K Pilgrim v Jasmine Care (Holdings) Ltd
[2024] EAT 179
Melanie Carroll-Cliffe v Pembrey and Burry Port Town Council
2 August 2024
[2024] EAT 125
Employment Appeal Tribunal
An employee partly won her case against her employer. The court decided the employer didn't have to pay the employee's legal fees because the case was complicated, and the employee didn't win everything. The judge agreed with the initial court's decision because the first court was in the best position to understand the case and make a fair decision about costs.
Key Facts
- •Melanie Carroll-Cliffe (claimant/appellant) sued Pembrey and Burry Port Town Council (respondent) for constructive unfair and wrongful dismissal, protected disclosure detriment, automatic unfair dismissal, equal pay, and various money claims.
- •Employment Tribunal (ET) upheld constructive unfair and wrongful dismissal claims but dismissed the rest.
- •Claimant appealed the ET's costs decision, which awarded her £1000 for disclosure and bundle preparation but denied costs for the rest of the case.
- •The appeal focused on whether the respondent's defense to constructive dismissal claims lacked reasonable prospect of success and whether the ET correctly exercised its discretion on costs.
Legal Principles
In ET proceedings, costs orders are exceptional and do not follow the event.
Gee v Shell Ltd [2003] IRLR 82 CA
Rule 76 ET Rules governs costs: a two-stage process involving threshold conditions (vexatious conduct or no reasonable prospect of success) and discretionary considerations.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 76
When assessing 'no reasonable prospect of success,' the ET considers what the party knew or ought reasonably to have known, considering the information available at the claim's outset, not with hindsight.
Radia v Jefferies International Ltd UKEAT/0007/18
The ET's discretion on costs is broad but compensatory, not punitive. Proportionality is a relevant factor.
Cartiers Superfoods Ltd v Laws [1978] IRLR 315, Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, McPherson v PNP Paribas (London Branch) [2004] EWCA Civ 569
Appeals against costs decisions rarely succeed unless there's an error of legal principle or the decision is obviously wrong.
Yerrakalva
Conduct pre-dating proceedings cannot be considered 'conduct of the proceedings' under rule 76(1)(a), but costs awarded under 76(1)(a) can include pre-litigation work.
Health Development Agency v Parish [2004] IRLR 550 EAT, Sunuva Ltd v Martin UKEAT/0174/17
Outcomes
Appeal dismissed.
The ET permissibly considered what the respondent knew or ought to have known when assessing costs under Rule 76(1). The ET's assessment didn't ignore its liability findings and was permissible given the nuanced nature of those findings. The ET also permissibly exercised its discretion to deny costs, considering both parties' successes and failures, and the complex factual matrix of the case. The ET correctly applied the law regarding pre-proceeding conduct.