Costs Consequences – Tribunal Orders a detailed costs assessment

Julie Duane
Written by:

Oliver Edwards


In November 2023 Julie Duane represented the Respondent, a Local Authority, in its application for costs of almost £200,000 against a Claimant. 

Following a separate complex and multi-faceted final hearing where all of C’s claims failed, the Respondent made an application to the Tribunal in accordance with Rule 76(1)(a) and (b) and Rule 78 of the Employment Tribunals Rules of Procedure 2013. The Tribunal Judgment contained a number of key findings of fact pertaining to the merits of the claims and also to the conduct of the Claimant during the litigation. This conduct had inexplicably caused unnecessary cost to the Respondent in defending, and ultimately defeating, the claims.

Resultant from the Respondent’s application for costs, the Tribunal found that a detailed assessment as to costs, with such costs awarded on an indemnity basis, should be determined by a County Court, in addition to an interim payment in the sum of £20,000 to be paid on account. The rationale for those findings included, but were not limited to, the fact that C had:

  1. manufactured documents and evidence in pursuit of his claims to the Tribunal;
  2. alleged non-receipt of correspondence/documents provided to him by the Tribunal, and also by the Respondent, both assertions were later found to have been untrue;
  3. alleged to have sent documents to the Tribunal and Respondent when the Claimant had, in fact, not taken those steps;
  4. falsely claimed that he lacked the facility and/or ability to send and receive emails;
  5. sent or caused to be sent emails to the Tribunal and Respondent communications from erroneous email addresses claiming to be both from people other than himself and not to be sent at his instigation; and
  6. failed to comply with Tribunal Orders, including details of the Claimant’s impecuniosity.

The Tribunal, in obiter, remarked that that if the Tribunal had the power to order payments on account of costs in excess of £20,000, then the amount it would have awarded against the Claimant would be for a sum in excess of £100,000. 

Whilst costs are often perceived as “the exception and not the rule” in Employment Tribunal proceedings, it is perhaps more apt to term Orders as to costs as being unusual as opposed to being exceptional. Indeed, where the necessary gateway for costs has been accessed, it is then for the Tribunal to determine whether it should exercise its wide discretion to award costs in contemplation of a number of factors. In this particular case the repeated and pervasive effects of C’s conduct, in conjunction with his pursuit of a number of non-meritorious claims, demonstrates how the threshold for costs can be unlocked and, as such, significant (and interim) costs then awarded. 

Written by Oliver Edwards