Lavinia Day v East and North Hertfordshire NHS Trust [2026] EAT 110

[2026] EAT 110Case No EA-2024-001674-LACase No EA-2024-001676-LA
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 22 July 2026
Before
ANDREW BURNS KCDEPUTY JUDGE OF THE HIGH COURT
Between
MS LAVINIA DAYAppellant- and –
Between
EAST AND NORTH HERTFORDSHIRE NHS TRUSTRespondent
Dr Joanna Kerr (instructed by Tilbrook’s Solicitors) for AppellantMr Andrew Rhodes (instructed by Mills & Reeve LLP) for RespondentHearing Hearing date: 15 July 2026
JUDGMENT
[1]This appeal concerns the approach of an employment tribunal (“the ET”) in taking into account the means of a claimant when assessing a costs order and whether a proper summary assessment process was undertaken in setting the amount of costs to be paid.

Factual Background

[2]The Appellant (“the Claimant”) was a clinical support worker employed by the Respondent NHS Trust between October 2019 and November 2022. The Claimant was absent from work in 2021 with Covid-19 and long Covid. During her prolonged absence she was invited to a number of long-term sickness absence review meetings. She was initially accompanied by a UNISON representative but became dissatisfied and joined the Workers of England Union. The union was not permitted to accompany her to a review meeting as it was not accredited or recognised by the Respondent.[3]The sickness absence meetings were concerned with her health, wellbeing and prospects of returning to work. The Claimant brought a claim under sections 10 and 11 of the Employment Relations Act 1999 (“ERA 1999”) alleging that she had been denied the statutory right to be accompanied at a disciplinary meeting. Following a deposit order and attempted strike out, the ET final hearing lasted 2 days over 23-24 September 2024. The Claimant provided an addendum witness statement on the first day which was admitted. The Respondent complained that the Claimant had delayed exchange of statements until 12 September 2024. At the end of the hearing the ET heard evidence and submissions as to costs.

The ET Judgment

[4]The ET found the Claimant’s evidence to be evasive on occasion and did not find the Claimant to be a credible witness. The ET commented that her portrayal of her case was not entirely consistent with her claim form. The ET found the Respondent’s two witnesses to be credible and their evidence consistent with the documentation.[5]The ET found that the meetings in question were long‑term sickness absence review meetings. They were conducted under the Respondent’s sickness absence policy. Their purpose was to discuss the claimant’s health, prognosis, support, potential adjustments and eventual return to work. The meetings were not disciplinary hearings, nor grievance hearings, within the meaning of s.10 ERA 1999. The ET found that the Claimant understood them to be sickness absence meetings, had attended similar meetings previously and had never suggested at the time that they were disciplinary in nature. The ET dismissed her claim.[6]Following an oral judgment, the Respondent applied for costs pursuant to rule 76(1)(a) and (b) of the Employment Tribunal Rules of Procedure 2013 (now r.74 of the 2024 Rules). The ET found that the claim had no reasonable prospects of success and that the Claimant had acted unreasonably in pursuing it, knowing that the meetings were not disciplinary hearings. It noted the deposit order made against the Claimant on 1 December 2022 because the claim had little reasonable prospect of success and a subsequent strike‑out warning given by the ET in May 2023. The Respondent also wrote a costs warning letter dated 10 April 2024 identifying the fundamental weakness in her claim, but she persisted despite representation by her trade union and legal advice from solicitors.[7]The ET also took into account that the Claimant’s Schedule of Loss of about £88,000 was unreasonable having regard to the statutory maximum remedy under s.11 ERA 1999 being limited to two weeks’ pay (approximately £679). It was “completely removed from the reality of this case” and was completely unreasonable for the Claimant to submit.[8]The ET was asked to take into account the Claimant’s means. It directed itself at paragraphs 63-64 of its written reasons: 63. “Rule 84 ETR states:
“Ability to pay In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.” 64. As per rule 84, “ability to pay” is something that “may” be taken into account at each of the last two stages of the decision-making. That is: should an award be made at all; if so, what is the size of the award (and the timetable for payment). The Tribunal is not obliged to take “ability to pay” into account but should specify whether it has done so or not (and, if not, why not). Generally speaking, where a party wants the Tribunal to decide that they do not have the ability to pay, then the onus is on them to firstly raise the point and then provide evidence to back up the argument.”
[9]The ET recorded the Claimant’s evidence regarding means at paragraph 50:
“50. I heard evidence from the Claimant. In response to the questions of what work the Claimant was doing, what was the Claimant’s income, assets, dependents and whether the Claimant had had applied for any jobs, and anything else the Claimant wanted to tell the Employment Tribunal about her financial situation, the Claimant stated that she had been doing an online training course to work with young people with special needs and mental health issues for the last year. She has so far done level 1-3 and had the ability to go to level 5, which was the level of a teacher. She had not applied for any jobs. She had no income and no assets and relies upon her husband who works for the NHS fixing ambulances. The Claimant has three children aged 24, 20 and 15. The 24 year old is a teaching assistant and the lives with her and her husband as does the 15 year old. The 20 year old is at university and does not live at home. The Claimant is not in receipt of any benefits. The Claimant said that her rent is £600 her husband earnings £1,800 net. She said that the rest of her husband’s salary goes on food and bills. Mr Rhodes referred the Employment Tribunal to page 34. I pointed out that page 34 was at the preliminary hearing where the deposit order was made on 1 December 2022 where the Claimant said that the outgoings (food, electricity, gas) were in total £520-600 pcm, the Claimant’s response was that electricity had gone up since then.”
[10]In analysing and reaching conclusions on the exercise of discretion and the amount of costs the ET said at paragraphs 70-71:
“70. In considering whether a costs order should be made, I note that costs are the exception not the rule, but I conclude that costs should be awarded based upon the threshold of rule 76(1)(a). The Claimant had legal advice at the earliest stage with a solicitor drafting her witness statement and schedule of loss, both of which the Claimant signed. The Claimant’s witness statement exchanged on 12 September 2024 still did not mention that she believed that the sickness absence meetings were disciplinary meetings. Even the Claimant’s addendum witness statement did not say that the sickness absence meetings were disciplinary meetings, just that the Claimant did not know the purpose of the sickness absence meetings. Evidence that I did not accept. The Claimant was given a cost warning on 10 April 2024 from the Respondent and that indicated that the Claimant’s entire case turned on whether the hearings were disciplinary meetings, yet in the production of the either the first witness statement or the addendum witness statement it did not state explicitly that the Claimant considered that the sickness absence meetings were disciplinary meetings. “71. In Dr Kerr’ submissions, the Claimant requested that I take into consideration her means if the Employment Tribunal was minded to make a costs order. I heard evidence from the Claimant as to her means after deciding to make a cost order. It appeared to me that the Claimant was not working by reason of choice as the Claimant was not looking for work. The Claimant has two earners in her home, her husband who works for the NHS fixing ambulances and a daughter as a teaching assistant. The Claimant’s husband is meeting all their livings costs allowing the Claimant not to work. The Claimant does not get any benefits. The Claimant does not have any assets. The Claimant has an additional qualification to obtain employment but is not looking for work. Bills and food at the preliminary hearing on 1 December 2022 was £350.00 approximately and then upwards of £150 for electricity. I considered the Claimant’s affordability on that basis. However, the Claimant knew the risks of pursuing her case and although she told me that she withdrew her claim with her solicitor in April 2024 she still pursued the claim in providing a witness statement and schedule of loss and indeed attending the hearing and saying nothing about not wanting to pursue the case to the Employment Tribunal until after oral judgment was given. It appears that her solicitors have severely let her down, however, the fact remains it is the Claimant’s case, and she certainly appreciated since April that she should not pursue the case. I consider that the Claimant knew from 1 December 2022 not to pursue the case, and I award costs from that date. I award costs of £14,123.39.”

The Appeal

[11]By Re-Amended Grounds of Appeal (for which I grant permission today as it is just to do so, the application not being opposed by the Respondent) the Claimant appeals on 3 grounds. These flow from orders made by DHCJ Bowers KC and myself at the sift stage. Judge Bowers said “it is reasonably arguable that the family means should not have been taken into account (unless possibly they have indicated they would be responsible for the costs)”. As the second appeal was broadly the same, I also directed it to this hearing on the same grounds saying “it was arguably unclear how the affordability affected the amount that the ET ordered”. I noted the point that the ET’s power to order a specified sum may be where it is able to make a summary assessment and so directed that the Notice of Appeal be amended to make this point express. That has now been done.[12]The draft Re-Amended Grounds of Appeal contain three essential grounds:a. …given that the Claimant has no means of either income or of capital to be able to make a payment, it was wrong in principle for the Employment Judge to make any Costs Order against her. This seems, at paragraph 50, to have been based upon whether other members of the Claimant’s family could afford to pay anything.b. …that such an approach to the quantification of a Costs Order…is wrong in principle and also unfair, not only to the Claimant, but also to the Claimant’s family who were not parties.c. The Judge failed to carry out any summary assessment of the Respondent’s costs to determine whether or not they were reasonable.[13]The Respondent served a detailed Answer saying:a. Ability to Pay - The ET heard evidence concerning the Claimant’s financial circumstances, including her employment status, household income, dependants and expenditure and its decision was reasonably open to the ET.b. Consideration of the Husband’s Means – The ET were entitled to take into account the financial support provided by a third party when assessing a claimant’s ability to pay. The ET found that the Claimant was not working by choice and that her husband met all household living expenses and so it was entitled to take account of the husband’s financial support when assessing the appropriate level of any costs award.c. Role of the Daughter’s Income - The daughter’s earnings were recorded as evidence as to which children were dependants and which had independent incomes. That was relevant to the assessment of the Claimant’s overall means. If the reasoning was insufficiently clear, the Respondent invited a Burns/Barke procedure.d. Respondent’s Public Funding – the Respondent comments on this, but Ground 8 was deleted and withdrawn from the Re-Amended Grounds of Appeal that is pursued having regard to my earlier order.

Legal Principles

[14]Rule 76 of the Employment Tribunal Rules 2013 (now r.74 of the 2024 Rules) provided that: When a costs order or a preparation time order may or shall be made 76.

(b) any claim or response had no reasonable prospect of success…

[15]Rule 84 of the 2013 ET Rules (now r.82 of the 2024 Rules) provided: In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.[16]In Willis v GWB Harthills LLP [2025] EAT 79 this was categorised under three stages: Stage 1: is there conduct that could warrant making a costs order (“threshold conduct”), Stage 2: if so, should an award of costs be made (“the discretionary decision”) – the Employment Tribunal may have regard to ability to pay at this stage and Stage 3: if so, what amount of costs should be awarded (“the quantum decision”) – the Employment Tribunal may also have regard to ability to pay at this stage. HHJ Tayler said at paragraph 8:
“…if, for example, an Employment Tribunal decides it will have regard to a party’s ability to pay and concludes it is such that the party can meet the full award of costs sought when making the Stage 3 quantum decision, it goes without saying that the Employment Tribunal concluded that the party’s ability to pay was not so limited that it should not make an award of costs at all when considering the Stage 2 discretionary decision. In such circumstances, there would be no requirement for the Employment Tribunal to refer specifically to ability to pay at stage 2, where it has done so at stage 3.”
[17]The paying party's ability to pay will be relevant in many cases but does not have to be considered. It will often be desirable, but a tribunal has a broad discretion whether or not to have regard to the ability to pay. If a tribunal decides not to do so, it should (briefly) say why. One example is if the paying party declines to give evidence of means. If the tribunal decides to take into account ability to pay, it should set out (in summary) its findings about ability to pay, say what impact this has had on its decision whether to award costs, or on the amount of costs, and explain why.[18]Means may also be taken into account whether or not the costs are to be assessed summarily or sent for detailed assessment (at which point the county court or tribunal may again take ability to pay into account). Means can also be considered at the enforcement stage.[19]The fact that a party's ability to pay is limited does not require the tribunal to assess a sum that is confined to an amount that they could pay: Arrowsmith v Nottingham Trent University [2012] ICR 159 at paragraph 37. Vaughan v London Borough of Lewisham [2013] IRLR 713 held that a tribunal is not required to make a firm finding as to the maximum that it believes a party could pay, then or in the future, and to limit the award to that amount. The question of affordability does not have to be decided once and for all by reference to the party's means as at the moment the order falls to be made. Questions of what is realistic or reasonable to pay are very open-ended and the tribunal may give the receiving party the benefit of any doubt, even to a generous extent. Affordability is not the sole criterion for the exercise of the costs’ discretion.[20]The tribunal can consider both capital and income. As the EAT commented in Willis at paragraph 9:
“Capital assets may be an important aspect of a party’s ability to pay even if not immediately or easily realisable: Shields Automotive Ltd v Greig UKEATS/0024/10. Where assets are jointly owned, such as a family home, it may be relevant to consider the share held by the party against whom the costs application is made: Howman v The Queen Elizabeth Hospital Kings Lynn UKEAT/0509/12/JOJ; including the effect of the sale on the other person who jointly owns the asset.”
[21]In Willis the tribunal was sceptical of the claimant’s evidence and so might have chosen to disregard the claimant’s ability to pay. As it chose to have regard to the claimant’s ability to pay, it was “entitled to adopt a reasonably rosy assessment of the claimant’s likely future circumstances”. Another case in which the value of a family house was taken into account when assessing means is Sud v London Borough of Ealing UKEAT/0482/11/LA in which the EAT (upheld by the Court of Appeal on other grounds) said:
“The Tribunal went on to consider what order for costs it should make. It had specific regard to the paying party's ability to pay. It reminded itself of the evidence in respect of her husband's earnings, her own earnings, the value of their house, the extent to which it was subject to mortgage, the amount of the mortgage repayments, and the nature of other debts owed to family members and to the solicitors. The Tribunal concluded, having had regard to those means, that they were such that they should not prevent a costs order being made. They did take those matters into account because they acknowledged that the Claimant's finances were limited and would not make it easy for her to pay an order for costs, but they did record that there was capital available to her in the form of her home, against which an order for costs might be secured in due course. They had regard to what appeared to be the amount of a costs award on a full liability basis and considered that it would extend far beyond £10,000.”
[22]A tribunal may in an appropriate case (not just in exceptional circumstances) have regard to a third party's means. In Abaya v Leeds Teaching Hospital NHS Trust UKEAT/0258/16, it was common ground that as a matter of principle a tribunal can take into account the position of a third party. Singh J approved the submission that “what it must then do is consider what impact the third party's position has, if any, on the Claimant's ability to pay” saying at paragraph 25:
“One has to operate this kind of discretion according to common sense and having a very real regard to the real world. There may be an almost infinite variety of circumstances. A person who is a party to an Employment Tribunal case may have ready access to funds from a third party source, whether by way of loan or by other means. In appropriate cases, an enquiry may have to be undertaken about what those means are. However, as Mr Crozier submits - correctly, in my judgment - the ultimate purpose of such an enquiry is to determine what the party's ability to pay is and what impact therefore the third party's position may have on his or her ability to pay, if any.”
[23]The EAT allowed the appeal as the tribunal only said that “the Claimant and his family have little money at the moment” but did not say how the wife’s income affected the Claimant’s ability to pay having regard to his voluntary arrangement with his creditors who were owed £23,000 and paying £533 per month towards those debts. The resources of a third party may be relevant, but only insofar as they impact on the paying party's ability to pay. As the EAT said in QR v The GI Group Ltd [2025] EAT 178 at paragraph 62:
“62. In the present case, I cannot see the EJ ever set out, referred to or asked herself how the husband's disposable income impacted on the Claimant's ability to pay. Just because she was financially dependent on him did not mean that she had access to all his disposable income; just because he had disposable income of £250-£300 a month did not mean that formed part of her ability to pay a costs award. I appreciate that brevity is a virtue in tribunal reasons and a costs decision may be reached on a broad-brush basis. I accept, too, that a tribunal is not required in every case to find an exact amount or percentage which was available to a paying party from a third party. Abaya should not be understood as erecting a legal rule to that effect when the wording of rule 84 is the best guide. But still the decision must show that the employment judge has examined the question through the proper statutory lens. That is especially so in the context of a costs award of around £10,000 which is, for most people, a lot of money. In §27, however, I do not consider that the EJ did that. She expressly took into account the “joint income of the Claimant and her husband”: she did not focus solely on the Claimant's ability to pay - albeit as impacted by her husband's income - as rule 84 required.”
[24]The EAT may only interfere with a tribunal’s costs’ order where the tribunal has made an error of law or the costs discretion has been exercised contrary to principle or in a way that is plainly wrong. Orders for costs are rightly based on a broad-brush approach and an appeal court must not tinker.[25]The amount of a costs order is provided for in r.78 of the 2013 Rules (now r.76 of the 2024 Rules). This provides: (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles;[26]The ET may therefore order a specified amount or make an order for a detailed assessment. The specified amount must be a summary assessment of the costs. The concepts of summary and detailed assessment are taken from the Civil Procedure Rules (“CPR”). They provide that assessment of costs on the standard basis will not allow costs which have been unreasonably incurred or are unreasonable in amount and will only allow costs which are proportionate to the matters in issue. Guideline figures for solicitors’ hourly rates are published. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred. On the standard basis the court will resolve in favour of the paying party any doubt which it may have as to whether the costs were reasonably incurred or were reasonable and proportionate in amount. On the indemnity basis the receiving party has the benefit of the doubt.[27]Kovacs v Queen Mary and Westfield College [2002] IRLR 414 indicated that a tribunal may make a summary assessment within the cap where the tribunal feels able to make a summary assessment that would properly compensate the other party for the costs.[28]Under CPR a schedule or statement of costs must be served a day before the hearing to enable the court or tribunal to assess the costs summarily. In the employment tribunal the receiving party does not have to serve a schedule of costs on the other side or on the tribunal, but it is usually beneficial to do so. It may be difficult and protracted for the tribunal to carry out a summary assessment without the costs set out in a convenient schedule. The tribunal and paying party are entitled to know precisely what is being claimed to enable them to query any particular amounts. As the EAT said in Ayoola v St Christopher's Fellowship UKEAT/0508/13 at paragraph 51:
“Although no particular procedure is laid down in the Tribunal Rules for a summary assessment of costs, the discretion as to the amount of an award must still be exercised judicially. One can take it a bit further.

(f) ”

[29]A tribunal must explain why the amount of costs awarded is appropriate and show that it has scrutinised the sums claimed to assess whether they are reasonable and proportionate. This need only involve a very light touch analysis and a simple form of words as it is expressly a summary process. No particular words are needed as long as the tribunal shows that it has considered summary assessment or has considered the reasonableness of the costs claimed. It is good practice (but not a requirement) for a party making a costs application and seeking a summary assessment of costs to serve a schedule of its costs on the tribunal and the other party in advance of the hearing of the application. If there is no schedule of costs, the tribunal could refuse a summary assessment and direct a detailed assessment or it could proceed but take a critical and robust approach to the reasonableness of the costs in the absence of a breakdown.

Submissions

[30]Dr Kerr on behalf of the Claimant contends that the ET decided to make a costs’ order before considering the Claimant’s financial circumstances, as indicated by saying that she heard evidence regarding ability to pay only after deciding to make such an order. She retracted from her written submission the ET was required to consider ability to pay when deciding whether to make an order at all, accepting that it was permitted to do so. She says the ET took into account irrelevant considerations – what is said to be a pejorative and repeated comment that the Claimant was not working by reason of choice. She says the ET placed undue weight on the income of the Claimant’s husband and adult daughter, describing them as “earners” while not accepting the Claimant’s evidence that household costs had increased.[31]The Claimant contends that the Judge did not undertake the Abaya analysis of how the resources of the husband and daughter affected the Claimant’s own ability to pay, but improperly assumed that the entire income of the others would be available to her.[32]In relation to assessment of the amount of costs, Dr Kerr contends that where a specified sum is awarded, the ET must carry out a summary assessment, but the ET did not examine the Respondent’s schedule of costs to determine whether the sums claimed were reasonable and so in effect awarded indemnity costs.[33]Mr Rhodes for the Respondent submits that the ET correctly considered whether the threshold for costs was met, whether a costs order should be made, and, if so, the appropriate amount. He says it considered the Claimant’s financial circumstances and found that she was not working by choice and that her husband was meeting all of the household’s living expenses. The Respondent contends that the ET permissibly took into account the husband’s earnings as it affected the Claimant’s ability to pay, but took into account the adult daughter’s earnings only to note that she was not another dependent child of the family.[34]Mr Rhodes points out that appellate courts should be slow to interfere with the broad discretion enjoyed by tribunals in costs matters. He said the ET was entitled to have regard to the Claimant’s training as meaning her financial circumstances would improve when in future work.[35]The Respondent contends that the ET was entitled to order full costs from 1 December 2022 when it was unreasonable for the Claimant to continue pursuing the claim. The award was compensatory. However Mr Rhodes struggled to identify anything showing a summary assessment.

Discussion and Analysis

[36]The ET correctly directed itself to the useful three stage approach to a costs award and applied that approach. There is no appeal against its clear conclusion that the Claimant’s conduct was unreasonable and that her claim had no reasonable prospects of success. The ET took into account all the circumstances in assessing whether a costs order should be made, including her awareness of her hopeless case at an early stage, her access to legal advice and the warnings. There is no requirement to take the Claimant’s means into account at the discretion stage and the ET clearly explained that it was taking them into account at the third stage. I do not accept Dr Kerr’s submission that the ET was not entitled to take into account the Claimant’s choice to retrain rather than work as that potentially indicated shared earnings and her potential future earnings ability. The ET’s discretion involves no error of law and it is not contrary to principle or plainly wrong. The decision on discretion is properly explained in a broad-brush way. The first ground (Ground 6 in the Re-Amended Notice of Appeal) is dismissed. The ET was entitled to exercise its discretion to make a costs’ order against the Claimant in these circumstances.[37]The second ground involves the ET’s deployment of the earnings of third parties in its assessment of the amount of the costs’ order – the quantum decision. The ET first found that the Claimant was not working “by reason of choice” and says that she “has two earners in her home, her husband who works for the NHS fixing ambulances and a daughter as a teaching assistant”. The daughter, as one of the Claimant’s ‘earners’, is not mentioned again. The ET’s reference to the daughter as an ‘earner’ is curious, but I do not think the ET is saying that the adult daughter is earning for the Claimant or that her earnings affect the Claimant’s resources and ability to pay. The ET presumably mentions the earning daughter in contrast to the other two children who are still dependent, but the ET does not then say that the earning daughter contributes to household bills.[38]The ET does place significant weight on the earnings of the Claimant’s husband who meets “all their livings costs allowing the Claimant not to work”. The ET records that the Claimant has no income and no assets. She could seek employment in future, which the ET was entitled to take into account. The fact that the husband, who was recorded as earning £1,800 per month, pays the rent and all the bills does not in itself indicate anything about the Claimant’s ability to pay costs.[39]The ET says that “Bills and food…was £350.00 approximately and then upwards of £150 for electricity. I considered the Claimant’s affordability on that basis.” The ET does not expressly mention the £600 rent, but I think that it can be assumed that rent was not forgotten as it is mentioned in paragraph 50. The ET has implicitly taken the husband’s earnings of £1,800, deducted the £600 rent and £500-600 bills, and by inference found that the household has about £600-£700 per month of the husband’s income for all other family expenditure (including the dependent children). It can be inferred that the ET has assessed affordability on that basis.[40]However, using the approach and paraphrasing the words of QR v The GI Group, just because the Claimant was financially dependent on her husband does not mean that she had access to all his disposable income. Even if the ET considered that he had disposable income of £600-700 a month after fixed household costs, that does not mean that it necessarily formed part of her ability to pay a costs award. That would depend on the financial arrangements within the family. That should be a matter of evidence rather than a matter for assumption. Even if assumption was permissible, the Claimant’s ability to pay could only be a part of that disposable income shared between her and her husband, and making some allowance for the portion needed to support the dependent children. Her ability to pay about £14,000 of costs would need to be considered, taking into account a monthly ability to pay only in the low hundreds of pounds. That would suggest it would take many years to pay a costs award of this magnitude.[41]In my judgment, as in QR, the ET has not examined the question through the proper statutory lens – especially in the context of a costs award of around £14,000. The ET in this case implicitly took into account the joint income of the Claimant and her husband but did not focus on the Claimant's ability to pay - albeit as impacted by whatever share of her husband's income was hers to spend. It would be very surprising indeed to conclude that the Claimant’s share of that modest overall income could reasonably enable her to pay about £14,000 in costs within a limited period, even taking a rosy and optimistic assessment of her financial future. The ET has failed to consider the Claimant’s ability to pay in the correct basis and this ground of appeal (Ground 7) is allowed.[42]The remaining ground is whether the ET has carried out a summary assessment of the Respondent’s costs. The ET, after deciding to exercise its discretion to make a costs award, says “I consider that the Claimant knew from 1 December 2022 not to pursue the case, and I award costs from that date. I award costs of £14,123.39.”[43]I have been provided with an electronic copy of the Respondent’s schedule of loss. Its solicitors’ costs after 1 December 2022, but before the costs’ warning, and excluding VAT, amount to £3829.50. The remainder of its solicitors’ costs are said in the judgment to amount to £4333.50. Adding these to the Respondent’s counsels’ fees (this time including VAT) gives a total of £14,123.59. It is clear that the ET awarded the Respondent’s costs in full and with no deductions made by any summary assessment process.[44]In my judgment the approach in Kovacs v Queen Mary and Westfield College [2002] IRLR 414 is still good law and the ET should have made a summary assessment when it ordered costs within the £20,000 cap. The ET had the benefit of a schedule of costs served by the Respondent. For the ET to make a permissible order for costs that did not breach the indemnity principle and which properly compensated the Respondent, it had to summarily assess those costs to ensure that they were reasonable and proportionate. There is no indication that the ET has adopted that approach.[45]The ET does not appear to have scrutinised the sums claimed in the schedule. It has not given even a broad-brush indication of whether they were reasonable or proportionate. A summary assessment is just that – it is not a detailed assessment and so the judgment does not need to explain in any detail how each of the amounts claimed is assessed. But an ET must show in some fashion that it has carried out a summary assessment and indicate in brief terms that it has applied the principles of reasonableness and proportionality to the sums claimed. It was an error of law for the ET to fail to summarily assess the costs and to award £14,123.39 in full without first determining whether this was reasonable and proportionate. For those reasons the final ground (Ground 9 as amended) is allowed.[46]The Claimant suggests that the ET’s errors in considering means and assessing costs are so fundamental that a fresh tribunal is required, whereas the Respondent notes that the existing ET has the benefit of having heard evidence about means from the Claimant in 2024. The means assessment is so flawed that I think a fresh tribunal is the preferable option. A fresh tribunal can assess the Claimant’s ability to pay and take that into account in deciding what costs are payable and then conduct a summary assessment of those costs to decide whether they are reasonably incurred, reasonable in amount and proportionate to the issues in this claim. I therefore remit those questions to a fresh tribunal.