EAT Practice and Procedure : Costs – Employment Tribunal’s refusal to recuse itself from hearing costs application having reached view as to the Claimant’s credibility at earlier liability hearing. Whether award of andpound;10,000 costs excessive.
Dismissing the Appeal:
The Employment Tribunal had been entitled to express its views as to the Claimant’s credibility in its earlier judgment on liability and, in so doing, to have regard to the wider background evidence relating to the Claimant’s approach to litigation against his employer. The Tribunal had not over-stepped the mark in terms of how it had expressed those views and there was no proper basis on which it obliged to recuse itself from hearing the subsequent costs application (principles laid down and approved in Ansar v Lloyds TSB Bank plc [2007] IRLR 211 applied).
Furthermore, the language used by the Tribunal in its judgment on liability did not amount to an expression of a concluded view as to any later application for costs. This case was not on all fours with Oni v NHS Leicester City (formerly Leicester City Primary Care Trust) [2013] ICR 91 EAT.
The Tribunal was not guilty of taking into account irrelevant factors and had not put the administration of justice before the principle of fair hearing. It had done no more than recognise the point (recognised in Ansar) that it was obliged to judge the case before it and was not to be de-railed from that task by unmeritorious allegations of bias. Equally, it had not fallen into the trap of visiting the sins of the representative onto the party: the Tribunal had clearly had regard to the conduct of the Claimant and expressly not to the conduct of his former representative. As for the amount of costs awarded, that sum was a small fraction of the costs actually incurred by the Respondent. Although not obliged to do so, the Tribunal had regard to the Claimant’s ability to pay and the amount of costs awarded was firmly within its discretion of the Employment Tribunal.
Eady QC HHJ
[2014] UKEAT 0172 – 12 – 1504
Bailii
England and Wales
Employment
Updated: 16 December 2021; Ref: scu.534228