England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MR JUSTICE UNDERHILL
UKEAT/0231/10/RN, BAILII: [2010] UKEAT 0231_10_0812

		Royal Courts of Justice Strand, London, WC2A 2LL
		03 /11/2011

Lord Justice Mummery:

Introduction

1. This appeal arises from a legal challenge to a costs order made by an employment tribunal (ET). The question for this court is whether Employment Judge Williams, sitting alone in the ET, erred in law when he exercised his discretion to make an order for costs against the claimant, Mrs A Yerrakalva, following her decision to drop her disability discrimination claim.
2. In August 2005 the claimant brought race, sex and disability discrimination claims and a victimisation claim against Barnsley Metropolitan Borough Council (the Council), which employed her as a school teacher at Dearne Carrfield Primary School. She is Indian by ethnic origin. She presented a second claim form in June 2006. She alleged that she was physically disabled as a result of injuries in an accident at the school in November 2003, that she had problems walking, suffered serious discomfort, used a walking stick, was "virtually unable to walk" and could not stand for long periods. The Council denied the injuries in the alleged accident and contested the credibility of her evidence about her disability. It contended that she was not disabled, alternatively, that she had exaggerated her disability; that she had over-egged her claim; and that she had given untruthful evidence on relevant issues to the ET.
3. The sex discrimination claim was withdrawn in November 2006. The claimant withdrew her disability discrimination claim in a letter written to the ET on 15 February 2008. The ET made an order on 6 April 2009 formally dismissing her claim and sent to the parties on 4 June 2009 its judgment as to costs. The ET ordered the claimant to pay the Council's costs reasonably and necessarily incurred between September 2005 and 6 April 2009. The amount of such costs was to be determined by way of detailed assessment. The Council's estimate of its costs is a staggering £92,500.
4. The claimant won her appeal in the Employment Appeal Tribunal (EAT) before the President, Underhill J, who set aside the costs order on 8 December 2010. The Council appeals from the EAT decision.
5. This is the third round of legal argument about the Council's costs in the ET. The parties were, of course, perfectly entitled to exercise their statutory right of appeal; but, as both sides appreciate, a decision to dispute the exercise of the ET's discretion and to run up even more costs should only be taken after careful thought.
6. The tribunals below did not agree about the exercise of the discretion. That is not surprising. A familiar feature of all litigation is that experienced judges may sensibly differ on how, in the particular circumstances of the individual case, a costs discretion should be exercised. Parties and prudent advisers should take account of that factor when considering whether a costs order is worth appealing.
7. As costs are in the discretion of the ET, appeals on costs alone rarely succeed in the EAT or in this court. The ET's power to order costs is more sparingly exercised and is more circumscribed by the ET's rules than that of the ordinary courts. There the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation. In the ET costs orders are the exception rather than the rule. In most cases the ET does not make any order for costs. If it does, it must act within rules that expressly confine the ET's power to specified circumstances, notably unreasonableness in the bringing or conduct of the proceedings. The ET manages, hears and decides the case and is normally the best judge of how to exercise its discretion.
8. There is therefore a strong, soundly based disinclination in the appellate tribunals and courts to upset any exercise of discretion at first instance. In this court permission is rarely given to appeal against costs orders. I have noticed a recent tendency to seek permission more frequently. That trend is probably a consequence of the comparatively large amounts of legal costs now incurred in the ETs.
9. An appeal against a costs order is doomed to failure, unless it is established that the order is vitiated by an error of legal principle, or that the order was not based on the relevant circumstances. An appeal will succeed if the order was obviously wrong. As a general rule it is recognised that a first instance decision-maker is better placed than an appellate body to make a balanced assessment of the interaction of the range of factors affecting the court's discretion. This is especially so when the power to order costs is expressly dependent on the unreasonable bringing or conduct of the proceedings. The ET spends more time overseeing the progress of the case through its preparatory stages and trying it than an appellate body will ever spend on an appeal limited to errors of law. The ET is familiar with the unfolding of the case over time. It has good opportunities for gaining insight into how those involved are conducting the proceedings. An appellate body's concern is principally with particular points of legal or procedural error in tribunal proceedings, which do not require immersion in all the details that may relate to the conduct of the parties.

The costs order

10. The ET made its costs order under Rule 40 ("Where a costs or expenses order may be made") within Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 after the claimant's withdrawal of her disability and race discrimination claims against the Council and their consequent dismissal. The reason for the withdrawal was not, the claimant insisted, their lack of merit, but rather that she felt worn down by conducting the case in person. She also complained of the oppressive and unreasonable conduct of the Council's representative and of the complexity of the case.
11. The ET commented that the case, which had occupied a part-heard (and never –completed) Pre-Hearing Review lasting 3 days in August 2007, had generated many documents and much correspondence. Unfortunately the Pre-Hearing Review had to be adjourned because of the illness of the Employment Judge. The purpose of that hearing was to decide whether the claimant suffered from a disability within the meaning of the Disability Discrimination Act 1995 (the DDA) and to decide certain points on time limits, a possible grant of an extension of time and whether the claimant should have to pay a deposit. The practical effect of the claimant's withdrawal of the claim was that no final judgment has ever been given by the ET on its merits.
12. The ET refused to grant an application by the claimant on 29 June 2009 for a review of the costs order, saying that she had been untruthful in relation to matters having an important bearing on her case and in relation to the application for costs. That destroyed her credibility. Her actions were characterised by the Employment Judge as amounting to an abuse of process.
13. On 31 January 2011 Elias LJ granted permission to appeal.
14. The claimant served a respondent's notice seeking to uphold the decision of the EAT on other grounds.

The ET judgment

15. In its detailed costs judgment (running to 40 paragraphs) the ET commented that the case had had "a none too easy passage" with a number of applications and Case Management Discussions, culminating in the three day Pre-Hearing Review in August 2007. In parts of her discrimination case the claimant had been represented by her union, which continues to act for her in an ongoing victimisation claim and unfair dismissal claim in the proceedings. She also had support for a while from the Sheffield Law Centre and the Sheffield Equality Council, but, for the most part, she had "gone it alone."
16. The ET, which had adjourned the hearing of the Council's costs application to give the claimant an opportunity to provide information concerning her assets, liabilities and outgoings, referred to Rule 40, which provides that there is a power to order costs against a person if, in bringing or conducting the proceedings, he has

"…acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived."

17. The ET also mentioned Rule 41 which governs the amount of any costs ordered.
18. The ET correctly stated that the absence of a determination of the claim on its merits did not preclude a ruling by it on costs. It added that:-

"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)[2004] IRLR 558.)"

19. I should say more about Macpherson at this point. It was a decision of this court allowing an appeal to the extent of varying a costs order by an ET against a claimant, who had made misleading statements about his medical condition in support of an application to adjourn the hearing of an unfair dismissal claim, which he subsequently withdrew. The ET granted an application by his employers for payment of the costs of the whole proceedings (estimated at more than £90,000), not just for the costs occasioned by the postponement of the hearing of the claim. The EAT dismissed the claimant's appeal, which this court unanimously allowed on the ground that the claimant's unreasonable conduct was only in relation to an adjournment which was not justified on the misleading medical grounds relied on by him, and not in relation to the whole proceedings.
20. The short proposition for which the ET cited Macpherson can only be fully understood by looking at a longer passage in paragraphs 39 and 40 of my judgment in that case. As the EAT cited in its judgment another part of those paragraphs from Macpherson, the two paragraphs should be quoted in full. In citing general propositions from a different judgment it is, of course, always important to look at the particular circumstances of the case which supply the context.

"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."

21. In that case the ET's error of law was in concluding that the conduct of the applicant of the whole of the case had been unreasonable so that the respondents were entitled to the whole of their costs. On the evidence the unreasonable conduct only commenced 11 months into the proceedings when the applicant made misleading statements about his health in order to secure an adjournment of a hearing.
22. In support of its application for a costs order in this case the Council made allegations against the claimant some of which were not accepted by the ET. For instance, the ET did not cast blame on the claimant's shoulders for the lack of progress of the claim. It explained that the whole of the evidence had not been heard. The uncompleted Pre-Hearing Review had been taken up with an examination of the claimant's case. The ET said that the Council had made more of a meal of the Review than should have been necessary. The ET commented :-

"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."

23. The ET was, however, swayed against the claimant on the matter of costs by its view that at the Pre-Hearing Review the claimant had said things which the ET believed "not to have been truthful" about the state of her health, about her personal injury claims and about her financial means.
24. The ET considered what the claimant had said to a doctor (Dr Scot P Darling), who had earlier examined her for defendants in personal injury proceedings, to the Disablement Benefits Appeals Panel and to the ET itself about her sporting activities. It concluded that: -

"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."

25. The claimant had falsely claimed, on an application form for a disability allowance in April 2007, that, prior to the onset of her back problems, she had been an active sportswoman going to the gym, running, and playing tennis and badminton and doing other sports 3 or 4 times a week, whereas now she could do none of those things following a traffic accident in 2004. She later accepted in her witness statement that she had not engaged in the sporting activities mentioned by her in the application form for disability allowance.
26. The claimant had stated untruthfully that she had not made a claim for personal injury arising out of a traffic accident. The ET considered that she had not been frank about that, finding that she had instructed two firms of solicitors in connection with the accident.
27. She had been untruthful in her statements to the tribunal about her means. Having said that she owned the house in which she lived, she later admitted in cross examination at an adjourned hearing that she was the owner of a second house near Doncaster. The ET was satisfied that, although the claimant might have considerable debts, she was the owner of two houses in reasonable condition with a total value of £280,000. The charges on the properties were mostly paid off by loans from family and friends. She had the means to meet a costs order.
28. On the other hand, the ET regarded the Council's costs claim of over £92,500 as a "highly exorbitant figure given that this is a case that was never heard." The ET commented that there was "more than a slight element of overkill on the part of the Respondents [the Council]."

"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."

29. It is contended on behalf of the claimant that the comments critical of the Council's conduct of the litigation do not seem to have been reflected in the ET's decision to make a 100% costs order against the claimant.

EAT judgment

30. Underhill J concluded that the ET's award of costs could not be sustained. He proceeded on the assumption that the claimant had lied in the respects identified in the ET judgment and that telling lies was unreasonable conduct, though he thought that it was debatable whether it constituted an abuse of process. He gave a number of reasons for quashing the ET's order.
31. In the first place, the ET did not attempt to carry out the exercise of taking into account "the nature, gravity and effect" of the claimant's conduct as indicated by this court in McPherson. The ET seemed to think that, once abuse of process was found, then, subject to the question of means, it ought to make a 100% order.
32. In the second place, the ET had misunderstood the passage cited from McPherson above relating to a causal nexus between the costs relied upon and the costs incurred. Underhill J pointed to the context of that passage, which related to the rejection of a submission by this court that, for a costs order to be made, there must be a precise causal relationship between the unreasonable conduct and the costs claimed. He said that an award of costs, being compensatory and not punitive in character, should reflect the "effect" of the conduct in question.
33. In the third place, if the ET had had regard to the "effect" of the claimant's lies, it could not have concluded that she ought to pay 100% of the costs of the proceedings, since many, if not most, of the costs had been incurred prior to the Pre-Hearing Review. As regards the effect of that conduct, it was hard to see how the lies told at the Review caused the Council any loss at all for which it was entitled to be compensated. The hearing was aborted by the withdrawal of the claim. Underhill J said that he could not see what effect the lies could have had on anything that had occurred up to the moment of withdrawal.
34. Finally, though it was not necessary for him to decide it, Underhill J doubted the gravity of any of the lies told by the claimant to the Tribunal.

Council's submissions

35. On behalf of the Council Mr Legard submits that the EAT was wrong to interfere with the ET's legitimate exercise of discretion and that this court should restore the ET's order. His main points can be shortly stated.
36. In the first place, it could not be said that the ET's exercise of its wide discretion was perverse or plainly wrong. The lies told by the claimant were central to her case of disability discrimination and victimisation. The Council incurred significant costs in challenging the claimant's contentions and credibility on disability discrimination. Given the ET's comments on the claimant's unreliability as a witness, it would have been irrational not to make an award of costs in this case.
37. In the second place, contrary to the holding of the EAT, there was no error of law in the ET's understanding of this court's judgments in McPherson. The ET found that she had not given truthful evidence on relevant matters. That was clearly unreasonable conduct of the proceedings. It was unnecessary for the ET to consider expressly the "nature, gravity and effect" of the claimant's conduct as indicated in Mcpherson under separate individual headings. The ET clearly had the relevant aspects of the claimant's conduct in contemplation when considering the rival submissions. It was clear that the untruthful evidence and the issues of the claimant's credibility had caused the Council to incur significant costs which were therefore "attributable to" unreasonable conduct on the part of the claimant.
38. In any event the EAT was wrong to quash the costs order in its entirety. Instead, it should have remitted the matter to the ET for reconsideration.

Discussion and conclusion

39. I begin with some words of caution, first about the citation and value of authorities on costs questions and, secondly, about the dangers of adopting an over-analytical approach to the exercise of a broad discretion.
40. The actual words of Rule 40 are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations. Unfortunately, the leading judgment in McPherson delivered by me has created some confusion in the ET, EAT and in this court. I say "unfortunately" because it was never my intention to re-write the rule, or to add a gloss to it, either by disregarding questions of causation or by requiring the ET to dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as "nature" "gravity" and "effect." Perhaps I should have said less and simply kept to the actual words of the rule.
41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in Mc Pherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.
42. On matters of discretion an earlier case only stands as authority for what are, or what are not, the principles governing the discretion and serving only as a broad steer on the factors covered by the paramount principle of relevance. A costs decision in one case will not in most cases pre-determine the outcome of a costs application in another case: the facts of the cases will be different, as will be the interaction of the relevant factors with one another and the varying weight to be attached to them.
43. Next, on the evidence before the ET, I agree with the Council that the ET was entitled to proceed to a decision on the Council's costs application on the basis that the claimant's conduct of the proceedings was unreasonable and that it had jurisdiction under Rule 40 to make an order for costs against her. When, as here, the case has been withdrawn before it has run the full course to a final conclusion on the merits, difficulties on costs applications are bound to arise from the absence of findings of credibility, the absence of findings of disputed facts and the absence of findings on issues of liability. The Tribunal or court has to do the best it can with such material as it has in a case that has never been fully tried.
44. I am sure that it cannot be right to act on the suggestion of Mr Sendall, who appeared for the claimant, that, if the claimant was disabled then, even if she had exaggerated her disability in her evidence, she would have won her discrimination case and there would have been no order for costs. I am not prepared to act on the basis of suppositions about what might have happened, if the claimant had continued with the case. The plain fact is that she could not have won her case, because she dropped it before it could be decided by the ET.
45. There was solid evidence to support the ET's findings of the claimant's untruthfulness at the Pre-Hearing Review on matters material to her disability discrimination claim. In the present circumstances she can hardly deny the materiality of matters on which she gave evidence. She denied that she told a Dr Darling, who had made a medical report, about the effect of her accidents on her ability to perform various sporting activities. Dr Darling's report included statements about the effect of the accidents on the claimant's ability to play sport. The claimant denied that she had said anything about it to the doctor. She could not, however, explain away the fact that, in a form completed by her for disability living allowance, she had made statements to that effect about her diminished sporting prowess. The ET was entitled to proceed on the basis that her denial that she had discussed such matters with Dr Darling was probably untrue.
46. The effect of the claimant's conduct in giving differing accounts to different people about her degree of disability after her accidents was that her conduct was unreasonable and that of the Council in questioning her credibility as a witness on relevant matters and to incur costs in doing that was reasonable.
47. The claimant's unreasonable conduct regarding her evidence made it reasonable for the Council to challenge the credibility of other aspects of her evidence. She had denied pursuing a personal injury claim in connection with a road traffic accident, whereas documents obtained by the Council showed that in fact she had instructed 2 firms of solicitors in connection with it. As for her means, which were relevant to the discretion on costs, her evidence did not initially disclose ownership of a second house.
48. In my judgment, there was no error of law in the ET's finding of unreasonable conduct by the claimant. That finding gave it jurisdiction to make an order for costs. The real question is whether there was an error of law in the ET exercising its discretion to order the claimant to pay as much as 100% of those costs, particularly in view of the ET's criticisms of the way in which the Council had gone over the top in defending the case.
49. I am conscious that, as orders for costs are based on and reflect broad brush first instance assessments, it is not the function of an appeal court to tinker with them. Legal microscopes and forensic toothpicks are not always the right tools for appellate judging.
50. In this case I agree with Underhill J that there is an error of law in the ET's judgment on costs and that its order cannot stand. The ET correctly held that it had jurisdiction to make a costs order, but it then failed to factor into the exercise of its discretion the significant criticisms voiced by it of the Council's litigation conduct and the effect of that conduct on the costs incurred by the Council and claimed by it from the claimant.
51. I do not, however, agree with Underhill J that it follows from the error of the ET that no order for costs should be made against the claimant. It was the ET's findings about her conduct that gave the ET jurisdiction to make an order for costs. I would not therefore accept Mr Legard's primary submission that this court should simply allow the appeal and restore the order of the ET. One possible way of dealing with the ET's failure to factor in the Council's conduct would be to remit the matter to the same ET for further consideration in the light of the judgments in this court. That would have the disadvantage of forcing the parties to incur more costs and suffer more delay if they were unable to reach agreement. Neither side in fact wanted the matter to be remitted, if we decided to allow the appeal. It seems to me that this court has available to it sufficient relevant material to enable it to exercise the discretion afresh itself and to substitute its own decision on costs for that of the ET.
52. In my judgment, although the ET had jurisdiction to make a costs order, it erred in law in the exercise of its discretion. If, as should have been done, the criticisms of the Council's litigation conduct had been factored into the picture as a whole, the ET would have seen that the claimant's unreasonable conduct was not the only relevant factor in the exercise of the discretion. The claimant's conduct and its effect on the costs should not be considered in isolation from the rest of the case, including the Council's conduct and its likely effect on the length and costs of the Pre-Hearing Review.
53. Doing the best I can on the materials available I would allow the appeal to the extent of restoring and varying the ET's order so that the claimant had to pay 50% of the costs incurred by the Council in relation to the Pre-Hearing Review and the subsequent costs hearings in the ET. The claimant was guilty of unreasonable conduct in the proceedings, which gave the ET jurisdiction to order costs. It did not follow that the claimant should pay all the Council's costs of the entire proceedings. The ET rejected some of the Council's criticisms of the claimant. It also criticised the Council for making more of a meal than was necessary to respond to the claimant's case. Those factors are relevant to how the costs discretion should be exercised and operate against a 100% order in the Council's favour.
54. The costs should also be limited to those reasonably and necessarily incurred by the Council in respect of that hearing, since the untruthfulness of the claimant and the overdone defence of the Council were mainly material only to that phase of the proceedings.

Result

55. I would allow the appeal and restore the costs order of the ET, but varied so as to provide that the claimant is ordered to pay to the Council 50%, instead of 100%, of the costs reasonably and necessarily incurred by it in the ET in relation to the Pre-Hearing Review.

Lord Justice Patten:

56. I agree.

Sir Henry Brooke:

57. I also agree.