Yagomba v Axa Uk Plc & 16 Others

An appeal should not be pursued once the dispute it raises has become academic. A party who continues to prosecute such an appeal, despite being told that the event making it academic will occur and being offered a consensual means of vacating the hearing, may be acting unreasonably for the purposes of a costs order.

Under the Employment Tribunal Rules 1993, the Appeal Tribunal has a discretion to consider the paying party’s means when fixing costs. Limited current means do not require it to extinguish liability. They may justify a proportionate cap where there is evidence of potential future means.

The claimant appealed against an Employment Tribunal decision extending time for AXA UK plc and 16 individual respondents to serve ET3 responses to his second claim. The Tribunal was also to reconsider that extension decision. Proceedings below were stayed for a substantial period at the claimant’s request.

After the stay was lifted, the respondents notified the claimant that they would serve ET3s, which would render the appeal academic, and invited him to agree to vacate it. The claimant instead sought to attach conditions to withdrawal. On the day fixed for the Full Hearing, he applied to withdraw. Both sides sought costs. The central questions were whether either side had acted unreasonably in the conduct of the appeal and, if so, what costs order should be made.

1. Application to withdraw granted; claimant’s costs application rejected; respondents’ costs application allowed in part. The appeal challenged an extension of time for service of ET3s. Once those forms were to be served, and in any event once served, the issue was academic. Courts do not adjudicate academic disputes or pronounce on matters no longer requiring resolution between the parties.

2. The respondents were not obliged to serve ET3s earlier, particularly while the proceedings below were stayed at the claimant’s request. The extension issue also remained live for reconsideration by the Employment Tribunal. The respondents’ conduct of the appeal from 7 January 2016 was therefore neither unnecessary, misconceived nor unreasonable. The asserted weakness of their strike-out application did not affect that conclusion.

3. The claimant acted unreasonably from 7 January 2016. He was repeatedly told that the appeal was premature and unnecessary; by 11 January it was academic; and the respondents reasonably offered to obtain a consent order vacating the hearing. He nevertheless imposed unjustifiable conditions, did not clearly agree to withdraw, and maintained that issues could still be argued despite their academic nature. His conduct caused the respondents unnecessarily to prepare for the Full Hearing.

4. Rule 34A of the Employment Tribunal Rules 1993 empowered the Appeal Tribunal to award costs for unreasonable conduct. In fixing the amount, Rule 34B permitted, but did not require, consideration of means. The claimant’s benefit evidence supported limited present means, but other material raised doubt and indicated possible future resources. On a broad-brush summary assessment, the claimed costs of £11,393.52 were reduced to £10,000 and then capped at £6,000 to reflect means. The claimant was ordered to pay £6,000.

• Employment Appeal Tribunal: the claimant was permitted to withdraw his appeal. His costs application was rejected and the respondents obtained a costs order of £6,000.
• Employment Tribunal: Employment Judge Livesey extended time for all respondents to serve ET3s until 28 days after determination of their strike-out application. The claimant requested reconsideration of that decision; the judgment records that this remained a live question.