Barnsley Metropolitan Borough Council v Yerrakalva: CA 3 Nov 2011

The claimant had issued claims in discrimination. She withdrew the claim, but still had a costs order made against her. She appealed and succeeded, and the Council now sought re-instatement of the costs order.
Held: The Court made clear the rules for intervening in a costs decision and did in fact intervene, reaching different conclusions from the ET and the EAT, but reasserted the principles that it would be unusual for there to be an intervention. Dosts are in the discretion of the Employment Tribunal and the Employment Tribunal’s powers to order costs are more sparingly exercised and are more circumscribed by the Rules of Procedure than those of the ordinary Courts; and that an Employment Tribunal Costs Order is the exception rather than rule.
Mummery LJ said: ‘I begin with some words of caution, first about the citation and value of authority on costs questions and, secondly, about the dangers of adopting an over-analytical approach to the exercise of a broad discretion.
The official words of [Rule 40] are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations. Unfortunately, the leading judgment in McPherson delivered by me has created some confusion in the ET, EAT and in this Court. I say ‘unfortunately’ because it was never my intention to re-write the Rule, or to add a gloss to it, either by disregarding questions of causation or by requiring the ET to dissect the case in detail and compartmentalise the relevant conduct under separate headings, such as ‘nature’, ‘gravity’ and ‘effect’. Perhaps I should have said less and simply kept to the actual words of the Rule.
The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by a claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submission to the Court that, in deciding whether to make a Costs Order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific cost being claimed. In rejecting that submission, I had no intention of giving birth to erroneous notions, such as that causation was a relevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.
In the matters of discretion an earlier case only stands as authority for what are, or what are not, the principles governing the discretion and serving only as a broad steer on the factors covered by the paramount principle of relevance . .’
Mummery, Patten LJJ, Sir Henry Brooke
[2012] IRLR 78, [2012] ICR 420, [2012] 2 All ER 215, [2011] EWCA Civ 1255
England and Wales
Cited by:
CitedRaggett v John Lewis Plc EAT 17-Aug-2012
In determining the amount of costs to be awarded having decided that the bringing of an unfair dismissal claim was misconceived and that a costs order should be made . .
CitedVaughan v London Borough of Lewisham and Others (Practice and Procedure : Costs) EAT 6-Jun-2013
EAT Practice and Procedure : Costs – Tribunal orders that Appellant should pay Respondents one-third of their costs (estimated prior to assessment at andpound;260,000) on the basis that the claim was misconceived . .
CitedSt Andrew’s Catholic Primary School and Others v Blundell (Practice and Procedure – Costs) EAT 10-May-2013
Appeal concerning the refusal of an Employment Tribunal to award costs, largely on grounds that (1) an underlying finding of the Tribunal was perverse and (2) the Tribunal . .

These lists may be incomplete.
Updated: 18 March 2021; Ref: scu.448131