Mirikwe v Wilson & Co Solicitors & Ors

An Employment Tribunal has a broad discretion under rule 41(2) whether to take the paying party’s means into account when making or assessing a costs order. Non-attendance at the costs hearing may be relevant, particularly where the party is the primary source of evidence about means. The party’s unreasonable conduct may also be considered. The weight given to those matters is for the Tribunal, and an appellate tribunal should intervene only for an error of law, disregard of relevant considerations, or a plainly wrong exercise of discretion.

The Employment Tribunal rejected claims of race discrimination, sex discrimination and breach of contract, and awarded the Respondents costs on an indemnity basis. It declined to take the Claimant’s means into account, referring both to her failure to return for the costs hearing and to the unreasonable conduct of the litigation.

The appeal was confined to whether the Tribunal had treated non-attendance as irrelevantly or punitively. The central issue was whether the costs discretion had been exercised according to legal principle.

1. Appeal dismissed. The Employment Tribunal had jurisdiction under rules 40 and 41 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 to award costs where the conduct of proceedings had been unreasonable, and had a discretion under rule 41(2) whether to have regard to the paying party’s ability to pay.
2. The discretion under rule 41(2) was broad and unfettered. There was no absolute duty to take means into account. The guidance in Jilley v Birmingham and Solihull Mental Health NHS Trust showed that non-attendance, or unsatisfactory evidence about means, could provide good reason not to do so.
3. Non-attendance could be relevant both because it prevented evidence about means from being given and because, in the circumstances, it could constitute another instance of unreasonable conduct. The Employment Tribunal was entitled to consider the Claimant’s non-attendance separately from her generally unreasonable conduct.
4. The Employment Appeal Tribunal could not substitute its own view about the appropriate weight to give non-attendance. Applying the guidance in McPherson v BNP Paribas, intervention required an error of law, disregard of relevance, or a plainly wrong exercise of discretion. Those grounds were not established.
5. The suggestion that the order could also be sustained solely by reference to the Claimant’s extraordinary conduct was an attractive fallback argument, but it was unnecessary to decide it.

• Employment Tribunal, East London: rejected the Claimant’s discrimination and breach of contract claims and made an indemnity costs order. Written Reasons were promulgated on 5 March 2010.
• Employment Appeal Tribunal: dismissed the appeal, which was limited to the treatment of non-attendance in deciding whether to take the Claimant’s means into account.