This was a decision of the tribunal on costs after the substantive case was ruled out of time and also that the tribunal had no jurisdiction in the matter. 

The respondent’s solicitors had written to the claimant’s solicitors notifying them of their belief that the claimant was pursuing his claim in an ‘unreasonable and vexatious manner’ and that a refusal to withdraw the claim would result in a claim for recovery of costs. 

The tribunal considered, the meaning of ‘vexatious’ and ‘unreasonable’ and reminded itself of the exceptional nature of such an order due the inherent element of ‘bad faith’ that must be proved. The tribunal also referred to itself of the proper procedure it must follow as laid down in Khan v Kirklees BC (2007) EWCA Civ 1342 whereby a tribunal must decide:

(1) whether the claimant acted unreasonably and/or vexatiously in the bringing or conducting of the tribunal proceedings and/or the bringing and/or conducting of the proceedings was misconceived; and
(2) whether or not it is appropriate to exercise discretion to award costs in the particular circumstances of the case.

The tribunal was satisfied that the claimant had conducted the proceedings unreasonably. Two salient reasons contributed to this finding. Firstly, the claimant made serious allegations against nine senior members of the respondent which he then failed to pursue in cross examination. 

This was augmented by the fact that his witness statement made no reference whatsoever to him being harassed or threatened. Secondly, any potential protected disclosure made by the claimant had, as its dominant or predominant purpose, the ulterior motive of undermining a Professor who worked at the University. The tribunal ordered the claimant to pay costs to the respondent in the sum of £5,000.

Practical lessons

Whilst exercised infrequently and always with caution; this case demonstrates the utility of a costs order in appropriate circumstances. Discouraging the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents is the rationale behind the measure, and this case is demonstrative evidence that a tribunal will not be afraid to exercise its powers when justified.