DR C D’SILVA v (1) NATFHE (NOW KNOWN AS UCU) (2) MR M SCOTT (3) MR A PIKE (4) MR R KLINE (5) MR P MACKNEY (6) MR P JONES [2009] UKEAT 0126_09_2907
[1]APPEARANCES For the Appellant DR C D'SILVA (The Appellant in Person) SUMMARY PRACTICE AND PROCEDURE: Costs The fact that an employment tribunal made an award of costs on the basis that the claim had been misconceived from the start did not support an allegation of bias against the tribunal.[2]An employment tribunal was entitled to make an award of costs notwithstanding that the chairman who had presided at the liability hearing had retired on the grounds of ill health and a new employment judge had been appointed to sit with the original lay members to hear the costs application.[3]In making an award of costs an employment tribunal was not obliged to enquire into the paying party's means of its own motion where substantial submissions had been made as to costs but no argument about means had been raised. THE HONOURABLE MR JUSTICE BEAN "That is undoubtedly correct, if it means that the indemnity principle must apply to the award of costs. It is not, however, punitive and impermissible for a tribunal to order costs without confining them to the costs attributable to the unreasonable conduct. As I have explained, the unreasonable conduct is a precondition of the existence of the power to order costs and it is also a relevant factor to be taken in to account in deciding whether to make an order for costs and the form of the order." To similar effect is the decision of the Employment Appeal Tribunal, Burton J presiding, in Salinas v Bear Stearns [2005] ICR 1179."44. Rule 41(2) gives to the Tribunal a discretion whether to take into account the paying party's ability to pay. If a Tribunal decides not to do so, it should say why. If it decides to take into account ability to pay, it should set out 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. Lengthy reasons are not required. A succinct statement of how the Tribunal has dealt with the matter and why it has done so is generally essential.45. In this case the Tribunal has not provided any such explanation. It has made an order for detailed assessment, knowing that even if the costs are substantially reduced at the detailed assessment they are still likely to be beyond the ability of Ms Jilley to pay them. We do not say the Tribunal is not entitled to take such a course; but reasoning is required if it is to be taken." "The Respondent's representative stated during his opening remarks that the Tribunal may have regard to the paying party's capacity to pay in considering whether or not to make an order and of how much. However, the Claimant did not address the Tribunal on this issue." "The fact that no strike out application was made by the Respondents is not definitive. Strike out applications, if made, are very rarely granted in discrimination cases and the Tribunal's view is that the lack of strike out application in this case was indicative of the Respondent's representatives' restraint." (Dr D'Silva applied for permission to appeal)