21 In this instance the applicant has asserted that the employer failed to make any careful assessment of the strengths and weaknesses of its case. According to the applicant, it therefore followed that the applicant's success, particularly in obtaining Orders for compensation that exceeded the amounts offered at settlement, should provide justifiable basis for the granting of costs Orders in the applicant's favour. It would seem that the Authority established in the Judgement in Four Sons would provide significant support for the applicant's proposition in this respect.
22 However it is necessary to recognise that the applicant engaged legal representation at some point in time following the unsuccessful conciliation and before the matter came on for Directions before the Hearing. The employer was unrepresented throughout the proceedings. Therefore the employer's assessment as to the strengths and weaknesses of its case must be made, having cognisance of the employer being unrepresented, whilst the applicant had engaged Counsel.
23 It is therefore important to note that Mr Singh stressed that he had not been approached by the applicant's Counsel, in respect to the prospects for any further pursuit of settlement. In such circumstances, it is difficult to predict what may have happened, had there been some formal communication, perhaps in the form of a Calderbank style letter made to the employer prior to the Hearing. In this vacuum, the inexperienced and unrepresented employer appeared to assume that no further contemplation of settlement could be undertaken.
24 Therefore in such circumstances it would seem that the applicant's representative had not properly tested the employer's position on the question of settlement. Consequently it would seem that a finding that the employer, in these circumstances, had unreasonably failed to agree to a settlement of the claim could only be fairly made, if the applicant's legal representatives had formally tested the employer's position.
25 Having regard to the absence of any proper testing of the employer's alleged intransigence in respect to settlement of the claim, and combined with a statutory regime that establishes that costs are the exception, rather than the rule, it would seem that before the legally represented Party could properly establish that the other side, unrepresented, had unreasonably failed to agree to a settlement of the claim, that proper formal testing of the pursuit of settlement by way of a Calderbank style letter would be necessary.
26 It should also be noted that no criticism can be made of the employer's conduct in respect to proceedings before the Commission, as distinct from the findings made in respect to the primary determination of this matter. As Mr Singh submitted, at no time did he attempt to delay or otherwise frustrate proceedings. Mr Singh appeared as respectful and courteous at all times and this display of commendable conduct assists his defence against a finding that he acted unreasonably in respect to the pursuit of settlement. I am persuaded to accept that, in the absence of any approach from the applicant's representative, Mr Singh genuinely believed that no further exploration of settlement was available after the Directions proceedings and up to and including the Hearing.
CONCLUSIONS
27 The application for costs made by the successful applicant in this unfair dismissal claim has logically involved an examination of the conduct of the Parties in the pursuit of settlement. There were no significant contests about the factual basis for Determination of the question of costs.
28 The applicant has sought that the Commission should find that the employer's conduct in the pursuit of settlement represented an unreasonable failure to agree to a settlement of the claim.
29 Having carefully considered the evidence and assessed the uncontested factual position against the Authorities and relevant Principles that should be applied to a costs application such as this, the Commission must conclude that the applicant's claim for costs should fail.
30 In particular, given the respective position of the Parties, vis-a-vis the applicant being legally represented, whilst the employer was unrepresented, the applicant should have properly tested the alleged intransigence of the employer on the question of settlement. In the absence of something akin to a Calderbank letter, the applicant will not be entitled to a finding that the employer had unreasonably failed to agree to a settlement of the claim. If, following the conciliation before the Commission, the employer had bluntly rejected some formal offer to settle either at the earlier figures circa $12,500.00, or at some other amount, then the Commission may well have been able to establish that any such rejection represented an unreasonable failure to agree to a settlement of the claim.
31 An examination of the respective positions at the Conciliation before the Commission on 8 June 2004 cannot establish, consistent with the Authority provided by the Decision in Roddenby, any conduct on the part of the employer which could constitute an unreasonable failure to agree to a settlement of the claim. Therefore the Commission is unable to find that the employer, either at the Conciliation before the Commission or in respect to any other conduct, did unreasonably fail to agree to a settlement of the claim.
32 Therefore the Legislative pre-requisite to provide for any Order for costs is unavailable. Consequently the applicant's claim for costs is refused and the proceedings are concluded.