The Claimant made a claim of race discrimination which was rejected by the ET. The ET then had to consider a costs application brought by the Respondent in which they claimed the claimant had brought and pursued the proceedings unreasonably by bringing claims of race discrimination of which there was no evidence whatsoever, the claims were misconceived and had no reasonable prospect of success. The ET asked itself whether the costs award would be in the interests of justice and found that it would be. It then considered the claimant’s means. The claimant remained employed by the Respondent, was plainly a house owner or joint owner and had accrued a full pension which could involve lump sums in the future. The ET awarded the sum of £15,000 which was acknowledged represented only a modest proportion of the Respondent’s costs which were in the region of £130,000. The Claimant appealed on several grounds including that, in determining that the claim had no reasonable prospects of success, the ET had erred in considering when, and if at all, the Claimant acting as a litigant in person should have known that the claim had no reasonable prospect of success.

The EAT allowed the appeal. In its ruling the ET failed to refer to established authority. Had it done so, the ET would have appreciated that it was not enough to hold, as it did, that there was objectively no reasonable prospect of success for the claims. It had also to consider whether the Claimant knew or appreciated that and, if not, whether he ought reasonably to have known or appreciated that. Having found that the Claimant had convinced himself of the truth of the race discrimination allegations and continued to believe them, the second question, if asked, must have been answered in the affirmative. That led to a third question which simply was not addressed. That was a clear error of law.