Gold Panda Limited & Anor v H O'Keefe

For the purposes of rule 76(1)(a), unreasonable conduct need not occur in the hearing room or in legal correspondence to amount to conduct of tribunal proceedings. Conduct intended to influence the course or outcome of a claim by preventing its continuation, including by frustrating the claimant’s ability to obtain a determination of liability, may form part of the way in which the proceedings have been conducted.

The tribunal may consider the likely effect of the conduct and draw inferences about the party’s subjective intention. The question is not confined to whether a financial award could later be enforced.

The claimant brought employment claims against three respondents, including the two appellant companies. Following a four-day hearing, the employment tribunal upheld certain claims and then awarded the claimant costs of £8,370.98 jointly and severally against the appellants under rule 76(1)(a) of the Employment Tribunals Rules of Procedure, 2013.

The tribunal found that the first appellant had repeatedly sought voluntary removal from the register of companies, and that the second had failed to prevent or disclose its prospective strike-off. Neither company was removed because of steps taken by the claimant. The tribunal inferred that the conduct was intended to prevent the claimant establishing liability in the proceedings.

The sole issue on appeal was whether that admittedly unreasonable conduct was capable in law of being conduct of the proceedings.

1. Appeal refused. The employment tribunal made no error of law in holding that rule 76(1)(a) of the Employment Tribunals Rules of Procedure, 2013 was engaged.

2. The tribunal had first identified the unreasonable conduct. The appellants did not challenge that finding. It was then entitled to decide whether that conduct formed part of the way in which the proceedings had been conducted.

3. That assessment could properly take account of both the likely effect of the conduct and the party’s subjective intention. Intention was a matter for inference from the surrounding circumstances.

4. Without giving an exhaustive definition, conduct intended to influence the course or outcome of tribunal proceedings by making their continuation impossible for the claimant can amount to conduct of those proceedings. The principle is not restricted to conduct occurring in court or in legal correspondence.

5. On a fair reading of the tribunal’s reasons, its finding was not merely that the appellants sought to make a financial award unenforceable. It found that they intended to end the claimant’s complaints by preventing her from establishing liability on their merits. That conduct was not extraneous to the litigation; it was part of the appellants’ method of resisting the claims.

• Employment Appeal Tribunal: appeal against the costs order refused: [2025] EAT 47.
• Employment Tribunal, Birmingham: on 12 May 2023, awarded the claimant £8,370.98 in costs jointly and severally against the two appellant companies under rule 76(1)(a) of the Employment Tribunals Rules of Procedure, 2013.