In Horizon Security Services Ltd v Ndeze and another UKEAT/0071/14, one of the few cases on the recovery of fees since their introduction in July 2013, the EAT has made a costs order against a respondent for the appellant’s EAT fees.
In this case the EAT considered an application for a losing party to repay the applicant’s £1600 fees in respect of a successful appeal against an employment tribunal’s decision. The EAT considered the factors to take into account when making such an order.
The EAT held that the respondent’s means to pay and whether the appeal was successful (in full or in part) are relevant factors when considering whether to make a costs order for tribunal fees.
The facts of the case are that Horizon Security Services Ltd successfully appealed to the EAT against an employment tribunal’s decision in favour of Mr Ndeze (an individual, who did not participate in the EAT proceedings) and the PCS Group. Horizon paid an issue fee and a hearing fee totalling £1,600 in its appeal.
Under rule 34A (2A) of the EAT Rules, Horizon asked the EAT to exercise its discretion to make a costs order against the respondent in respect of the EAT fees paid.
The EAT ordered the respondent to pay the appellant’s EAT fees. HHJ Eady QC stated that the EAT has a” broad discretion” to order that fees be repaid by the respondent. It is separate to the discretion to make a costs order where a party has behaved unreasonably. Following the principle set out in Portnykh v Nomura International plc the Court took into account the respondent’s ability to pay and the fact that Horizon had achieved substantial success on its appeal.
Although this case deals with EAT fees only, it is a useful indication of the approach likely to be taken with regard to cost awards for tribunal fees.
James Haley, Solicitor & Director, Just Employment Ltd.