Riniker, R (On the Application Of) v Employment Tribunals And Regional Chairmen

On an unsuccessful renewed application for permission to bring judicial review proceedings, the usual order is that the claimant pays the defendant’s costs of preparing the Acknowledgment of Service, but not the costs of attending the permission hearing. Attendance costs require exceptional circumstances and a judicial decision addressing that issue. The court must also consider whether the Acknowledgment was filed in time and whether the defendant complied with the pre-action protocol. A defendant who filed late and failed to comply with the protocol was not entitled to recover either attendance costs or preparation costs.

The appellant challenged the transfer of her employment tribunal proceedings from Central London to Watford and sought judicial review despite being advised that an appeal to the Employment Appeal Tribunal was the appropriate remedy. Permission was refused on the papers, and the renewed application was heard in her absence. The Administrative Court permitted the defendants to participate and ordered her to pay £4,700, summarily assessed as the defendants’ costs of attendance. Stadlen J confirmed the order.

The Court of Appeal granted permission to appeal against the costs order. The central issues were whether the defendants could participate without a formal application, whether the costs order was consistent with the applicable Practice Direction and R (Mount Cook Land Limited and Westminster City Council), and what effect the late filing of the Acknowledgment of Service and non-compliance with the pre-action protocol had.

1. Appeal allowed. The costs order was quashed. The first-instance judge erred by awarding attendance costs without considering whether the circumstances were exceptional, as required by the binding approach in R (Mount Cook Land Limited and Westminster City Council) [2003] EWCA Civ 1346, and without considering the significance of the late filing of the Acknowledgment of Service.

2. The defendants’ attendance was necessary only because their Acknowledgment had not been filed before the judge and they required permission to take part. It would have been unnecessary to attend in addition to putting a lengthy written case before the court. Attendance costs were therefore refused.

3. Although the defendants had filed late, a formal application under Part 23 was not required. Under CPR 54.9(1), permission to take part could be given informally by the judge in response to an informal application. The judge had in fact granted permission to participate, although the order referred only to permission to attend.

4. The usual recovery of costs associated with an Acknowledgment of Service rests on the defendant having done what it should have done before permission is considered. The defendants had filed late and had not complied with the pre-action protocol. The general rule therefore did not apply, and the defendants were denied the costs of preparing the Acknowledgment.

5. For completeness, the court rejected the submission that paragraph 8.6 of the Practice Direction meant that costs should generally never be ordered against a claimant who renews an unsuccessful application orally. Paragraph 8.6 was construed as limiting the general protection to attendance costs. Defendants should keep costs to a minimum before permission is granted by putting their case forward in summary form under the pre-action protocol. Ewing v Office of Deputy Prime Minister [2005] EWCA Civ 1583 supported that understanding.

• Court of Appeal (Civil Division): Appeal against the costs order allowed; the order for £4,700 was quashed.

• Administrative Court: Beatson J refused permission on the papers. On the renewed application, Cranston J refused permission, allowed the defendants to participate and ordered the claimant to pay £4,700 for their attendance. Stadlen J confirmed the costs order.