failure to comply with the tribunal Orders in relation to witness statements;
·The substantive hearing was lengthened because witness statements had to be abandoned because of the claimant’s behaviour and time was wasted at the outset of the hearing when the claimant tried to reintroduce statements;
·Throughout the hearing the claimant had to be reminded to focus on the issues and to pick out relevant parts from the voluminous documentation which he said supported his claim.This prolonged the hearing;
·The claimant’s four claims generated an inordinate amount of documentation which led to four lever arch files of documents being presented during the hearing.
·Half a day was lost on the last day of hearing because the claimant simply failed to turn up because he wanted more time to prepare his submissions without reference to the tribunal or the respondent.
The Tribunal had no hesitation in deciding that it was appropriate to award costs in this case primarily given that the claimant pursued the claims in bad faith.This was not a case of a claimant acting in ignorance of the law or unable to assess the merits of his claim.The claimant was well able to assess the merits of his claim as he was well able to argue his case at hearing on the facts and the law.
In ordering the maximum award of £10,000, the Tribunal declined to discount this sum given the paucity of selective financial evidence from the claimant and given the fact that he chose not to attend the costs hearing and thereby avoided submitting to cross-examination in relation to his means.
The Respondent was represented by Louise McAloon of Worthingtons Solicitors Belfast and Mr Barry Mulqueen BL.
Louise McAloon is a Partner within the Employment Law Team at Worthingtons Solicitors Belfast Office and specialises in Employment law and providing advice and representation in respect of all categories of employment claims before the Industrial and Fair Employment Tribunals and the civil courts in Northern Ireland.