Occupational stress - tactics under QOCS
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D v City and County of Swansea [2016]
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In Qualified One Way Costs Shifting (‘QOCS’) cases, the balance of negotiating power has moved towards the Claimant, with a Claimant only being exposed to the risk of having to pay a Defendant’s costs in the event that the claim is either struck out or the claim is found to be ‘fundamentally dishonest’ or in relation to a Part 36 Offer. The reduction in the risk to a Claimant has reduced the pressure on Claimants to consider discontinuance at appropriate stages. There is much less to be lost for a Claimant in proceeding as far as their solicitors allow along the course of the proceedings without seriously considering discontinuance.
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As far as a Defendant is concerned, whilst a Defence may have reasonable prospects, it is dissatisfying for a Defendant to know that even if it wins at Trial, it will still have to pay for its own costs, save for in the limited circumstances referred to above.
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Whilst discontinuance is a good result for a Defendant of course, if this occurs at a late stage in the proceedings, a Defendant will have incurred costs that it will not be able to recover from a Claimant. So as far as a Defendant is concerned, an early discontinuance before it has incurred costs is often going to be the best resolution to a claim (especially where there is no fundamental dishonesty element). However, the tactics that can be employed by Defendants to press for early discontinuance are limited because of the operation of QOCS.
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In this case, a strong stance from City and County of Swansea and the best use of the limited tactics available enabled the obtaining of a discontinuance in what would have otherwise been a very costly case for the Council.
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There were also some interesting disclosure issues in this case involving email accounts which were dealt with which had an impact upon how the claim proceeded.
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Allegations
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The Claimant alleged that he had been subjected to occupational stress in his employment with the Council as a Senior Facilities Manager, which resulted in him suffering from psychiatric symptoms. Essentially, he alleged that his workload was such that over a 4 year period, he had to work 12 hour days, on the weekends and evenings regularly and worked from home by accessing his emails. In addition, he alleged that he had had to take on tasks that were over and above those duties of his job description.
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The Claimant alleged that his claim was worth over £400,000 as he had left the Council’s employment under a voluntary redundancy and remained out of work because of his psychiatric condition. The Claimant was in his forties and was in a reasonably well paid job, and so had a significant claim for ongoing loss of earnings and pension.
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Part 18 request
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A detailed Part 18 Request was raised for specific dates, details and names of witnesses in relation to numerous of the allegations that the Claimant made. This proved to be a worthwhile tactic as it required the Claimant to provide further details, which then enabled the obtaining of evidence that disputed the detail of what he was alleging. This ranged from minor errors in dates and sequences of events to identifying witnesses who, when spoken to, did not support his version of events.
In particular, the Claimant had identified in his Particulars of Claim that he used to be called on the weekend by the security desk with work queries. It was asked of him to identify which of the 12 or so security staff did this, and in response he provided the names of 4 Officers. Those Officers denied that they had called him on the weekends and further identified that they could not have done so as they did not have his telephone number. In addition, the logged calls from the security desk over the relevant period did not include any calls to his personal telephone numbers.
Whilst this tactic did have the effect of increasing the number of Witness Statements that were obtained, which increased costs, it did enable the Council to comprehensively cover all of the allegations that it faced and undermine the Claimant’s credibility in relation to much of the detail that he had provided.
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Disclosure of e-mail account
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The Council had retained the Claimant’s email account, and this was highly relevant to the workload issues. The availability of the email account meant that it was going to be possible to identify whether the Claimant was responding to emails ‘out of hours’ from home and to provide a feel of his workload and the type of pressures that he was under. In addition, it provided some clarity in relation to some specific events/issues that he alleged put him under particular pressure.
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However, one of the difficulties with the email account was its volume; it comprised 97 folders and 33,626 items over a 6 year period. This volume meant that it was impossible, from a cursory consideration, to get a gauge of whether it supported any of the Claimant’s allegations. Further, it would be wholly disproportionate for the parties to have considered each and every email.
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The Claimant’s Solicitors pressed for the whole email account to be sent to them so that they could go through it with their client to identify relevant emails. This was strenuously opposed on the basis that it was the Council’s document to disclose and that the process needed to be carefully managed so that costs did not spiral out of control. In addition, of course, control of the email account wanted to be kept and the opportunity to be able to view the email account before any disclosure to the Claimant.
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A staged approach was proposed. A chronological list of the emails (which comprised 3 lever arch files) be provided to the Claimant (without the availability for him to actually go into any of the emails). From that list, the Claimant would identify those emails that he considered were relevant to the issues in the case, with a view to those emails being disclosed. In addition, it was proposed that all emails sent ‘out of hours’/whilst he was on leave should also be disclosed. At that point, the parties could then review if further disclosure needed to be considered.
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This issue was aired at a Costs and Case Management Conference, and the Judge agreed that this staged approach was appropriate to enable the parties and the Court to get a feel of what the email account contained in a staged and proportionate manner.
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It was considered that this staged approach would work to the Council’s advantage. On consideration of the chronological list, it appeared that the Claimant had sent quite a lot of emails ‘out of hours’. However, more detailed consideration of the number and the individual emails revealed that this was not done to the extent to which he was alleging. In addition, the majority of those emails that he did send ‘out of hours’ were unnecessary, non-urgent, not progressing matters and often just forwarding the email on for someone else to action. There were very few examples of emails sent ‘out of hours’ of any substantive/urgent nature that could not have waited until the following day to be dealt with.
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Tactics
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In a QOCS case like this, in which the Council’s own costs in proceeding to what would have been at least a week’s Trial would have been over £100,000, the economics of the situation can start to have an impact upon the decision making process.
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At an early stage in this claim, an extremely low global offer (to include damages and costs) was put forward by the Council, which was rejected by the Claimant. At that point, it was made clear to the Claimant that this offer was being put forward purely with a view of trying to dispose of the matter before the Council had started to incur significant costs. In particular, it was identified that it would only be on the table at that early stage and would not be available further down the line in the proceedings when significant further costs would have been incurred. As the offer was rejected, it was subsequently withdrawn so that it was no longer available for acceptance.
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Fundamental dishonesty
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The difficulty in most cases involving a Claimant who suffers with a psychiatric injury is that the Claimant’s perception of events is usually distorted by the psychiatric condition that they suffer from. In this case, the Council’s medical expert identified that the Claimant was already developing a psychiatric condition by the time of the alleged stress at work due to other factors, and this then had an impact upon his perception of what was going on at work and caused him to be unable to deal with the ordinary everyday requirements/pressures of the job.
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In such circumstances, it is always going to be difficult for a Defendant to allege fraud or to persuade the Court that there is fundamental dishonesty, as a Court is more likely to decide that any inconsistencies and/or disputes in perception of events is as a consequence of a Claimant’s psychiatric condition as opposed to an intentional fabrication on a Claimant’s part.
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In relation to much of the evidence in this case, this was probably the case. However, arising out of the Part 18 Requests that were raised of the Claimant, it had enabled the drawing together of some evidence which, in our view, potentially took the claim into being within the arena of fabrication/fraud. The security guard evidence and the email evidence which disputed/disproved some of the facts being relied upon by the Claimant indicated that it was not simply the case of the Claimant’s perception of events being wrong, but potentially of the Claimant making up evidence to support his claim.
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Whilst it was not considered that the strength of evidence put the Council into a strong enough position to plead fraud, it was considered that a fundamental dishonesty finding by the Court, if the matter went to Trial, could not be completely ruled out.
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A decision, therefore, was taken upon a three pronged approach to put pressure on the Claimant to discontinue the claim as follows:
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The Council disclosed its expert psychiatric evidence on a without prejudice basis before required under the Court Directions to do so. This was a risk because this was at a point before exchange of witness evidence, so, if the matter continued, this would have given the Claimant the opportunity to prepare his Witness Statement with the Council’s medical expert evidence in mind. However, the Council’s expert evidence potentially provided the Council with a full defence due to other stresses in the Claimant’s life being the cause of his psychiatric condition, which then prevented him from being able to cope with what were the normal stresses in his job.
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The Claimant was invited to discontinue the claim.
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It was identified to the Claimant’s Solicitors that a discontinuance at this stage would avoid the risk to the Claimant of an adverse costs order against him in relation to any potential finding of fundamental dishonesty if the matter proceeded further. This was a point that was considered appropriate to make due to the documentary and witness evidence that had been able to be garnered, which, if accepted by the Court, could have led to such a finding. It was identified to the Claimant’s Solicitors that it could not be identified to them the detail of this evidence as Witness Statement exchange had not yet taken place and, for obvious reasons, the Council did not wish to show their hand until exchange had taken place.
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Outcome
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The Claimant put forward a very low global offer at this stage that was close to the low offer that the Council had made at a very early stage. Whilst that offer had some economic attraction due to the likely substantial outlay if the matter proceeded to Trial and had the Claimant won, by that point significant costs had been incurred since the initial low offer had been put forward.
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The Council’s instructions were to stand firm, and this paid off. The Claimant agreed to discontinue. Whilst the Council had to bear its own costs, this was, in the circumstances, the best outcome that realistically could have been reached, as winning at Trial would have resulted in the Council having to bear the costs of a week’s long Trial, and the prospect of a fundamental dishonesty finding was at best slim, with there always being a risk of the Claimant succeeding at Trial.
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Consequently, a combination of thorough evidence collation and pressure tactics at the most opportune point in the proceedings resulted in a ‘win’ for the Council, with the Council’s costs at a significantly lower level than if the matter had proceeded to Trial.
