Felicien v Metropolitan Police Authority & Anor (Practice and Procedure : Costs)

An appeal against a procedural decision should be dismissed where subsequent events have removed any practical significance from the issue raised. The appellate tribunal should not give advisory views on the merits of a wasted-costs application, or on a point not properly before it.

A decision to determine wasted costs against a representative before the underlying proceedings conclude will generally be unusual. Its propriety nevertheless depends on whether the particular circumstances make departure from the normal course just.

The Employment Tribunal decided on 2 June 2012 that the respondents’ wasted-costs application against the claimant’s representatives should be determined at a pre-hearing review. The claimant appealed, contending in substance that it was wrong to determine the application before the substantive issues.

Before the appeal was heard, the pre-hearing review took place but the Tribunal did not determine the wasted-costs application. It later made unless orders, with which the claimant did not comply, and her claims were automatically struck out. A separate challenge to that strike-out remained subject to an application under rule 3 (10) of the Employment Appeal Tribunal Rules 1993.

The central issue was whether there remained any utility in determining the appeal against the earlier procedural decision.

1. Appeal dismissed. The Tribunal had not in fact determined the wasted-costs application at the pre-hearing review. Following the automatic strike-out of the claimant’s claims, the question whether that application could properly have been determined before liability was therefore of no practical significance.

2. A possible revival of the substantive proceedings did not preserve the utility of this appeal. Any later application to determine wasted costs in advance would arise from different circumstances and would require a different order. Its validity could not be governed by an appeal concerning the circumstances in May 2012.

3. The Tribunal declined to express a view on whether rule 48 (4) of the Employment Tribunal Rules of Procedure prevented a wasted-costs order. That issue was not before it and might require a careful factual inquiry into the representatives’ terms of engagement.

4. Although not material to the disposition, the Tribunal observed that an oral order must be recorded in writing and sent to the parties as soon as possible. Reasons may follow separately. It also observed that where an unless order automatically strikes out a claim, the proper course is to notify the parties of that consequence rather than issue a further judgment.

• Employment Appeal Tribunal: dismissed the appeal because subsequent events had superseded the procedural issue.
• Employment Tribunal: on 2 June 2012 directed that a wasted-costs application be considered at a forthcoming pre-hearing review; it later did not determine that application and the claimant’s claims were automatically struck out following non-compliance with unless orders.