B Gurney v M Randall & Ors

An Employment Appeal Tribunal costs application requires a two-stage inquiry. The tribunal must first find conduct within the threshold in rule 34A, including proceedings that were unnecessary, improper, vexatious or misconceived. It must then decide whether to exercise its discretion to award costs.

Passing the sift or another preliminary stage gives no immunity from costs. It is nevertheless a relevant discretionary factor, particularly where the appeal has not materially changed after the sift. An appeal that ultimately fails, even comprehensively, is not thereby misconceived. The question is whether it had no reasonable prospects of success when properly assessed in its procedural context.

The fourth respondent applied for costs after the Employment Appeal Tribunal dismissed three connected appeals against an Employment Tribunal decision refusing an application for wasted costs. The Employment Tribunal judgment was sent to the parties on 1 March 2023. The appeals were dismissed on 23 October 2025.

The costs application alleged that the appeals were unnecessary and/or misconceived because they had no reasonable prospects of success. The appellants relied in part on the fact that a Deputy Judge had permitted the grounds to proceed at the sift stage. The central issue was whether the appeals crossed the threshold for costs under rule 34A of the Employment Appeal Tribunal Rules 1993, and, if so, whether costs should be ordered.

1. Application refused. The appeals were not shown to be unnecessary or misconceived within rule 34A(1) of the Employment Appeal Tribunal Rules 1993. The threshold for a costs order was therefore not met.

2. The EAT is generally a costs-free jurisdiction and costs do not follow the event. The applicable approach is sequential: first, establish threshold conduct under rule 34A; secondly, decide whether discretion should be exercised to award costs. Passing a sift, a Rule 3(10) hearing or a preliminary hearing does not protect an appellant from costs. It remains a factor relevant to both the assessment of unreasonable conduct and the exercise of discretion.

3. The fact that an appeal was dismissed comprehensively did not establish that it was misconceived. The first ground, concerning the legal test for wasted costs, was arguable. The second and third grounds did not meet the high threshold for perversity or succeed on the law, but they were not unarguable in the context of the unparticularised age-discrimination allegation and the appellant's proposed wider criticism of the representative's conduct.

4. The earlier appeal had held that conduct akin to an abuse of process was required for wasted costs liability, whether the conduct was alleged to be improper, unreasonable or negligent. Although the contrary argument failed, it was not so poor as to render the appeal misconceived.

5. In any event, the sift decision was a material discretionary consideration. The case had not substantially changed since the sift, and the appellants could reasonably take comfort from the Deputy Judge's view that the appeal was arguable. Had the misconceived threshold only just been met, the EAT would still have refused costs.

• Employment Appeal Tribunal: dismissed the connected appeals against the Employment Tribunal's refusal of a wasted-costs application on 23 October 2025; it subsequently refused the fourth respondent's costs application in this judgment, [2026] EAT 4.
• Employment Tribunal: Employment Judge A.M.S. Green refused the application for wasted costs. The judgment was sent to the parties on 1 March 2023.