The Tribune

By NEIL HARTNELL Tribune Business Editor A RULING by Chief Justice Sir Michael Barnett might deter Bahamian workers with "marginal claims" from pursuing employment cases in the Supreme Court, rather than the Industrial Tribunal, a leading law firm arguing that it dramatically reduces the 'costs' leverage they can exert. Higgs & Johnson, in its latest client bulletin dealing with the award of legal costs in employment actions, said a March 2010 ruling by Sir Michael could "remove a tool from the arsenal of the vexatious litigant" seeking to pressure a company into settlement, as he declined to award legal costs to a wrongfully dismissed employee who one their case. Sir Michael did so on the grounds that the complaint could have been brought before the Industrial Tribunal, which he described as the mechanism created by Parliament for resolving employment-related disputes. Legal costs cannot be awarded by the Tribunal, so the Chief Justice reasoned that the employee should not be entitled to them as a result of taking the matter to the Supreme Court. "It is arguable that the Chief Justice intended to establish a precedent, whereby a claimant should not be entitled to costs in the Supreme Court in relation to an employment matter which could have been alternatively pursued before the Industrial Tribunal," Higgs & Johnson said. But Justice Neville Adderley, in a February 2011 ruling dealing with a case brought by an employee against Bahamas First Corporate Services, indicated that while Sir Michael's ruling had the potential to be interpreted as a general principle in employment-related cases, costs remained within the Supreme Court's - and the judge's - discretion. Oscar Johnson, a Higgs & Johnson attorney and partner who specialises in employment law cases, told Tribune Business that the likelihood of Sir Michael's ruling being taken as a precedent was "not extremely high". He added that he expected most Supreme Court judges to make legal cost award determinations "to make a determination based on the merits of the case", but said Sir Michael's ruling "might cause them to cast an eye" over the strength of the litigation before them. However, Mr Johnson agreed that the main effect would likely be to deter employees, and their attorneys, from using the spectre of cost awards to pursue employment-related litigation through the Supreme Courts, rather than the Industrial Tribunal. "I think it'll have that effect more than anything else," Mr Johnson told Tribune Business. "It will cause attorneys and their clients to pursue the matter before the Tribunal dispute process, rather than before the Supreme Court." Many Bahamian employers, Mr Johnson said, found employee-related issues, especially frivolous ones, "disruptive to their businesses". They had to spend time assembling all the relevant documents to support their case, and give evidence before the court, causing many to say: "Let's see if we can get this thing resolved on a nuisance value basis." Legal costs, Mr Johnson said, could run anywhere from $5,000-$25,000 depending on the nature of the matter involved. Still, he said the Employment Act 2001's passage into statute had helped workplace and industrial relations in the Bahamas by assisting with dispute resolution. "I think that on balance it has helped," Mr Johnson said, "and more matters are resolved without resorting to litigation, as compared to prior to the Employment Act. "I think another beneficial aspect is that it has clarified the formulae to be applied in considering cases of dismissal. Overall, it has been beneficial and quite helpful in setting the parameters of claims, and having claims resolved more quickly, in terms of there being these clear lines to quantify claims. I think it's had a positive effect overall." Summing up the impact of Sir Michael's 2010 ruling, Higgs & Johnson said that previously, "a claimant has had the strategic advantage of pursuing an employment-related claim in the venue which had the potential of exerting the greatest degree of pressure on the other party. "The effect of the legal costs issue has been, to some extent, coercive; a litigant with a less than meritorious claim, or a marginal claim, can readily take advantage of the spectre of a costs award as a tool to obtain a settlement. "This case should provide a strong legal footing moving forward to resist costs awards in employment matters before the Supreme Court. It may therefore lead litigants to pursue their claims before the Industrial Tribunal, thereby reducing the work load on the Supreme Court and removing a tool from the arsenal of the vexatious litigant."