McPherson v BNP Paribas (London Branch) (2)

An appellate court may vary a tribunal’s costs order so that liability is confined to costs incurred after a specified procedural event. Where an appellant obtains that limited variation but does not secure the wider costs order sought, the costs of the appeal may be apportioned. If those costs cannot be agreed, they should be subject to detailed assessment.

Alasdair McPherson appealed from the Employment Appeal Tribunal in proceedings arising from an Employment Tribunal costs order. The Court of Appeal varied the order so that Mr McPherson was liable only for costs incurred after his medically based application to adjourn a hearing fixed for 24 September 2001.

The parties then disputed the costs of the appeal. Mr McPherson sought payment of his costs, or alternative orders. BNP Paribas opposed those submissions and relied, among other matters, on the limited relief obtained and settlement offers. The central issue was the appropriate allocation and assessment of the appeal costs.

1. Disposition. The appeal was allowed to the extent of varying the Employment Tribunal’s costs order. Mr McPherson was liable only for costs incurred after the date of his application to adjourn the hearing fixed for 24 September 2001, on medical grounds.
2. Costs of the appeal. The court considered the rival submissions, the limited nature of the relief obtained and the settlement offers. It also took account of the fact that Mr McPherson had spent money pursuing the appeal to preserve a more favourable costs order, although he had not obtained the wider costs order sought. The appropriate order was that BNP Paribas pay one half of Mr McPherson’s costs of the appeal.
3. Assessment. The court declined to make a summary assessment. The appropriate course was detailed assessment of the appeal costs if they were not agreed, particularly since the Employment Tribunal costs remained subject to contested detailed assessment.
4. The appeal was therefore allowed only to the stated extent. There was no application by either party for permission to appeal to the House of Lords.

• Court of Appeal (Civil Division): Allowed the appeal to the extent of varying the costs order and ordered the respondent to pay one half of the appellant’s appeal costs, subject to detailed assessment if not agreed.
• Employment Appeal Tribunal: This was the court appealed from. Its citation and precise order are not stated in the judgment.