In the latest episode of this thrilling claim the EAT has upheld a rather hefty costs order against Ms Vaughan. For those of you who may have missed the first couple of episodes, let’s go back to the beginning.
Ms Vaughan appealed against the Employment Tribunal’s ruling that 39 hours’ worth of covert recordings of her employer’s meetings with her were inadmissible as evidence (see our post of 14 March http://www.employmentlawworldview.com/secrets-and-lies-admissibility-of-covertly-obtained-evidence-in-the-uk-employment-tribunal/). She was eventually allowed to submit only a ‘Best of’ as evidence, which was still around 5 hours long and, as the Tribunal had the grace not to say, probably sufficient to induce narcolepsy in horses.
Next Ms Vaughan, obviously developing a taste for litigation, claims at the High Court for libel under the Protection from Harassment Act 1997 on the alleged basis that her colleagues had made defamatory statements about her which amounted to harassment and had thereby caused her to be dismissed.
The High Court held that that there were “cogent considerations in favour of the ET proceedings being dealt with first“, including that the Tribunal was the obvious place for the resolution of claims relating to employment and (more selfishly) that they didn’t want Ms Vaughan to use the High Court as a means to circumvent the Tribunal’s ruling and air her 39 hours’ worth of covert recordings after all. One suspects that the Hon Mrs Justice Sharp was not unhappy to conclude that it would be “just and convenient” for the Tribunal to continue with the claim. Ms Vaughan also tried to obtain an injunction to prevent the Respondent’s witnesses from making statements in the Tribunal that would amount to libel or harassment – this too was refused.
Ms Vaughan having failed on all counts, a brave Tribunal Judge exercised his discretion and made a costs award against her for a whopping £87,000. Ms Vaughan appealed the decision on a number of points including that a deposit order had not been sought, a costs warning letter not issued, she was unrepresented and (my particular favourite) that the Respondent witnesses had committed perjury.
During the hearing Ms Vaughan claimed that there was a mass conspiracy within the Respondent organisation, but sadly she had absolutely no evidence to support this. All in all, the Tribunal could do nothing but find that her claim was so wholly misconceived that a costs order should be made. The EAT agreed (some might say it’s a conspiracy…).
Upholding the Tribunal’s decision, the EAT found that whether or not the Respondent had made an application for a deposit order or put the Claimant on notice that she could be liable for its costs was, in this instance, irrelevant. The key factor seemed to be that even if a costs warning letter had been issued to Ms Vaughan, she was so entrenched in her position that it would not have “caused the scales to fall from her eyes“. Ms Vaughan’s rejection of a staggering £95,000 offer of settlement (for which she is probably now kicking herself) does rather hint at the fact that she was going to take it all the way, whatever the cost, or indeed the merits, of her claim.
The EAT found that a Claimant being unrepresented in a claim should indeed be a relevant consideration for the Tribunal when exercising a costs discretion. However, in this case it was not the Claimant’s lack of ability as a litigant in person that meant that she had pursued her flawed claim but “her fundamentally unreasonable appreciation of the behaviour of her employers and colleagues“.
It must be said that the EAT has made a sensible decision, however harsh it might seem to some. Claimants should not be immune from costs orders just because they are unrepresented. Neither should it be the responsibility of the Respondent’s solicitor to advise the Claimant of the merits of the claim or make an application for a deposit order, which could by itself prolong the matter and increase costs, just to reiterate that the claim has little prospect of success.
This case does not of course mean that employers facing weak Tribunal proceedings should be rubbing their hands with glee and taking their lawyers out for lunch whilst the clock keeps running (though of course I wouldn’t want to discourage this), all in the belief that the Claimant will pick up the tab. This case was very fact-specific and Judges will generally be sympathetic to a Claimant – but it is a reminder that Claimants cannot pursue unmeritorious claims with the complete impunity which the Press sometimes suggests.
So what next for the beleaguered Ms Vaughan? She has some claims which remain outstanding although I suspect she might now more seriously consider any settlement offers which come her way. Rumours that John Grisham wants to write the screen play and Judi Dench has her eye on playing the Hon Mrs Justice Sharp are entirely untrue. Probably.