Monfared v Spire Health Care Ltd

On a detailed assessment on the standard basis, an Employment Judge need not make an express finding on every element of the costs test for every allowed item. The adequacy of the reasons depends on the issues properly raised and the decision read as a whole. Where points of dispute do not advance focused, reasoned objections, the Judge may scrutinise the bill, disallow or reduce items that fail the Civil Procedure Rules 1998 criteria, and inferentially allow the remainder.

An order requiring payment of a specified proportion of a party’s costs, to be determined by detailed assessment, concerns the costs of the proceedings. It includes the reasonable and proportionate costs of the assessment itself.

The Claimant brought whistleblowing detriment and discrimination claims, which were dismissed, and succeeded only in an unfair-dismissal claim. At the remedy stage, the Employment Tribunal ordered him to pay one quarter of the Respondent’s costs, to be determined by detailed assessment.

On assessment, the Employment Judge assessed the Respondent’s total costs on the standard basis at £85,143 and ordered payment of £21,285.75. The Claimant appealed, contending that the Judge had not separately applied the standard-basis criteria or given adequate reasons for counsel’s fees and document costs. He also contended that the assessment could not include costs incurred after the remedy hearing, including the bill’s preparation.

1. Appeal dismissed. The Employment Judge correctly identified and applied the standard-basis principles in Civil Procedure Rules 1998, Part 44. The Claimant’s points of dispute did not make distinct and reasoned challenges to counsel’s fees or document costs by reference to those principles.

2. The Judge was entitled to scrutinise the bill critically, without a mechanistic head-by-head recital of whether each allowed item was reasonably incurred, reasonable in amount and proportionate. Read as a whole, the assessment showed that the Judge had disallowed or reduced items that did not meet the applicable criteria, including through an overall proportionality reduction. The fair inference from the absence of an adverse finding on other items was that the Judge considered the criteria met. The Judge needed to resolve doubt in favour of the paying party only if a doubt arose.

3. The reasons substantially complied with rule 62 of the Employment Tribunal Rules of Procedure 2013. They identified the issues, the applicable law, the Judge’s assessment and the calculation. Their degree of detail was proportionate to the unfocused objections advanced.

4. The remedy order required the assessment of one quarter of the Respondent’s costs of the proceedings. Construed under the Rules and consistently with the overriding objective, that expression included the costs of the detailed assessment. A contrary construction would impose an arbitrary financial burden on a receiving party merely because detailed rather than summary assessment had been ordered. The Employment Judge therefore correctly rejected the attempt to revisit or restrict the earlier costs order.

• Employment Appeal Tribunal: Appeal dismissed. The detailed assessment and resulting order were upheld.
• Employment Tribunal, East London: In a remedy judgment sent on 22 February 2017, ordered the Claimant to pay one quarter of the Respondent’s costs, to be determined by detailed assessment. In the judgment appealed, sent on 29 September 2017, assessed the Respondent’s costs at £85,143 and ordered payment of £21,285.75.