Colletti v Borealis Driver Services Ltd (Practice and Procedure: Costs)

Under Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993, a costs order for appeal fees requires that the appeal has been allowed wholly or partly. The principal discretionary consideration is the extent of the appellant’s success, together with whether it was necessary to incur the fees. Partial failure may justify a reduced award, but no award after substantial success will ordinarily require careful justification.

Conduct before the Employment Tribunal is irrelevant to an award under Rule 34A(2A). Under Rule 34A(1), however, costs may be awarded for unreasonable conduct in the EAT. An unfounded allegation of apparent bias may be improper and unreasonable. The award should broadly reflect the additional costs caused, and ability to pay may be considered.

The claimant brought three appeals from decisions of an Employment Judge. He succeeded in restoring claims for race discrimination, notice pay and nights-out allowance, but failed on other grounds, including employer identity, continuity of employment and proposed amendments.

Following the appeals, the claimant sought recovery of appeal fees under Rule 34A(2A) and costs for the respondents’ alleged unreasonable conduct. The respondents sought costs under Rule 34A(1), principally because the claimant had pursued allegations of procedural impropriety and apparent bias.

The central issues were the proper exercise of the EAT’s costs discretion following a partly successful appeal, and whether either party’s conduct of the EAT proceedings justified a costs order.

1. The claimant was awarded £1,800 under Rule 34A(2A). The condition for that jurisdiction was met because his appeals had succeeded in part. The principal consideration was his substantial practical success, although the limited failure of some grounds justified reducing the £2,400 fees claimed. Applying the guidance in Portnykh and Look Ahead Housing v Chetty, the Tribunal also accepted that it had been necessary for him to incur appeal fees.

2. The respondents’ criticisms of the claimant’s conduct before the Employment Tribunal could not affect the Rule 34A(2A) award. That rule concerned reimbursement of fees incurred in the appeal. Costs for Employment Tribunal conduct were instead a matter for the Tribunal’s own procedural rules.

3. The claimant’s Rule 34A(1) application against the respondents was dismissed. The respondents’ solicitor had reasonably filed an affidavit addressing serious allegations concerning the Employment Judge’s conduct. Whether conduct is unreasonable is a question of fact and degree, and the complained-of material fell well short of that standard.

4. The respondents obtained £1,250 under Rule 34A(1). Although it was not unreasonable for the claimant to raise unequal treatment of an unrepresented litigant whose first language was not English, his allegation that the Employment Judge had given an appearance of bias was improper and unreasonable. An informed and impartial observer could not reasonably infer bias from the matters relied on.

5. The costs award was confined to the additional expense caused by the bias allegation. Following Yerrakalva, it needed only broadly reflect the costs caused by the unreasonable conduct. The claimant’s limited means were considered under Rule 34B(2). The awards were set off, leaving the respondents to pay the claimant £550 within 14 days.

• Employment Appeal Tribunal: Following the claimant’s partly successful appeals, the Tribunal determined the parties’ cross-applications for costs in [2016] UKEAT 0204_15_1805.
• Employment Tribunal: The appeals arose from decisions of Employment Judge MacInnes. The EAT had restored certain struck-out claims and set aside related deposit orders, while dismissing other grounds of appeal.