Foster v Rowes Garage Ltd: EA/2020/000280/OO

Appeal challenging decision not to reduce a costs award that the claimant said he could not afford. Appeal dismissed.

In 2017, claims brought by the Claimant for unfair dismissal, disability discrimination and harassment were dismissed. The Respondent made an application for costs on the basis that the Claimant had acted vexatiously, both in bringing and conducting proceedings and also that the claims had no reasonable prospects of success. At a hearing to consider the application on February 5th 2020, the claimant collapsed, though the Tribunal’s decision had been made beforehand.

The Claimant’s appeal was allowed to proceed on a single ground that the ET had not given adequate reasons or that the decision was perverse, arguing, per Jilley, that the Tribunal has a discretion whether to take into account the paying party’s ability to pay. If a Tribunal decides not to do so, it should say why but they had not done so in this case. In rejecting these submissions, Clive Sheldon QC, sitting as a Deputy High Court Judge, said that while the judgment was succinct on the matter of assessing whether the claimant could pay, it satisfied the guidance in Jilley and Hammond. He also comments that the fact that Claimant’s employment circumstances have changed since the date of the hearing, and in particular that he is no longer in regular employment, is not a reason to find that the Employment Tribunal’s decision was perverse. Alongside that, the claimant had not provided any evidence that his mental health issues would restrict his future earnings.

Published: 24/08/2021 11:08