(1) Mr B Churchill (2) Mr Z Nuseibeh (3) Mr O Diallo v Floreat Capital Markets Ltd — 2019

This judgment was confined to costs. The tribunal had before it three joined claims, but the merits hearing was still listed for January 2020. The costs dispute arose because the respondent had been unable to file its ET3 on time while the parties debated whether Mr Diallo, who was both a claimant and a director/shareholder of the respondent, had consented to Mr Otaibi conducting the defence.

The tribunal found that Mr Diallo acted unreasonably in failing to give a clear and unequivocal consent to Mr Otaibi defending the Employment Tribunal proceedings and in failing to agree to an extension of time for the ET3. It held that the issue was not one of authorising a conflicted transaction under Article 11 of the Articles of Association, but simply whether the respondent could defend the tribunal claims, and it rejected the Article 11 argument as a last-minute attempt to justify Mr Diallo's position. The tribunal also found that the respondent's Articles required decisions by majority, so Mr Otaibi could not defend the case alone.

Applying Rule 76 and the authorities on unreasonable and vexatious conduct, the tribunal decided that Mr Diallo's conduct caused unnecessary additional costs by leading to an extra case management hearing and this costs hearing. It therefore awarded costs against him in favour of the respondent and the interested party. The respondent recovered £6,000, made up of £5,000 plus VAT, and Floreat Holding Ltd recovered £14,400, assessed as £12,000 plus VAT after the tribunal considered the work done, the rejected £8,000 offer, and the comparison with the claimants' own costs figures.