Bouheniche v Secretary of State for Work and Pensions (Practice and Procedure : Costs)

An Employment Appeal Tribunal will rarely interfere with an Employment Judge’s discretionary costs order where the judge directed himself correctly, considered relevant factors, and reached a conclusion reasonably open on the evidence.

A litigant may act unreasonably by maintaining a claim that depended on a statutory grievance when no grievance had been lodged, particularly where the litigant failed to provide accurate information to his representative. Costs may properly reflect the additional expense caused by that conduct, subject to assessment of reasonableness and ability to pay.

The Claimant succeeded in part in race discrimination and breach of contract proceedings, but several claims had been struck out. At a subsequent costs hearing, Employment Judge Malone found that the Claimant had acted unreasonably by asserting that he had lodged a statutory grievance under section 32 of the Employment Act 2002, while failing to tell his representative that no grievance had been lodged.

The judge initially assessed the Respondent’s costs at £3,000 and reduced the order to £2,000 after considering the Claimant’s means. A sift judge found no arguable error of law. The issue before the Employment Appeal Tribunal was whether the costs order disclosed an error of law or justified appellate interference.

1. Appeal dismissed. The Employment Appeal Tribunal dismissed the application and the underlying appeal against the £2,000 costs order.
2. Employment Judge Malone was entitled to find that the Claimant had acted unreasonably. The claim of race discrimination during employment depended on compliance with the statutory grievance requirement in section 32 of the Employment Act 2002. The Claimant had asserted that a grievance had been lodged, although none had been, and had failed to provide his representative with accurate documents and information.
3. That conduct materially increased the Respondent’s costs. If the position had been disclosed earlier, claims could have been withdrawn and procedural steps avoided. The Employment Judge was entitled to regard the conduct as serious and to connect it with the additional expense incurred.
4. The judge considered the Respondent’s costs evidence, reduced the amount claimed to reflect reasonable time and rates, and then reduced the award further having regard to the Claimant’s means. He took account of relevant matters and did not rely on irrelevant matters.
5. The appellate approach was governed by Haritaki v South East England Development Agency [2008] IRLR 945, whose approach had been approved in Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240. It was most unusual for an appellate court to interfere with a properly directed costs discretion.

1. Employment Appeal Tribunal: Employment Judge Malone made a £2,000 costs order on 10 March 2011. The Claimant’s appeal was dismissed.
2. Employment Appeal Tribunal sift: HHJ David Richardson found no reasonable grounds of appeal and identified no error of law.
3. Employment Appeal Tribunal: The present application under rule 3(10) was dismissed, together with the underlying appeal.