Kite et al v Madeline Clark

An employment tribunal may determine a costs application without an oral hearing, but both parties must have a fair opportunity to present their cases. An applicant must set out concise, specific grounds in its written costs application. Merely reciting the statutory tests, while asserting that all details are contained in the application, does not require the tribunal to infer unspecified allegations or invite further submissions.

Under the Employment Tribunal Rules 2013, costs remain exceptional. The tribunal may refuse an inadequately pleaded application without a hearing where the applicant could readily have stated its grounds in writing. Appellate intervention is confined to legal error in the exercise of the tribunal’s case-management discretion.

The claimant, a legally qualified barrister acting in person, brought employment claims against named UK-resident partners and an unlimited partnership. The Employment Tribunal struck out her claims for want of territorial jurisdiction, non-compliance with ACAS early conciliation requirements, and lateness. The respondents then made a costs application under Rules 76(1)(a) and (b) of the Employment Tribunal Rules 2013.

The application stated the statutory bases for costs and proposed directions for a hearing, but did not identify the claims said to have lacked reasonable prospects or the conduct said to have been unreasonable. Employment Judge Norris dismissed it without a hearing. The respondents appealed, contending that they had been denied a fair opportunity to advance the application.

1. Appeal dismissed. The Employment Tribunal did not err in law by refusing the costs application without an oral hearing or an invitation for further written submissions.
2. Rule 77 of the Employment Tribunal Rules 2013 gives the tribunal a broad discretion as to the manner of determining a costs application. The applicant, as well as the paying party, must have a fair opportunity to present its case. That does not ordinarily entail an oral hearing. Onyx Financial Advisors Ltd v Shah established that, if an applicant has made clear that its written application is not intended to contain its complete case, the tribunal must either afford a hearing or give a fair opportunity to develop the case in writing.
3. That principle did not assist these appellants. Their application did not give proper, specific grounds under Rule 76. It stated only the statutory language and expressly represented that the application itself contained the details and reasons. The Employment Judge was entitled to take that representation at face value and was not required to guess the arguments intended.
4. Specific concise grounds were required. Otherwise, the 28-day limit for applying for costs could be undermined, the respondent would lack a fair opportunity to answer the application, and the exceptional nature of employment tribunal costs orders would be disregarded. The appellants could readily have pleaded their grounds as concisely as they later did in their EAT skeleton argument.
5. The proposed directions showed a wish for a hearing, but did not make plain that further information or argument remained to be presented, unlike Onyx. The tribunal’s approach was therefore within its discretion. In any event, the procedural history showed no material practical disadvantage: the principal jurisdictional point had later been resolved in the claimant’s favour, a comparable EAT costs application had failed, and the appellants withdrew their reconsideration application.

• Employment Appeal Tribunal: appeal against Employment Judge Norris’s costs judgment dismissed. The tribunal had refused the respondents’ costs application without a hearing.
• Employment Tribunal: the claimant’s substantive claims were struck out. The later costs application was dismissed by a judgment sent on 12 June 2019.