Application for costs allowed but on a reduced basis of £1,000 rather than the actual cost of dealing with the unreasonable claims that were brought and how they were conducted.

The respondent brought an application for costs on the basis that one of the grounds of appeal lodged by the claimant was misconceived. This was found in an earlier EAT decision from 2024. The respondent argued that the claimant’s conduct was also unreasonable as the claimant failed to agree a note of what was said before the Employment Judge at first instance, failing to provide her own notes and also objecting to the notes made by the Employment Judge. The respondent also argued that the appeal generally was unreasonable considering that it was like a reconsideration rather than an appeal.  This was further exacerbated considering the claimant’s skeleton argument advanced points beyond the permitted grounds of appeal and that the claimant submitted an unagreed and unpaginated bundle.

The EAT in determining the application for costs found for the respondent in allowing the costs application. It was found that the claimant’s conduct had been unreasonable during the appeal as they sought to make arguments outside of those permitted and submitted unagreed and unpaginated bundles. Further it was found that the claimant’s conduct was unreasonable relating to the disclosure of notes and by objecting to the application for the Employment Judge’s notes.

The respondent sought costs in the sum of £10,882.50. The Tribunal looked at this in conjunction with the claimant’s ability to pay.  It was found that the claimant was not wealthy, had no income beyond Universal Credit and had debts amounting to 6 months’ income.  Taking that into account as well as looking at the extent of the costs incurred (found to be actually £2,652.50) due to the claimant’s conduct on the particular points it was found that a total costs order of £1,000 would be made.  This was £750 for the issue relating to the notes and £250 for the other matters relating to the conduct at the hearing with the bundles and skeleton arguments.

This decision demonstrates the thought process for the Tribunal in determining a costs application. It was clear from the decision that the claimant had acted unreasonably and had led to costs being incurred. However, the decision for the claimant was softened when looking at the means to pay. This meant that only £1,000 was ordered against the claimant. This is likely to be a frustrating element for the respondent who will be losing out in defending against what were unreasonable claims but demonstrates the extent to which the Tribunal operates to facilitate those making claims. These factors would have to be considered in determining whether to make an application for costs.

You can read the case in full here.