“35. ... the governing structure remains that of a costs free user friendly jurisdiction in which the power to award costs is not of much an exception as a means to protecting its essential character.”
“62. ... The Tribunal may consider, in a given case, under (a), that a complainant acted unreasonably, in bringing, or continuing the proceedings, because they had no reasonable prospect of success, and that was something which they knew; but it may also conclude that the case crosses the threshold under (b) simply because the claims, in fact, in the Tribunal’s view, had no reasonable prospect of success, even though the complainant did not realise it at the time. The test is an objective one, and therefore turns not on whether they thought they had a good case, but whether they actually did. 63. ... However, in such a case, what the party actually thought or knew, or could reasonably be expected to have appreciated, about the prospects of success, may, and usually will, be highly relevant at the second stage, of exercise of the discretion. 64. This means that, in practice, where costs are sought both through the Rule 76(1)(a) and the Rule 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?”
“65. ... It should first, at stage 1, consider whether that was, objectively, the position, when the claim was begun. If so, then at stage 2 the Tribunal will usually need to consider whether, at that time, the complainant knew this to be the case, or at least reasonably ought to have known it. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation. 66. This point needs to be considered in a little more detail. It may be observed that the test of “no reasonable prospect of success” appears in both Rule 76(1)(b), and in the strike-out Rule (Rule 37(1)(a)). But the task carried out by the Tribunal under each of these provisions is different. When considering a strike-out application, the Tribunal must decide whether the complaint or argument in question “has” - at the very same time when it decides that application - no reasonable prospect, based on the information available to the Tribunal at that point. Such applications are often considered at an early stage in the litigation, without the benefit of sight of any evidence; and the Tribunal’s task is to assess the prospects of the claim succeeding if or when it comes to trial in the future. Those prospects are usually considered, therefore, on the basis of the case asserted, taken at its highest, although the Tribunal can also take account, for example, of key documents that may be before it at that point. 67. Where the Tribunal is considering a costs application at the end of, or after, a trial, it has to decide whether the claims “had” no reasonable prospect of success, judged on the basis of the information that was known or reasonably available at the start, and considering how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked. But the Tribunal is making that decision at a later point in time, when it has much more information and evidence available to it, following the trial having in fact taken place. As long as it maintains its focus on the question of how things would have looked at the time when the claim began, it may, and should, take account of any information it has gained, and evidence it has seen, by virtue of having heard the case, that may properly cast light back on that question. But it should not have regard to information or evidence which would not have been available at that earlier time. 68. ... The Tribunal may draw on the evidence that it has read and heard at the full hearing, provided that it does so to inform its view of the prospects at the earlier time, based on what was known, or could reasonably have been known, back then. 69. Further, the mere fact that there were factual disputes, which could only be resolved by hearing evidence, and fact finding, arising from the final Hearing, does not necessarily mean that the Tribunal cannot properly conclude that the claim had no reasonable prospects from the outset, nor that it cannot conclude that the complainant could or should have appreciated this from the outset. That still depends on what they knew, or ought to have known, were the true facts, and what view they could reasonably have taken of the prospects of the claims, in light of those facts. ...”
“... to look and see what the party in question knew or ought to have known if he had gone about the matter sensibly.”
“40. ... 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 [the respondent] to prove that the specific unreasonable conduct by [the claimant] caused particular costs to be incurred. ...”
“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. …”
“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. … 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.”
“21. ... We consider it is unrealistic to have expected the respondent, even as a professionally represented respondent, to have anticipated from the outset how all these individual elements would have evidentially panned out to result in the eventual analysis that the tribunal undertook when upholding the claimant’s two successful complaints.”
“26. Some of the letter was misguided, such as redirecting the claimant to the Labour Councillors, but we accepted was born of the respondent wanting to set out that what Labour said was not their corporate position. Some of it was more serious ... [b]ut whilst it could be said the respondent if it reflected, ... should have known it was an unsustainable statement, we have to place it within the context that the correspondence that was passing between the parties at the time, which was multifactorial. The correspondence came from a place where the respondent had been seeking to engage on steps to return the claimant to the workplace and hold a round table meeting rather than engage in lengthy combative letter writing. We found the respondent had been largely acting in good faith. We found that some of the claimant’s demands had been unrealistic, unreasonable and not focused on assisting with a return to the workplace. Bearing this in mind together with the general way in which the point had been pleaded we do not consider that the respondent knew or ought to have known at the time that our eventual analysis would be what it was. From their perspective at the time of filing their ET3 response, they had an arguable basis on which to say they had been responding, on the whole, reasonably to the situation they were faced with, and in seeking to facilitate discussions to return the claimant to work, and they had a reasonable prospect overall of establishing there was no cumulative breach.”
“27. ... Here we have to look at the whole picture of the litigation. This was a hard fought piece of litigation on both sides. There were measures of success and loss on both sides. The claimant did not succeed in some significant aspects of her case including the equal pay claim that was taken to a public preliminary hearing before EJ Frazer, in establishing she made protected disclosures, the protected disclosure detriment claim did not succeed on time limit grounds, the protected disclosure dismissal claim was unsuccessful, as were the two breach of contract pay claims. These are matters in respect of which the respondent will have likewise incurred significant legal fees in mounting their defence. At the remedy stage the claimant presented various arguments which were not resolved in her favour. These are not the kind of exceptional circumstances in which we consider it appropriate to award the claimant recovery of her legal costs in what is ordinarily a cost free forum. It was a case, as Mr Bunting put it, where the claimant was entitled to bring her claim, and the respondent entitled to defend it.”
“28. The claimant’s first complaint is that the respondent did not engage with Acas at the outset or subsequently to consider any attempt at negotiation, despite attempts being made through solicitors. Acas conciliation, is however, confidential and is not a matter that is put before the tribunal, and there is both public policy principles and statutory force behind that. Moreover, Acas conciliation is entirely voluntary and again there are strong public policy principles behind this. The respondent was not compelled to engage and it is not appropriate for the Tribunal to delve into that process. We do not find that it amounts to unreasonable conduct on their part. Acas conciliation that took place before the ET1 claim form was presented would also fall outside the remit of Rule 76(1)(a) in any event as conduct that pre-dates the proceedings cannot be the conduct of the proceedings.”
“33. The claimant also complains that the respondent did not in the course of proceedings make a better offer than that, or indeed go back and accept her November 2018 offer. There is an overlap here with the claimant’s argument that the respondent’s response had no reasonable prospect of success, hence why we addressed that point first, above. In our judgement, the respondent did not ought reasonably to have known that its defence to the constructive unfair dismissal claim, and wrongful dismissal complaints was inevitably going to fail in the way it did. Moreover, they were entitled to defend the other parts of the claim that they successfully did, including serious allegations of sex discrimination in the form of equal pay litigation and the numerous protected disclosure complaints. It was not unreasonable to defend the litigation and therefore not unreasonable to not make monetary offers to the claimant or to go back and settle in the terms the claimant outlined in November 2018. It also does not follow that the respondent should reasonably have anticipated a picture in which (a) they would lose the litigation in the way that they did, (b) that the claimant would end up receiving the sum she did in the Remedy Judgment (given the complex arguments there were about that), or (c) that they would reasonably anticipate the November 2018 offer was better than that which the claimant would be eventually awarded. Not only was the eventual Remedy Judgment award complex and multifactorial, the claimant there did not succeed in establishing the tribunal should use the pay figures she was putting forward, and the claimant is now, after the event, seeking to put financial figures against the November 2018 offer that were never actually set out at the time. Furthermore evidence as to, for example, mitigation efforts, lay in the hands of the claimant, not the respondent.”
“82. We do not exercise our discretion to award the claimant the costs that she is seeking. Our reasoning for this is similar to that set out above in relation to rule 76(1)(b). This was litigation where both parties had measures of success and measures of loss. The respondent was entitled to defend the claim and successfully defended the protected disclosure, equal pay, and breach of contract (wages complaints). The case always needed to go to hearing and preparation for that hearing would always have needed to be done. To award the claimant the full costs she is seeking would be penalising the respondent out of proportion to the unreasonable conduct in question. The claimant pursues her costs application on the basis that the respondent had an unreasonable mindset throughout the proceedings that coloured everything that they did, including as the claimant would term it, the clinical removal of pivotal documents and the manipulation of the proceedings. That no doubt reflects how the claimant views things but it simply does not reflect the findings of fact that we made in this case.”