Following a final merits hearing conducted in two parts (one in April and the other in November 2022), the Respondent made an application for costs on the basis that (i) it had been unreasonable for the Claimant to continue with his claims for discrimination arising from disability, reasonable adjustments, victimisation, automatic unfair dismissal and unfair dismissal after the April 2022 hearing dates, and (ii) at that point those claims enjoyed no reasonable prospects of success. £7,500 was sought corresponding to counsel’s fees for attending the 5 days of hearing in November 2022. The ET awarded those costs in favour of the Respondent. The Claimant appealed.

The EAT dismissed the appeal. Applying Radia v Jefferies International [2020] IRLR 431 and Opalkova v Acquire Care Ltd (Unreported, EA-2020-000345-RN), for the purposes of an application for costs made under Rule 76(1)(b), it is open to an ET to consider whether a claim or response had a reasonable prospect of success at a time subsequent to the outset of proceedings. No error of law was disclosed in respect of the ET’s application of the legal principles governing an award of costs.