Crossland v OCS Group UK Ltd & Anor

An appellate court cannot set aside an employment tribunal strike-out order which was not itself appealed. Where a claim has been struck out for deliberate non-payment of a deposit, dismissal of an appeal against the deposit order leaves the strike-out effective. Comments made during argument about amendment or payment cannot confer jurisdiction that the court does not possess. In costs matters, the starting point is that the unsuccessful party pays the successful party’s costs. Lack of funds and the existence of related proceedings do not, without more, justify deferring costs to another tribunal. A payment on account of costs is ordinarily appropriate.

The appellant brought disability discrimination claims against OCS Group UK Ltd and British Airways Interior Engineering Ltd. The Employment Tribunal ordered him to pay a £250 deposit as a condition of continuing the claims. After he failed to pay, the claims were struck out under rule 18(7)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The Employment Appeal Tribunal dismissed his first appeal, and the Court of Appeal dismissed his second appeal. This judgment addresses the consequential costs order and the appellant’s attempt to revive the struck-out claims by setting aside the strike-out and extending time for payment.

1. Disposition and costs. The appeal had been dismissed in the court’s main judgment. The unsuccessful appellant was ordered to pay the respondents’ costs, subject to detailed assessment on the standard basis if not agreed, and to pay £3,000 on account by 4 pm on 4 June 2014. The court regarded that as a conventional and modest order.
2. Jurisdiction to revive the claim. The Employment Tribunal had ordered a £250 deposit. After the appellant deliberately failed to pay it, despite an extension of time, the tribunal struck out his claims under rule 18(7)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The Employment Appeal Tribunal and the Court of Appeal dismissed appeals against the deposit order. The appellant had not appealed against the strike-out order itself. The Court of Appeal therefore had no jurisdiction to set it aside, and the discrimination claim could not be revived in the present appeal.
3. Effect of observations during argument. Any comments concerning amendment of the claim or payment of the deposit referred to applications which could have been made before the claim was struck out. They were not made in the context of the consequences of losing the appeal and could not confer jurisdiction which the court did not have.
4. Conduct of the respondents. The respondents were required to address the correctness of the deposit order, not to advise the appellant about the risks of refusing payment and pursuing an appeal. The appellant had to assess that risk himself. There was no justification for referring costs to the Employment Tribunal or deferring them because the appellant lacked funds.

1. Court of Appeal (Civil Division): The second appeal against the deposit order was dismissed. The court declined to set aside the unappealed strike-out order and made costs orders: [2014] EWCA Civ 678.
2. Employment Appeal Tribunal: The first appeal against the Employment Tribunal’s deposit order was dismissed.
3. Employment Tribunal: A £250 deposit was ordered as a condition of continuing the disability discrimination claims. Following non-payment, and after an extension of time, the claims were struck out under rule 18(7)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.