Fosh v Cardiff University

On a renewed application for permission to appeal, a respondent may attend by counsel and seek costs where renewal is directed on notice and the application fails. Clear warnings about the consequences of pursuing an unpromising application may justify a costs order. A litigant in person is not exempt merely because technical issues were not understood. The court may reduce a substantially excessive bill to a token contribution where the respondent’s role was limited and the costs claimed were not properly justified.

Professor Fosh renewed an application for permission to appeal from HHJ Peter Clark’s Employment Appeal Tribunal decision dated 23 January 2008. Permission had been refused on paper, with renewal directed on notice to Cardiff University. The renewed application was unsuccessful, and the Court of Appeal’s earlier judgment, [2009] EWCA Civ 38, left the outstanding question of costs for determination. The issue was whether the University was entitled to attend by counsel and seek costs, and what sum fairly represented the proper costs of the unsuccessful application.

1. Costs entitlement. The renewed application for permission to appeal was unsuccessful. Because renewal had been directed on notice, the University was entitled to attend by counsel and seek an order for its costs. The application was a permission application, not a substantive appeal.
2. Warnings and personal status. Professor Fosh had received clear warnings from Sir Richard Buxton and HHJ Clark about whether pursuing the matter further was justified. Her status as a non-lawyer did not remove the consequences of continuing after those warnings. The court rejected the contention that she should not bear costs relating to technical issues she did not understand. The reference to Civil Procedure Rules 1998 Practice Direction 52.4.14A had been erroneous, but the warnings themselves were clear.
3. Assessment of the sum. The University’s bill was substantially excessive. Counsel’s fee was not excessive, but the solicitors’ time could not be justified and their role in the application was extremely limited. The appropriate order was therefore a token contribution reflecting the proper costs of the application from the University’s perspective.
4. Order. Professor Fosh was ordered to pay £3,000 inclusive of VAT within 28 days, or within any longer period agreed by the parties or ordered by a costs judge.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was unsuccessful. The earlier judgment, [2009] EWCA Civ 38, left the outstanding costs question for determination in this judgment.
2. Employment Appeal Tribunal: HHJ Peter Clark gave the decision dated 23 January 2008 from which permission to appeal was sought.