Horizon Security Services Ltd v Ndeze

On allowing an appeal, the Employment Appeal Tribunal has a broad discretion under rule 34A(2A) of the Employment Appeal Tribunal Rules 1993 to order the respondent to reimburse fees paid by the successful appellant.

The respondent need not have engaged in the unreasonable conduct specified in rule 34A(1). The EAT remains generally a no-costs jurisdiction, and costs do not automatically follow the event. However, following the introduction of fees, the general expectation is that a successful appellant who was actively opposed should recover the fees paid, subject to the extent of success, the circumstances of the appeal and the respondent’s ability to pay.

Horizon had successfully pursued a substantive appeal against the respondents. It applied for an order requiring PCS to pay £1,600, representing the fees paid when the appeal was lodged and listed for a full hearing.

The application was made under rule 34A(2A) of the Employment Appeal Tribunal Rules 1993. Mr Ndeze played no active part in the appeal and was not pursued for costs. PCS had resisted the appeal but made no written submissions on the costs application. The central issue was whether an award of fees required the respondent first to satisfy the conduct-based thresholds in rule 34A(1).

1. Application allowed. PCS was ordered to pay Horizon £1,600, representing the fees paid in pursuing the appeal.
2. The EAT remains generally a no-costs jurisdiction. The ordinary civil rule that costs follow the event does not normally apply to EAT appeals.
3. Rule 34A(2A) gives the EAT a broad discretion, where an appeal has been allowed in whole or in part, to order the respondent to pay the appellant an amount no greater than any fee paid under a notice issued by the Lord Chancellor. The provision operates separately from the conduct-based costs jurisdiction in rule 34A(1).
4. There is therefore no requirement for the respondent to have crossed the rule 34A(1) thresholds, such as unnecessary, improper, vexatious or misconceived proceedings, unreasonable delay or other unreasonable conduct.
5. The introduction of fees changes the practical landscape. Subject to particular circumstances, including partial success and the respondent’s means, the general expectation is that a successful appellant will recover fees from a respondent that actively resisted the appeal. The discretion remains broad and may be withheld where recovery would be unjust or impossible.
6. Horizon had achieved substantial success. PCS had actively resisted the appeal and there was no reason to doubt its ability to pay. The order was made against PCS alone.

• Employment Appeal Tribunal: The substantive appeal had previously been allowed. On the subsequent costs application, the EAT ordered PCS to pay Horizon £1,600 under rule 34A(2A) of the Employment Appeal Tribunal Rules 1993.