Kaur v John L Brierley Ltd

In an Employment Tribunal costs dispute, a renewed application for permission to appeal should not necessarily be refused or granted immediately. Where the case presents unusual features, including a costs order made by a different tribunal and an apparent error extending the order to costs incurred on appeal, the proper course may be an inter partes hearing with the respondent represented. An Employment Tribunal’s costs jurisdiction is confined to costs incurred in that tribunal and does not extend to costs incurred in an appeal. Withdrawal of an untested claim may nevertheless provide a procedural basis for considering costs. A party pursuing such an application in the Court of Appeal should be warned that the usual costs rule remains applicable.

Miss Kaur brought an Employment Tribunal complaint against her employer concerning unlawful deduction of wages. After an unsuccessful appeal against an interlocutory ruling, she withdrew the claim. The Employment Tribunal dismissed the claim on withdrawal without making a costs order.

A different Employment Tribunal later ordered Miss Kaur to pay the respondent’s costs, including costs incurred in the Employment Appeal Tribunal. The Employment Appeal Tribunal dismissed her appeal against that order. A single Lord Justice subsequently refused permission to appeal on the papers. The present matter was a renewed application for permission to appeal together with an application for an extension of time. The central issue was how those applications should proceed in light of the unusual costs order and the apparent jurisdictional error.

Lord Justice Mummery adjourned the renewed application for permission to appeal and the application for an extension of time. He neither granted nor refused permission at that stage.

1. The dispute concerned costs only. Costs orders against unsuccessful applicants were very unusual in Employment Tribunal proceedings, and it was particularly unusual for the order to be made by a different tribunal from the tribunal that had dismissed the complaint.
2. The fact that the claim had been withdrawn rather than dismissed after a contested hearing could provide some justification for the procedure. In other legal proceedings, a claimant who discontinues may be ordered to pay costs.
3. It was common ground that the costs order contained an error to the extent that it included the respondent’s costs in the Employment Appeal Tribunal. An Employment Tribunal’s jurisdiction was confined to costs incurred in that tribunal and did not extend to costs incurred on appeal.
4. Those matters made it appropriate for the applications to be considered at an inter partes hearing at which the respondent was represented. If permission were granted, the substantive appeal was to be heard immediately afterwards.
5. The hearing was directed to be before three Lords Justices, at least one of whom had previously sat in the Employment Appeal Tribunal, with a three-hour time estimate. The applicant was warned that, if unsuccessful, the normal rule in the Court of Appeal would ordinarily require the losing party to pay the successful party’s costs. The costs of the applications were to be costs in the application.

• Court of Appeal (Civil Division) — In [2001] EWCA Civ 1771, the renewed application for permission to appeal and the application for an extension of time were adjourned for an inter partes hearing.
• Employment Appeal Tribunal — The appeal against the costs order made on 18 May 2000 was dismissed on 27 April 2001.
• Employment Tribunal — The original claim was dismissed on withdrawal on 11 April 2000 without an order for costs. A different tribunal later made the costs order on 18 May 2000.
• Employment Appeal Tribunal — An earlier appeal against an interlocutory ruling was dismissed on 26 January 2000.