The EAT has upheld an employment tribunal’s decision that the inability of a litigant in person to properly particularise their claim constituted unreasonable conduct justifying an award of costs in favour of the respondent.
The employment tribunal had recognised that the standard of pleading expected of a lawyer did not apply to a litigant in person, although a litigant in person should still be able to articulate the basis of their complaints in lay person’s terms, together with relevant dates. The claimant had been given several opportunities at preliminary hearings and in correspondence to provide the required information but had failed to do so. That lack of preparation amounted to unreasonable conduct, justifying a costs award. (Liddington v 2gether NHS Foundation Trust UKEAT/0002/16.)
Ms Liddington (the claimant) was a community practitioner working for 2gether NHS Foundation Trust (the respondent). Ms Liddington complained that, after making a safeguarding referral in relation to a patient care issue at a private care home, she was subjected to a number of detriments by the respondent and ultimately dismissed. Ms Liddington had sought to categorise the safeguarding referral as a protected disclosure. She brought various complaints as a litigant in person, including complaints of constructive unfair dismissal, religious discrimination and whistleblowing.
The claims were not regarded by the employment tribunal as adequately particularised and, over the course of a number of preliminary hearings and in correspondence, attempts were made by three employment judges to assist Ms Liddington to do so.
On 12 May 2015, a preliminary hearing was held to consider an application from the respondent to strike out the complaints or alternatively for deposit orders to be made. The tribunal declined to make any orders at this hearing and instead gave Ms Liddington a final opportunity to provide the relevant particulars.
At a further preliminary hearing on 3 June 2015, to again consider the strike-out and deposit order applications, certain claims were dismissed upon withdrawal and the remaining claims were further clarified. There was insufficient time to deal with the strike-out and deposit order applications. Furthermore, the tribunal was unable to deal with one aspect of the application in any event as relevant documents were not available. The tribunal did not assign blame to either party for the hearing being ineffective.
A third preliminary hearing was listed for two days beginning on 17 August 2015 to consider the respondent’s applications for strike-out or deposit orders. The tribunal concluded that the remaining complaints had no reasonable prospects of success and made deposit orders in relation to each complaint as a condition of continuing with the claims. Ms Liddington failed to pay the deposit orders and eventually (after a rather convoluted procedural history) the remaining complaints were also dismissed upon withdrawal.
The tribunal ordered Ms Liddington to pay the respondent its costs in respect of the wasted hearing of 12 May 2015. Ms Liddington appealed.
Costs awards in the Employment Tribunal are relatively rare. Nevertheless, this case serves as a useful reminder that litigants in person are not exempt from the requirement to put their case in a form that can be properly responded to. Whilst the tribunal will endeavour to be as helpful as possible, litigants in person must still adequately prepare their complaints.