COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MR JUSTICE UNDERHILL
UKEAT/0231/10/RN, BAILII:  UKEAT 0231_10_0812
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
SIR HENRY BROOKE
| BARNSLEY METROPOLITAN BOROUGH COUNCIL
|- and -
|MRS ANNAPOORNAMMA YERRAKALVA
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
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MR ANTONY SENDALL (instructed by HLW Commercial Lawyers LLP) for the Respondent
Hearing date: 17th June 2011
Crown Copyright ©
Lord Justice Mummery:
The costs order
The ET judgment
"…acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived."
"12. Accordingly, it is only if and in so far as the Tribunal is able to conclude that the commencement or pursuit of the claim has been vexatious, abusive, disruptive or otherwise unreasonable that the Tribunal must then proceed to consider whether to make a costs order. The exercise of the Tribunal's discretion is not dependent upon the existence of any causal nexus between the conduct relied upon and the costs incurred (Macpherson v. BNP Paribas(London Branch) IRLR 558.)"
"39. Ms McCafferty [counsel for the claimant] submitted that her client's liability for the costs was limited, as a matter of the construction of rule 14 [now rule 40], by a requirement that the costs in issue were "attributable to" specific instances of unreasonable conduct by him. She argued that the tribunal had misconstrued the rule and wrongly ordered payment of all the costs, irrespective of whether they were "attributable to" the unreasonable conduct in question or not. The costs awarded should be caused by, or at least be proportionate to, the particular conduct which has been identified as unreasonable.
40. In my judgment, rule 14(1) does not impose any such causal requirement in the exercise of the discretion. The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring BNP Paribas [the respondents] to prove that specific unreasonable conduct by Mr Macpherson caused particular costs to be incurred. As Mr Tatton-Brown pointed out, there is a significant contrast between the language of rule 14(1) which deals with costs generally, and the language of rule 14(4), which deals with an order in respect of the costs incurred "as a result of the postponement or adjournment." Further, the passages in the cases relied on by Ms Mc Cafferty ….are not authority for the proposition that rule 14(1) limits the tribunal's discretion to those costs that are caused by or attributable to the unreasonable conduct of the applicant."
"32. In summary therefore I cannot conclude, as the Respondents suggest I should, that the Claimant's case never had any merit from the outset or that she should bear all the blame for protracting it and delaying the proceedings. I think the Respondents have not dealt with it as well as they might have done and have made rather more of a meal out of it than reasonably or necessarily should have been the case. For my part, it has always occurred to me in the past that Mrs Yerrakalva was trying to proceed with it as best as she could and the number of documents that she has revealed bears testimony to a willingness to make a reasonable amount of disclosure."
"33. …I am quite satisfied that she has understood what was being asked of her and that she has not been truthful with the Tribunal. I regard that as being an abuse of the process and that is why I have decided that it is appropriate to make a costs order."
"39. It is, I appreciate, difficult in discrimination cases for Respondents, not least public authorities who have to be seen to be acting with even greater propriety, to ensure that they have sufficient evidence to refute claims made against them not least given the law in relation to the burden of proof in cases such as this. Despite that, I have to conclude in this case that the Respondents have acted over vigorously in defence of allegations and have run up a bill which, it seems to me, not least at the stage we are at, to be quite disproportionate to the issues at stake."
Discussion and conclusion
Lord Justice Patten:
Sir Henry Brooke: