Carruthers v London School of Economics Students Union

An Employment Appeal Tribunal may interfere with a costs assessment only for an error of law or principle. Costs thrown away by an adjournment may include reasonable preparation and refresher costs necessarily incurred for the relisted hearing, provided the award is confined to costs caused by the adjournment. The assessment remains a matter for the Employment Tribunal’s judicial discretion. A different tribunal’s view about the appropriate preparation time or contribution does not establish an error of law where the award falls within the wide ambit of that discretion.

The claimant appealed against an Employment Tribunal order requiring him to pay £4,000 towards the respondent’s costs thrown away when the substantive hearing was adjourned. The Employment Tribunal considered that the adjournment resulted from the claimant’s unreasonable conduct in preparing and pursuing the proceedings.

At a preliminary hearing, all grounds except the challenge to the quantum of costs were dismissed. The Employment Appeal Tribunal therefore considered only whether the costs award included costs that were not thrown away, or otherwise disclosed an error of law or principle.

1. Appeal dismissed. The Employment Tribunal had jurisdiction to assess the contribution payable towards costs thrown away by the adjournment.
2. The material question was whether the costs claimed were limited to costs caused by the adjournment. They were. The respondent did not seek recovery of the original brief fee, which would have been incurred in any event. The claim was confined to counsel’s wasted attendance, a refresher fee for necessary re-preparation, and the instructing solicitor’s attendance at the abortive hearing.
3. The Employment Tribunal was not required to adopt the alternative assessment suggested by the claimant. It could accept that counsel reasonably needed to re-prepare for the relisted hearing, while awarding substantially less than the total claimed. The assessment disclosed no error of principle.
4. The Employment Appeal Tribunal does not rehear questions of fact or substitute its own view of the appropriate sum merely because another tribunal might have allowed less or more. The award was within the wide ambit of the Employment Tribunal’s judicial discretion and was not legally perverse.
5. Matters said to constitute fresh evidence could not be relied upon without a proper application to adduce that evidence. The appeal was confined to the issue permitted at the preliminary hearing.

• Employment Appeal Tribunal: On 8 March 2011, the appeal against the quantum of the costs order was dismissed. All other grounds had previously been dismissed at a preliminary hearing.
• Employment Tribunal: The Tribunal ordered the claimant to pay £4,000 towards the respondent’s costs thrown away by the adjournment.