Iteshi v Office of Water Services (Ofwat) (Practice and Procedure : Costs)

The Employment Appeal Tribunal’s exceptional costs jurisdiction may be exercised where proceedings are misconceived, vexatious or unreasonably conducted. A claimant may properly challenge discriminatory treatment at a sift or recruitment stage, even if later appointment was unlikely. However, a claim is misconceived where the claimant knew, when issuing it, that it had no reasonable prospect of success. Repeated hostile publicity, unsupported allegations against judges and public bodies, and campaigning beyond the issues in the proceedings may amount to unreasonable conduct and an abuse of the EAT’s process. A full hearing does not prevent a costs application under rule 34A. The tribunal may make a contribution to costs after considering ability to pay.

The claimant had appealed against an Employment Judge’s decision concerning his unsuccessful application for employment with Ofwat. The underlying appeal had been dismissed. Ofwat then applied for costs in the EAT under rule 34A(1), alleging that the claim and appeal were misconceived, vexatious and unreasonably conducted.

The application relied on the claimant’s knowledge of the competition and essential qualifications, unsupported allegations of fraud and conspiracy, repeated pre-hearing emails and publicity, and an alleged campaign against the Employment Tribunals and the EAT. The central issues were whether the exceptional costs jurisdiction was engaged and what contribution, if any, should be ordered.

1. Application granted. The EAT exercised its exceptional jurisdiction under rule 34A. The claimant’s conduct was unreasonable and vexatious. His unsupported allegations and communications formed part of a campaign extending beyond the narrow issues in the claim and appeal, and the repeated pre-hearing emails were an abuse of the EAT’s process.
2. The claim was also misconceived. The claimant had a Masters degree in employment law and knew of the strong competition before issuing proceedings. He also lacked an essential qualification for the post, namely entitlement to practise as a barrister in England and Wales. The claim was therefore bound to fail, as he should have appreciated. The same applied to the appeal in light of the Employment Judge’s findings.
3. The Tribunal distinguished between a proper complaint about discriminatory treatment during the sift and the separate question whether the claimant could realistically have obtained the appointment. The fact that appointment was unlikely did not itself bar a claim concerning discriminatory treatment at any stage of recruitment.
4. The fact that the matter had proceeded to a full hearing did not prevent a costs application under rule 34A. Proper consideration of costs could occur at a full hearing: JO Sims Ltd v McKie, UKEAT/0518/05.
5. Having invited submissions on ability to pay under rule 34B(2), the EAT ordered the claimant to pay Ofwat a contribution of £750 to its costs, with time to pay.

• Employment Appeal Tribunal: the underlying appeal had been dismissed. On the subsequent costs application, the EAT ordered the claimant to pay Ofwat £750 by way of contribution to its costs.