PRACTICE AND PROCEDURE – Costs
Costs – Rule 76(1) ET Rules 2013
Having dismissed the Claimant’s claims after a Full Merits Hearing, the ET went on to order that the Claimant pay costs of pounds 5,200 towards the sums incurred by the Respondents (over pounds 29,000). In making that award, the ET had regard to the fact that the Claimant had previously pursued two claims in the ET, which had also included claims of unlawful discrimination, and had faced a previous costs award; in the present case, not only had the Claimant unreasonably pursued claims that had no reasonable prospect of success so as to engage the ET’s costs jurisdiction under Rule 76(1), it was appropriate to make an award of costs in the sum of pounds 5,200, which was set at a level that the Claimant might be expected to be able to pay and also that would cause her to consider carefully before pursuing any further ET claims. Upon the Claimant applying for the ET to reconsider its Judgment, in part because it had wrongly taken into account the need to deter her from pursuing claims when making the costs award, the ET confirmed its earlier decision but said it was merely expressing a hope – not setting out its reason for making the costs award – when it referred to any future deterrence.
The Claimant appealed the original Costs Judgment.
Held: allowing the appeal
The ET’s reasoning expressly stated that, when determining whether it was appropriate to make an award of costs and, if so, as to the level of that award, its award was at least in part informed by reference to what would cause the Claimant to consider carefully whether to bring any future claims (i.e. so as to act as a deterrence). That had been an improper consideration and had thus tainted the ET’s exercise of its judicial discretion. Although the ET had re-visited this issue in its Decision on the reconsideration application, that could not be read as a clarification of its earlier reasoning and it would not be appropriate to seek to make good the error in the original Decision by reference to the Reconsideration Judgment. That said, the Reconsideration Decision did make clear the other bases on which the ET had considered it appropriate to make a costs award in this case and that meant that the real issue was as to the appropriate level of that award absent any consideration of deterrence. In the circumstances that issue would need to be remitted to the ET for further reconsideration.
Judges:
Eady QC HHJ
Citations:
[2017] UKEAT 0031 – 17 – 0507
Links:
Jurisdiction:
England and Wales
Employment, Costs
Updated: 29 March 2022; Ref: scu.593137