Goldwater & Ors v Sellafield Ltd

Under Rule 34A(2A) of the EAT Rules, an order reimbursing appeal fees may not exceed a fee paid by the appellant. Fees paid by a trade union on the appellant’s behalf may be costs incurred on that party’s behalf under Rule 34(2), but that does not satisfy the separate statutory ceiling in Rule 34A(2A). Where the appellant has paid no fee, the maximum recoverable amount is nil and the costs application must fail.

The rule does not require complete success on an appeal. The tribunal retains a wide discretion, and reasonable resistance to an appeal is relevant, but neither point can overcome the express limit on the amount recoverable.

The claimants had previously succeeded on an appeal concerning a narrow issue of construction relevant to a shift allowance. They then applied for an order under Rule 34A(2A) of the EAT Rules seeking repayment of the £400 issue fee and £1,200 hearing fee.

The respondent opposed the application. It contended that the appeal had not wholly succeeded, that the discretion should not be exercised, 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 on an appellant’s behalf could be recovered under Rule 34A(2A).

1. Application dismissed. The appellants had paid no tribunal fees. Rule 34A(2A) permitted an order only up to the amount of a fee paid by the appellant. The maximum order was therefore nil.

2. 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, so they fell within that definition. However, that broader definition did not displace the distinct and express ceiling in Rule 34A(2A): [2015] UKEAT 0178_14_1902, paras 5–7.

3. The union rulebook relieved members who complied with its rules from legal costs. On the material before the Tribunal, the appellants had neither an indemnity obligation to the union nor made any reimbursement. Whether they had personally incurred fees was therefore immaterial to the decisive requirement that they had paid none.

4. Complete success was not a precondition to an order under Rule 34A(2A). The appeal had concerned one construction issue and had succeeded wholly on that issue. The Judge would otherwise have exercised the discretion in the appellants’ favour, notwithstanding that the respondent had reasonably resisted the appeal. That discretionary conclusion could not overcome the statutory limit.

5. The ruling was confined to the facts and wording of Rule 34A(2A). Rules 34A(1) and 34B–D did not contain equivalent wording.

• Employment Appeal Tribunal: following a reserved judgment, handed down on 24 November 2014, allowing the claimants’ appeal on a construction issue, the Tribunal dismissed their subsequent fee-costs application: [2015] UKEAT 0178_14_1902.