Portnykh v Nomura International Plc

Where an appeal succeeds in full or in part, rule 34A(2)(a) of the Employment Appeal Tribunal Rules gives the Employment Appeal Tribunal a broad discretion to order the respondent to repay fees paid by the appellant. Subject to the paying party’s means and the circumstances of the case, substantial success will usually justify payment of the full fees, even where the appeal concerned an interlocutory rather than a merits decision.

Where the appellant has applied for fee remission, the Tribunal may make a contingent costs order. Payment may be postponed and made conditional upon refusal of remission.

The appellant had substantially succeeded in an interlocutory appeal. Following that outcome, the Tribunal gave consequential directions concerning the forthcoming full merits hearing and considered the appellant’s application for repayment of the £1,600 hearing fee.

The appellant’s application for fee remission had not yet been determined. The central issue was whether, and on what terms, the Tribunal should exercise its discretion under rule 34A(2)(a) of the Employment Appeal Tribunal Rules to make a fee-related costs order.

1. Costs order granted conditionally. The respondent was ordered to pay £1,600, being the appellant’s hearing fee, within 14 days after any refusal of the appellant’s fee-remission application.

2. Rule 34A(2)(a) conferred a wide discretion where an appeal had been allowed in whole or part. The Tribunal adopted the general approach that, subject to exceptions arising from the circumstances and to the paying party’s means, an unsuccessful party should pay the successful party’s fees. Whether the appellant had succeeded on every argument remained relevant. However, substantial success would usually warrant payment of the full fee.

3. There was no material distinction between an appellant who paid fees to correct an interlocutory error and one who appealed a merits decision. The respondent had been entitled to defend an arguable case in a difficult area, but the appellant had needed to bring the appeal and had substantially succeeded.

4. The Tribunal did not treat the appellant’s earlier conduct of litigation as materially affecting the appeal. The respondent had the means to pay. Because fee remission remained undecided, an immediate repayment order might create difficulty if remission were granted. A contingent order, postponing payment until refusal of remission, was within the Tribunal’s power and avoided that problem.

• Employment Appeal Tribunal: The appellant had substantially succeeded in an earlier interlocutory appeal in the same proceedings. This judgment determined consequential directions and the fee-related costs application. The judgment under appeal and its citation were not stated.