JJ Food Service Ltd v Zulhayir

An application under Part 52.9A of the Civil Procedure Rules 1998 must be made as soon as practicable. That requirement is mandatory. A litigant’s ignorance of the right to apply does not make an earlier application impracticable or justify a special rule for litigants in person.

Even where the requirement is satisfied, the court retains a discretion whether to limit recoverable appeal costs. The circumstances of the case may justify refusing protection. A costs order may also cover a period during which the paying party was legally aided, leaving the amount payable for determination by the costs judge.

The Employment Tribunal rejected Mr Zulhayir’s unfair dismissal and disability discrimination claims against JJ Food Service Ltd. The Employment Appeal Tribunal, in appeal UKEAT/0275/12/RN, allowed his appeal. The Court of Appeal subsequently restored the Employment Tribunal’s decision in [2013] EWCA Civ 1226.

This supplemental judgment determined costs. The successful employer sought its appeal costs. Mr Zulhayir, who had obtained legal aid during the appeal, opposed that application and sought an order under Part 52.9A of the Civil Procedure Rules 1998 limiting his liability for costs. The principal issues were whether his application had been made as soon as practicable and what costs orders should follow.

1. The application to limit recoverable costs was not entertained, and the employer was awarded its appeal costs. Part 52.9A(4) of the Civil Procedure Rules 1998 made an application as soon as practicable a mandatory condition. Treating that condition as optional would reduce it to a dead letter.

2. The respondent had not applied while acting in person after the rule came into force. His ignorance of the right to apply did not mean that an application was impracticable. The court rejected the suggestion that litigants in person were, or should be, governed by special rules on this issue. In any event, after solicitors came on the record, the application was delayed until a fortnight before the appeal without sufficient explanation.

3. Even if Part 52.9A had been available, the court would have declined to exercise its discretion. The circumstances under Part 52.9A(2)(b) made a limitation inappropriate. The underlying claim was assessed as manifestly opportunistic, at least in relation to unfair dismissal. The respondent should neither have brought that claim nor appealed the Employment Tribunal’s correct rejection of it. It would have been unfair to leave the successful employer bearing its costs before the Court of Appeal and both tribunals.

4. The respondent was ordered to pay the employer’s costs down to and including 21 May 2013, before his legal aid protection began. Those costs were to be assessed in detail on the standard basis. A costs order was also made for the subsequent legally aided period, but the amount, if any, payable was left to the costs judge. The claimed appeal costs of £9,840.60 were not disproportionate. The parties were directed to submit an agreed order covering both the substantive appeal and costs.

1. Court of Appeal (Civil Division): In this supplemental judgment, [2013] EWCA Civ 1304, the court declined to entertain the respondent’s costs-capping application and ordered him to pay the appellant’s appeal costs, subject to assessment and legal aid restrictions.
2. Court of Appeal (Civil Division): In [2013] EWCA Civ 1226, the court allowed JJ Food Service Ltd’s substantive appeal, set aside the relevant parts of the Employment Appeal Tribunal’s order and restored the Employment Tribunal’s decision.
3. Employment Appeal Tribunal: In appeal UKEAT/0275/12/RN, the tribunal allowed Mr Zulhayir’s appeal from the Employment Tribunal.
4. Employment Tribunal: The tribunal rejected Mr Zulhayir’s claims, including his unfair dismissal claim.