Kaur v John L Brierley Ltd

Costs in Employment Tribunal proceedings are exceptional rather than routine. A claimant who withdraws a claim may still face costs, but the party seeking them must establish conduct falling within Rule 12(1), including unreasonable conduct in bringing or conducting proceedings. Ordinarily, the claimant should provide the particulars of loss and legal basis that can reasonably be given. Refusing to particularise the claim and relying on evidence that might emerge from the employer at the hearing may justify costs. The withdrawal itself, or the absence of a convincing explanation for it, is not an independent ground, although the explanation may illuminate the reasonableness of the earlier conduct. A tribunal judge may later determine costs after interlocutory hearings unless apparent bias is shown.

Ms C K Kaur brought proceedings against John L Brierley Ltd alleging unlawful deductions from wages. She withdrew the claim before the substantive hearing, after which the respondent sought its costs.

On 16 May 2000, an Employment Tribunal ordered the applicant to pay the respondent’s costs. The Employment Appeal Tribunal, in a judgment delivered on 27 April 2001, dismissed her appeal. The Court of Appeal considered whether the Tribunal retained jurisdiction to determine costs after withdrawal, whether the same chairman could hear the costs application after an earlier interlocutory hearing, whether the conduct was unreasonable under Rule 12(1), and whether sufficient notice of the costs application had been given.

Disposition. Pill LJ gave the leading judgment. Chadwick LJ and Clarke LJ agreed. The application for permission to appeal was refused, with costs of £3,966 awarded to the respondent.

1. Jurisdiction after withdrawal. Dismissal of the substantive claim on withdrawal did not deprive the Employment Tribunal of jurisdiction to determine the respondent’s pending costs application. The dismissal and the reference of the costs application had occurred together, and the Tribunal was entitled to proceed.
2. Rule 12(1). Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, costs are not routinely awarded against an unsuccessful party, including a party who withdraws a claim. The party seeking costs must establish conduct of the kind specified in Rule 12(1), including conduct that was otherwise unreasonable.
3. Failure to particularise. A claimant should ordinarily provide such particulars as can reasonably be given of the claim advanced. It was unreasonable to proceed with an unlawful-deduction claim without identifying the alleged loss or the basis of the claim, while proposing to rely on evidence that might emerge from the respondent at the hearing. That conduct justified awarding the costs incurred while the proceedings remained extant.
4. Withdrawal and explanation. Failure to give a good reason for withdrawal is not, by itself, a freestanding ground for awarding costs. The relevant question remains the reasonableness of the preceding conduct. The absence of a satisfactory explanation may nevertheless be relevant to that assessment, and the chairman was entitled to conclude that the stated reason had no bearing on the issue.
5. Bias and notice. A judge may conduct an interlocutory hearing and later determine costs without apparent bias merely because the earlier hearing involved an assessment of the parties’ conduct. No animus was shown. In the circumstances, the respondent’s earlier requests for particulars and its reference to those requests provided sufficient notice of the basis of the costs application.
6. Earlier hearing. It would generally be preferable to determine costs relating to an abortive hearing at the time, when the circumstances are fresh. The omission did not cause a material problem here because the same judge later heard the application and the point had not been taken.

1. Court of Appeal (Civil Division): on 30 April 2002, refused permission to appeal and awarded the respondent costs of £3,966.
2. Employment Appeal Tribunal: judgment delivered on 27 April 2001; dismissed the appeal from the Employment Tribunal.
3. Employment Tribunal: on 16 May 2000, ordered the applicant to pay the respondent’s whole costs, to be taxed in the County Court under the applicable fast-track rules.