France v. Khan & Ors (Costs)

An Employment Appeal Tribunal costs order may be warranted where a party’s unreasonable conduct causes an unnecessary hearing. In deciding whether to award costs, the Tribunal may weigh responsibility on both sides and make a proportionate partial order.

Where an appeal concerning the detailed assessment of costs depends on the outcome of a reconsideration of the underlying costs order, resistance to an adjournment may be unreasonable. A party’s attempt, immediately before the hearing, to resile from an earlier agreement as to disposal may also justify costs consequences.

The Claimant had two appeals before the Employment Appeal Tribunal. One challenged the refusal to reconsider an Employment Tribunal costs order. The parties had previously agreed that the reconsideration application should be remitted to a differently constituted Employment Tribunal.

The other appeal challenged a detailed assessment requiring the Claimant to pay £40,000 and £3,000 costs of the assessment hearing. Its outcome depended on whether the underlying costs order was maintained, varied or set aside on reconsideration.

The Respondents initially withheld consent to an adjournment and, on the day before the hearing, sought to withdraw from the earlier agreement. At the hearing the parties agreed that the original consent order should stand. The Claimant then sought the costs of that hearing under Rule 34A(1).

1. The costs application was granted in part. The Respondents were ordered to pay three quarters of the Claimant’s summarily assessed costs of the Employment Appeal Tribunal hearing.
2. The appeal concerning detailed assessment of costs was dependent upon the reconsideration of the original costs order. The reconsideration could result in the order being set aside, varied, or replaced by an order of a different kind. It was therefore apparent that the assessment appeal should follow the reconsideration outcome.
3. The Respondents acted unreasonably by withholding consent to adjourn the linked appeals. They also acted unreasonably in seeking, at four o’clock on the day before the hearing, to resile from the September 2017 agreement to remit the reconsideration application to a differently constituted Employment Tribunal.
4. The Claimant was also at fault. She had not shown that she had taken steps to secure relisting of the reconsideration application, despite having primary responsibility for progressing that application. The responsibility for the unnecessary hearing did not therefore rest exclusively with the Respondents.
5. Balancing that shared responsibility, the Respondents’ conduct crossed the threshold for a costs order under Rule 34A. A three-quarters award fairly reflected that the greater weight of blame lay with them.

• Employment Appeal Tribunal: By consent, the appeal against refusal to reconsider the original costs order was to be remitted to a differently constituted Employment Tribunal. The Tribunal then granted the Claimant’s costs application in part.
• Employment Tribunal: Following dismissal of the Claimant’s claims, it made a costs order, refused reconsideration of that order, and later assessed costs at £40,000 plus £3,000 costs of the assessment hearing.