In Griffin v. New Hampshire Department of Employment Security,
The plaintiff, James Harkeem, does not appear before this court for the first time. Part of the facts of this case have been previously recounted in Harkeem v. Department of Employment Security,
During the pendency of the litigation of the plaintiff’s September 1973 claim, Mr. Harkeem found new employment at the Abington Shoe Company in Newmarket, New Hampshire. This employment was terminated in May, 1974, after a three-month trial period, and Mr. Harkeem again filed for unemployment compensation benefits. This claim, which is the subject of the instant action, was denied by a certifying officer of the defendant, and by its appeal tribunal in June 1974. The sole basis for the denial was the same as that which supported the rejection of Mr. Harkeem’s previous claim: that his voluntary retirement in March, 1973, cancelled the wage credits he had earned in his previous thirty-five years of employment, leaving him with insufficient credits to qualify for benefits.
Action on this second claim was held in abeyance at the trial court level by agreement of the parties pending this court’s decision on the question of law presented by the plaintiff’s first claim, which was also controlling in the second. When the decision in the plaintiff’s favor was rendered, a request was made by his counsel to the defendant that benefits be paid for the second claim period. The defendant refused, and a hearing was held in superior court on May 27, 1976. At that hearing, the defendant no longer pursued the wage credit question, as that issue had been conclusively settled against it. Instead the department sought to raise the entirely new ground that the plaintiff had failed to sufficiently expose himself to employment, as required by RSA 282:3 C. The Trial Court (Bois, J.) found that “the State of New Hampshire had no evidence whatsoever to indicate that there were any grounds
Exceptions to the general rule that parties pay their own counsel fees have been judicially fashioned in the past. See Guay v. Association,
Underlying the rule that the prevailing litigant is ordinarily not entitled to collect his counsel fees from the loser is the principle that no person should be penalized for merely defending or prosecuting a lawsuit. An additional important consideration is that the threat of having to pay an opponent’s costs might unjustly deter those of limited resources from prosecuting or defending suits. Tau Chapter v. Durham,
Where an individual is forced to seek judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention, an award of counsel fees on the basis of bad faith is appropriate. Comment, Court Awarded Attorney’s Fees and Equal Access to the Courts, 122 U. Pa. L. Rev. 636, 661 (1974). Comment, 8 Conn. L. Rev. 551, 554-55 (1976). This principle, which merely shifts the cost of what should have been an unnecessary judicial proceeding to the responsible party, has long been recognized in New Hampshire in a related line of cases wherein attorneys’ fees have been awarded on the basis of the courts’ power to enforce their own decrees. See, e.g., Manchester v. Hodge,
An unemployment compensation claimant is usually an individual without financial resources to cover litigation costs. Plaintiff’s right to benefits was clearly established by RSA ch. 282, and by our decision in Harkeem v. Department of Employment Security,
RSA 282:5 C (6), which deals with decisions of the department’s appeals tribunal, requires that a written decision be prepared in all cases, setting forth “all the material findings necessary to support the [tribunal’s] conclusions” and determining “all things necessary to dispose of the case.” The statute specifies that “[t]he decision of an appeal tribunal shall be deemed to be the decision of the commissioner of the department of employment security for all subsequent actions in connection therewith.” (Emphasis added.) It is provided that the decision “shall become final” upon the expiration of the tenth day following its mailing to the plaintiff. RSA 282:5 C (5). Although the decision may be reopened upon request of an interested party or upon the commissioner’s own initiative, the legislature has expressly limited the further hearing to the introduction of evidence or argument “relative to and concerning the factors which constitute the basis of grounds for the reopening.” RSA 282:5 E (2).
Had the question of the scope of the superior court’s review never before been raised the defendant could argue that it could not be found to be in bad faith herein, for it would be entitled to rely on its argument that the term “de novo” in RSA 282:5 G(3) authorized it to raise new grounds before the superior court. However, prior case law from this court has conclusively settled the question. In Chaisson v. Adams,
Accordingly, the department, knowing that it was limited to its own stated reasons for denying Mr. Harkeem’s claim, had no valid reason to deny the plaintiff benefits after this court’s ruling of November 28, 1975. Its obdurate pursuit of further fruit
Exceptions overruled.