Leeks v St George's University Hospitals NHS Foundation Trust & Ors

A costs order may be made in favour of several parties where legal costs were incurred by a single representative on behalf of them all. Under Rules 74(1) and 75(1) of the Employment Tribunal Rules of Procedure 2013, costs incurred on behalf of a party qualify as that party’s costs for the purpose of a costs order.

The Tribunal may therefore make a global award without separately assessing each represented party’s costs where the reasons for the award and the costs incurred make that course appropriate. On an appeal from refusal of reconsideration, an appellant cannot succeed by advancing a challenge to the underlying costs order which was not raised in the reconsideration application.

The claimant had brought race-discrimination proceedings against an NHS trust and two individual managers. The Employment Tribunal dismissed the claims and subsequently ordered her to pay the respondents costs of £7,500, expressed as an order in favour of the respondents collectively.

Her direct appeal against the costs order was out of time. She appealed instead against the later refusal of her application for reconsideration. The amended grounds contended that the individual respondents had not incurred costs and were not receiving parties under Rules 74 and 75 of the Employment Tribunal Rules of Procedure 2013. She also asserted that the Tribunal had intended to award £2,500 to each respondent.

The central issues were whether the global order was within jurisdiction and whether the refusal of reconsideration disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal had not erred in refusing reconsideration, and the challenge in any event was directed to the original costs order rather than that refusal.

2. The evidence did not support the claimant’s assertion that the Employment Judge had divided the £7,500 award into three awards of £2,500. The Tribunal’s reasons showed that it intended a contribution towards the global legal costs incurred by the solicitors acting for all respondents.

3. Rule 74(1) defines costs to include sums incurred by or on behalf of the receiving party. Rule 75(1) had to be construed consistently with that definition. A party has incurred costs for Rule 75(1) purposes where they were incurred personally or by that party’s representative in supporting that party’s case. That construction accommodates parties whose representation is funded by another person or body.

4. Accordingly, all three respondents were receiving parties. Some costs were incurred for each individually and others for more than one respondent. It was both within jurisdiction and sensible to make one global order in their favour without a separate assessment for each.

5. Further, the reconsideration application had not raised the jurisdiction point. The Employment Judge could not be criticised for failing to address a point not advanced. The appeal against the underlying costs order had already been held out of time.

• Employment Appeal Tribunal: appeal dismissed against the refusal, dated 13 February 2015, of reconsideration of the costs order.
• Employment Tribunal: on 14 January 2015, ordered the claimant to pay costs of £7,500 to the respondents collectively. The claimant’s direct appeal against that order was out of time.