A group of employees who successfully appealed a tribunal ruling over the interpretation of their contracts cannot recover court fees because their union paid them, the Employment Appeal Tribunal (EAT) has decided.
Their solicitors, Thompsons, applied for a costs order of £1,600 under rule 34A(2A) of the EAT rules, comprising the £400 issue fee and £1,200 hearing fee.
Rule 34A(2A), which came into effect on 29 July 2013, says: “If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying that the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor.”
In Goldwater & Ors v Sellafield Ltd  UKEAT 0178_14_1902 , the defendant’s solicitors, Eversheds, argued that as the fees were paid by the GMB, no award could be made. The GMB rulebook indicated that members would not, provided they follow the rules, have to pay any legal costs.
In a ruling handed down on the papers, HHJ Shanks said: “Given those facts it seems to me a moot point whether the appellants have personally ‘incurred’ any fees; however, the fees were clearly incurred on their behalf by the GMB and they therefore come within the definition of the word ‘costs’ as used in rule 34A.
“But rule 34A(2A) limits the amount of a costs order which can be made under it to ‘any fee paid by the appellant’. It seemed to me that this provision may be fatal to the appellants’ claim and I therefore invited further submissions.
“Although I was referred to various authorities relating to Rules 34 and 34A and the meaning of the word ‘incurred’, I have not been shown anything which can avoid the difficulty I identified: the plain fact is that the appellants have paid no fees at all in this case and that the maximum order that can be made is therefore nil.
“It follows that I can make no costs order and that the application must therefore be dismissed. I should emphasise that this decision arises from the facts of this case and the specific wording of the newly introduced rule 34A(2A). Rules 34A(1) and 34B-D do not include similar words.”