J v K & Anor

An employment tribunal considering costs under rule 76(1)(a) must first decide whether the relevant party acted vexatiously, abusively, disruptively or otherwise unreasonably. It must then decide, in the light of all the circumstances, whether to make an order, and finally determine the appropriate amount.

The tribunal must consider the nature, gravity and effect of unreasonable conduct. It need not establish a precise causal link between each instance of conduct and each item of costs. Costs remain compensatory, not punitive. A summary assessment is permissible where the tribunal can make it and is satisfied that the award compensates the receiving party for costs attributable to the conduct.

The claimant’s substantive employment claims were struck out after he failed to comply with case-management orders and actively to pursue them. The Leeds Employment Tribunal subsequently found that his conduct of the proceedings had been vexatious, abusive, disruptive and unreasonable. It ordered him to pay the respondents’ costs, summarily assessed at £20,000.

The claimant appealed the costs order. He contended that the tribunal had insufficiently considered medical evidence and his mental health, had wrongly made a summary assessment, had imposed a punitive award, and had failed to apply the overriding objective and ensure equality of arms for a litigant in person.

The central issue was whether the tribunal had erred in law when exercising its discretion to make and quantify the costs order.

1. Appeal dismissed. The Employment Tribunal had identified and applied the correct legal principles governing a costs order under rule 76(1)(a) of the Employment Tribunal Rules of Procedure. Its conclusions were open to it on the evidence.

2. The applicable exercise has three stages. First, the tribunal decides whether the party acted vexatiously, abusively, disruptively or otherwise unreasonably. Secondly, it decides whether to make a costs order, having regard to all the circumstances. Thirdly, it determines the sum to be paid. The discretion at the second and third stages is broad.

3. The Jones Tribunal had permissibly found that the claimant’s persistent failure to provide evidence, coupled with his hostile and abusive correspondence, constituted unreasonable, abusive, disruptive and vexatious conduct. It had considered the conduct’s sustained and serious character, its effect on the possibility of a fair hearing, and the avoidable expense and wasted preparation which it caused. It was not necessary to identify a precise causal connection between every item of conduct and every individual cost.

4. Ground 1 was an impermissible attempt to challenge conclusions in the earlier strike-out judgment. Those conclusions stood. They showed that the tribunal had considered the available medical evidence and had been entitled to find that it did not prevent the claimant from giving the required written explanation.

5. The tribunal had properly considered the claimant’s means under rule 84. It had also made deductions for costs that were not properly recoverable, including costs legitimately incurred in commencing and preparing the claim. Its £20,000 award was compensatory, not punitive.

6. A detailed, item-by-item analysis was not required for a summary assessment. The tribunal had considered itself able to assess the costs, considered the recoverable sum, and was entitled to make that assessment. The claimant had not made submissions at the costs hearing as to the sum which should be payable.

7. The complaints under the overriding objective also failed. The tribunal had recognised the difficulties facing a litigant in person, allowed time for the claimant to consider the authority supplied on the morning of the hearing, and afforded him a full opportunity to make submissions. The costs order therefore stands.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Leeds Employment Tribunal’s costs order and left the £20,000 order in force.

• Court of Appeal: separately refused permission to appeal concerning the strike-out judgment, and certified that application as totally without merit.

• Employment Appeal Tribunal: HHJ Peter Clark had rejected the separate appeal from the strike-out judgment under rule 3(7ZA) of the Employment Appeal Tribunal Rules 1993 as totally without merit; review was refused.

• Leeds Employment Tribunal: struck out the substantive claims for non-compliance with case-management orders, then ordered the claimant to pay the respondents’ costs, summarily assessed at £20,000.