FDA & Ors v Bhardwaj [2022] EAT 97

Appeal and cross appeal against various costs orders. Appeals dismissed.

In a case that has been running for over 13 years, the Claimant and the Respondent in the original proceedings made applications for costs after the Claimant lost her claims of unlawful race discrimination, victimisation and of unjustifiable discipline by FDA, an independent trade union. Three of the Respondent's applications for costs were refused and one was granted. The Respondent appealed against one application that was refused and the Claimant appealed against the costs order made against her.

The EAT dismissed both appeals, the EAT summarising as follows:

"The citation of authority in applications for costs must be strictly constrained to those which genuinely establish a point of principle not apparent from the words of the rules themselves. Costs awards do not operate by precedent. They are fact specific and to be determined as summarily as possible. The expectation must be that nothing more than the words of the relevant rule require addressing before the ET exercises its discretion on the particular facts of the case.

When the threshold requirements for an order for costs are met under rule 76(1)(a) and/or (b) of the 2013 ET rules, it by no means follows that, because it may make a costs order, it will proceed to do so. It has a discretion. The discretion is very broad and it would require a clear error of principle to justify an appeal, whether for or against an order for costs.

In a case involving multiple issues, it will often be unrealistic to hive off some issues from others when assessing whether costs should be awarded and, if so, in what amount. Most cases stand or fall as a whole, even though in many cases there will be some issues on which the losing party is successful or partly successful. Issue based costs orders are on the whole to be avoided."


Published: 19/07/2022 10:12

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