Carr v Arthur McKay Building Services (Practice and Procedure: Costs)

An Employment Tribunal's reasons for a costs order must, read fairly and as a whole, make sufficiently clear the basis on which the party is required to pay. An omission to restate the reason at the point where the amount is assessed does not establish an error of law where the reasons as a whole show that the order was based on unreasonable conduct of the proceedings.

A party who fails, without explanation, to ensure the attendance of a witness it wishes to call may properly be required to meet reasonable and proportionate costs caused by a consequent postponement application.

The Claimant appealed against an Employment Judge's order that he pay the Respondent £99 for three hours spent preparing to oppose postponement applications made on 23 and 24 January 2013.

The hearing could not proceed because the Claimant's proposed GP witness did not attend. The Employment Judge found that the Claimant had failed to tell the witness of the continued hearing date, despite an earlier witness order. The appeal was permitted to proceed only on whether the written reasons sufficiently explained the costs order.

The Respondent did not oppose the appeal. The central issue was whether the Employment Judge had made an error of law by giving inadequate reasons for ordering the Claimant to pay the costs.

1. Appeal dismissed. The Employment Judge made no error of law in ordering the Claimant to pay £99.
2. Although the Employment Judge did not expressly repeat, when assessing the amount, why the Claimant should pay the Respondent's costs, her reasons had to be read as a whole. So read, they sufficiently showed that she regarded the Claimant's conduct as unreasonable.
3. The Claimant knew that it was his responsibility to secure the attendance of the witness whom he wished to call. He failed to ensure that the witness attended and offered no explanation to the Employment Judge for failing to take further steps.
4. The Respondent's three hours of preparation for opposing the postponement requests was found reasonable and proportionate in light of the procedural history. The resulting £99 award was therefore adequately explained and lawful.
5. The Respondent's decision not to oppose the appeal did not require it to be allowed. As no error of law had been shown, the appeal was dismissed.

• Employment Appeal Tribunal: appeal dismissed. The Employment Judge's costs order of £99 was upheld.
• Employment Tribunal: Employment Judge Porter, sitting alone in Edinburgh, made the costs order in August 2013; judgment was notified on 15 August 2013.