2013-UNAT-370, Bi Bea
UNAT vacated UNDT’s award of CHF 5,000. UNAT held that, while UNDT had the power to award costs for manifest abuse of proceedings before JAB, UNDT erred in finding that the Secretary-General’s delay in responding to the JAB report constituted a manifest abuse of proceedings. UNAT held that the delay in question was not inordinate and, in any event, a delay in and of itself, did not constitute a manifest abuse of proceedings. UNAT held that, before UNDT could lawfully award costs against the Secretary-General, it was necessary to determine on the evidence that the delay constituted a wrong or improper use of the proceedings of the court, such as proof that it was “frivolous or vexatious” to qualify as manifest abuse of proceedings. UNAT upheld the appeal and vacated the award of costs of CHF 5,000.
After having waited several months and having received no response from the Secretary-General on JAB’s recommendation that the staff member be paid compensation for the termination of his indefinite appointment, the staff member filed an appeal seeking the implementation of the recommendations of JAB. UNDT held that, in the absence of any reason given by the Secretary-General for the delay, it was a manifest abuse of the proceedings which entitled the staff member to an award of costs.
A delay, in and of itself, is not a manifest abuse of proceedings. It is necessary to determine on the evidence that the delay was clearly and unmistakably a wrong or improper use of the proceedings of the court. Proof that the delay was frivolous or vexatious would satisfy this requirement.