Mrs Zohra Amri-Khellaf v Evergreen Homecare Services Ltd (formerly SureCare Barnet Ltd) — 2021

This was a reserved judgment on the respondent’s application for costs in relation to the second claim, 3323856/2021. The tribunal recorded that the second claim was materially the same as the first claim, which had been dismissed after the claimant failed to comply with an unless order, and that the claimant had not applied to set that dismissal aside, for reconsideration, or to appeal it. The second claim was presented on 27 December 2021 and was withdrawn at a public preliminary hearing on 10 October 2022.

Applying rule 76(1)(a) and, if necessary, rule 76(1)(b), together with authorities including AQ Ltd v Holden, ET Marler Ltd v Robertson, Scott v Russell, Dyer v Secretary of State for Employment, Yerrakalva v Barnsley Metropolitan Borough Council, McPherson v BNP Paribas (London Branch), Vaughan v London Borough of Lewisham, Arrowsmith v Nottingham Trent University and Mardner v Gardner, the tribunal found that the claimant acted vexatiously, abusively and otherwise unreasonably in bringing and pursuing the second claim until the preliminary hearing. It held that, after receiving EJ O’Rourke’s reasons in the first claim, the claimant must have known that simply presenting the same claim again had no realistic prospect of success.

On quantum, the tribunal accepted that the respondent had reasonably incurred costs since the second claim was presented, including counsel’s fees of £3,720 and solicitors’ fees of £9,820.40, but it adjusted the solicitor time on a summary basis and would otherwise have awarded a little over £11,500. It heard evidence about the claimant’s means, including her age, part-time work, pension income, rent, debts, medical condition and possible future interest in a flat through divorce proceedings, and concluded that she had difficulty making an immediate payment much above a few hundred pounds but that there was a realistic prospect of future payment. Balancing means and proportionality, the tribunal ordered the claimant to pay £6,000 in costs.