The Claimant is the former managing partner of the first Respondent, a firm of solicitors. In 2018 the Claimant was diagnosed with cancer and went off sick. The Claimant received payments from a permanent health insurance (“PHI”) scheme. A bitter dispute developed including about whether the Claimant could receive profit share paid into his pension in addition to the PHI payments. He won part of one claim to the ET but the ET dismissed a second claim. At a remedy hearing, the ET made no award to the Claimant and was highly critical of him, saying that the Claimant had given the court untruthful evidence. A costs order of £210,000 was made against him. The Claimant appealed on 3 grounds: the ET had failed to consider: i) whether to exercise discretion; ii) ability to pay; and iii) the effect such a costs order would have on his family.

The EAT dismissed the appeal. The ET did consider discretionary factors other than ability to pay and ability to pay as an aspect of the Stage 2 discretionary decision before considering ability to pay as a part of the Stage 3 quantum decision. On the ability to pay and family issue grounds, the ET concluded that the Claimant was likely to be able to pay the costs award having regard to his half-share in the family home and his likely profit share not withstanding his other debts. The ET repeatedly noted that the Claimant had a half share in the family home. While it did not specifically refer to the consequences that a sale of the house would have on his wife and children, it was not required to do so, particularly because on any valuation this was a very substantial capital asset.