23 April 2015Print This Post

EAT upholds £10,000 costs order against claimant “in dire straits”

costs

Nothing wrong with “broad-brush” assessment of costs

A costs order of £10,000 against a woman described by her barrister as “in dire straits” has been upheld by the Employment Appeal Tribunal (EAT).

Mrs Justice Simler held that nothing in the rules required an employment tribunal to make a “precise estimate of what could be afforded”, and nor in this case did it make one.

“The reality of the claimant’s age and the prospect of her returning to work in the future were matters that the tribunal was plainly entitled to have regard to. They have not been challenged on this appeal.

“They involve a certain amount of speculation about future events about which there can be no certainty, but that is inevitable in an exercise of the kind with which the tribunal was concerned and gives rise to no error of law.

“There was no positive evidence to the effect that the claimant had no realistic prospects of obtaining employment ever again in future or of improving her financial position as a consequence. She is only 39, after all.”

The EAT heard in Chadburn v Doncaster and Bassetlaw Hospital NHS Foundation Trust and another (UKEAT/0259/14/LA) that Mrs Chadburn had unsuccessfully pursued a number of discrimination claims against her former employer.

Mrs Chadburn’s counsel argued that her financial situation was “dire”, and although the tribunal concluded that she was £600 in debt, the true position was £4,800.

However, Simler J said: “The respondents’ costs of the race discrimination aspect of this case amounted to £35,000, and the award, accordingly, amounted to less than a one-third contribution toward those costs.

“I accept that represents a significant liability for the claimant, but the respondents have been required to defend vexatious, false allegations she knew to be untrue, which had the effect of doubling the length of the hearing, significantly expanding the issues and involving witnesses who would otherwise not have needed to be involved in the tribunal proceedings at all.

“There could, in those circumstances, be nothing wrong in principle in the tribunal making a broad-brush assessment of the limit of the award of costs at a level that would give the respondents the benefit of the doubt as to the claimant’s future ability to pay but having recognised that at the current time she was in no position to pay and had significant debts.”

Simler J concluded that the tribunal’s decisions could not “be impugned as in error of law” and dismissed the claimant’s appeal.

Louise Piper, employment lawyer at Howes Percival, commented: “This is a helpful case for employers who are faced with vexatious claims and could act as a deterrent to employees seeking to make false allegations.”

By Nick Hilborne

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