Goldwater v Sellafield Ltd (Costs)

Under Rule 34A(2A) of the EAT Rules, an order reimbursing appeal fees cannot exceed fees paid by the appellant. Fees paid by a trade union on an appellant’s behalf may be costs incurred on that appellant’s behalf, but they are not fees paid by the appellant for the statutory cap.

The tribunal retains a wide discretion where an appeal succeeds. Reasonable resistance to an appeal is relevant, but may not prevent an order where the appellant had to pursue a narrow and financially important point to correct an error. That discretion cannot overcome the express monetary limit in Rule 34A(2A).

Following a reserved judgment allowing the claimants’ appeal on a narrow issue concerning shift allowance, the appellants applied for £1,600 under Rule 34A(2A) of the EAT Rules. The sum comprised the issue and hearing fees.

The respondent contended that the appeal had not wholly succeeded, that costs should not be awarded in the exercise of discretion, and that the fees had been paid by the GMB rather than by the appellants. The central issue was whether fees paid by a union for its members could be recovered under Rule 34A(2A).

1. The costs application was dismissed. Rule 34A(2A) permitted a costs order following an appeal allowed in full or part, but capped the order at the amount of any fee paid by the appellant.
2. The appellants had succeeded wholly on the sole point raised by their appeal. The respondent’s contention that the appeal was only partially successful was therefore rejected. The Judge would otherwise have exercised the discretion to make an order. Although the respondent had reasonably and properly resisted the appeal, the issue was narrow, the Employment Judge’s error required correction through an appeal hearing, and the result had potential financial importance for other employees.
3. Rule 34(2) defined costs to include fees incurred by or on behalf of a party. The GMB had plainly incurred the fees on the appellants’ behalf. They therefore fell within that definition of costs.
4. That did not answer the distinct limitation in Rule 34A(2A). The GMB rulebook relieved members complying with its rules from legal costs, and there was no evidence that the appellants had reimbursed the GMB. The appellants had thus paid no fees themselves. The maximum recoverable amount under Rule 34A(2A) was nil.
5. The ruling turned on the particular facts and wording of Rule 34A(2A). The Judge noted that Rules 34A(1) and 34B–D did not contain the same wording.

• Employment Appeal Tribunal: This costs ruling followed the Judge’s reserved judgment of 24 November 2014, which allowed the claimants’ appeal on the construction issue concerning shift allowance. The present application for appeal fees was dismissed.