The claimant sought an award for unfair dismissal. A similar case had been decided against another worker, and the respondent warned that it would want its costs. The tribunal gave her a warning that she was at risk of a costs order. She withdrew her case, but then appealed. The EAT said she had been subjected to undue pressure, and ordered a rehearing. The respondent appealed.
Held: The tribunal chairman had apparently given ‘a strong steer’ that the claimant was at real risk of being on the wrong end of a substantial costs order if she went on with the case and failed. At the time, and in such circumstances there was little real probability of a costs order being made against the claimant. It was improper for the Employment Tribunal to have given a costs warning where the likelihood of a costs order did not justify it. However the introduction of the new ground for the award of costs where a pleading was ‘misconceived’ had lowered the standard somewhat. Appeal dismissed.
Scott Baker LJ said: ‘In my judgment a tribunal must be particularly careful not to place unfair pressure on a litigant in person. A party who is legally represented has the opportunity for his representative to put any remarks by the tribunal in context. For example the legal representative can explain the circumstances in which a tribunal is entitled to and may make a costs order . . Against this background the ‘costs warnings’ was unfair. It left [the claimant] in no doubt (and in my judgment would have left any reasonable litigant in person standing in her shoes in no doubt) that if she continued and lost she was at real risk of a substantial order for costs being made against her and that it might well be enforced against her house.’
Sedley LJ said: ‘While plainly there cannot be one rule or legal principle for litigants in person and another for those who are represented . . it does not follow that an employment tribunal is entitled to treat every party as if it had the strength of advice and representation which, for example, Shell (UK) Limited enjoyed in this case. Inexperienced lawyers may not be a match for experienced ones; lay representatives may not be a match for lawyers; some lawyers may not be a match for a clever litigant in person or an experienced lay representative. The tribunal’s job, precisely because it cannot guarantee equality of arms, is to ensure equality of access to its processes for sometimes disparately powerful parties. This involves making a careful appraisal, case by case of the parties and their respective capabilities. It must also, however, involve ultimate equality of treatment, so that whoever presses on with a doomed case after due warning faces the same risk on costs.’
Simon Browne LJ said: ‘The all important dividing line . . was between on the one hand ‘robust, effective and fair case management’ and on the other ‘inappropriate pressure and unfairness’ . . That line cannot be a sharp one: costs warnings cannot properly be characterised as having applied ‘inappropriate pressure’ or as being ‘unfair’ unless no reasonable tribunal would have given them. Given the obvious need for ‘robust and effective case management’ which might sometimes positively require a costs warning, there must be a wide margin of appreciation (a substantial area of discretionary judgment) open to the tribunal as to when and in what terms the warning should be given. It seems to me that only if it is perfectly plain to the reviewing court . . that the tribunal has overstepped to bounds of propriety will an appeal on this basis succeed.’
Judges:
Simon Brown VP CA, Sedley, Scott Baker LLJ
Citations:
Times 04-Nov-2002, Gazette 19-Dec-2002, [2002] EWCA Civ 1479, [2003] IRLR 82
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Lodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
Cited – Scott v Inland Revenue CA 2-Apr-2004
The employee had claimed damages for unfair dismissal. The Revenue had subsequently changed its policy on retirement, but did not disclose this to the claimant. The change would have altered the calculation of the damages.
Held: A calculation . .
Cited – Drysdale v The Department of Transport (The Maritime and Coastguard Agency) CA 31-Jul-2014
The claimant had been represented at his claim before the employment tribunal by his wife, acting as a lay representative. She asked to be allowed to withdraw the complaint. Without asking her, the complaint was dismissed, and costs awarded against . .
Lists of cited by and citing cases may be incomplete.
Costs, Employment
Updated: 06 June 2022; Ref: scu.177851