Osonnaya v Queen Mary University Of London (Practice and Procedure : Costs)

An Employment Tribunal may make a costs order under rule 40(1) where an application for postponement or adjournment causes the other party to incur costs. That jurisdiction does not require a finding of unreasonable conduct. Alternatively, under rule 40(2), unreasonable conduct requires a high threshold, and the assessment is primarily for the Employment Judge. Ability to pay is a discretionary consideration under rule 41(2); where it is not raised, the Judge is not generally required to investigate it. An appellate tribunal should be slow to interfere with a discretionary costs order. Fresh evidence on appeal must satisfy the tests in Ladd v Marshall.

The Claimant appealed against an Employment Judge’s order requiring her to pay £500 towards the Respondent’s costs after the Judge postponed a pre-hearing review. The postponement application was made on the day listed for the hearing, although the Claimant had known earlier of matters affecting her witnesses, health and representation.

The appeal challenged findings of fact, the conclusion that the Claimant had acted unreasonably, and the failure to consider her ability to pay. The Claimant also sought to adduce a letter as fresh evidence to show that an earlier postponement application had been made.

1. Fresh evidence. The application to adduce the letter was refused. It was available before the Employment Tribunal with reasonable diligence and was not apparently credible in light of the surrounding correspondence. It would have had significant influence on the costs decision, but the first two requirements in Ladd v Marshall were not satisfied (paras 12–16).
2. Costs following postponement. Rule 40(1) permits a costs order where, on a party’s application, a hearing or pre-hearing review is postponed or adjourned and the other party incurs costs. The jurisdiction is unusual but does not require a pejorative finding of unreasonable conduct. If the order was not properly made under rule 40(2), it was nevertheless plainly available under rule 40(1), since the Claimant’s successful application caused the Respondent to incur costs (paras 18, 26).
3. Unreasonable conduct. Under rule 40(2) and (3), the use of the word unreasonable requires a high threshold. The Employment Judge was entitled to conclude that the Claimant had delayed her application despite knowing of the relevant difficulties. Whether conduct is reasonable is an evaluative judgment for the Employment Judge, not ordinarily for an appellate tribunal to reassess (paras 19, 21–25).
4. Ability to pay and appellate review. Ability to pay may be considered under rule 41(2), but it is discretionary. Where the issue is not raised, there is no general duty to investigate it, including where the party is litigating in person. The Claimant had not raised ability to pay, and the Judge therefore did not err. The appeal was dismissed and the fresh-evidence application refused (paras 19–20, 27–30).

• Employment Tribunal: Employment Judge Jones ordered the Claimant to pay £500 towards the Respondent’s costs after postponing the pre-hearing review.
• Employment Appeal Tribunal: The application to adduce fresh evidence was refused and the appeal was dismissed.