Anderson v Cheltenham & Gloucester Plc (Practice and Procedure : Costs) [2013] UKEAT 0221_13_0512

EAT

Anderson v Cheltenham & Gloucester Plc (Practice and Procedure : Costs)

[2013] UKEAT 0221_13_0512 · 2013-12-05

[25]“ Moreover we confess to some unease about the consequence of the use of what was, in effect, a Calderbank offer in the Employment Tribunal context. We do not doubt that where a party has obstinately pressed for some unreasonably high award despite its excess being pointed out and despite a warning that costs might be asked against that party if it were persisted in, the Tribunal could in appropriate circumstances take the view that that party had conducted the proceedings unreasonably. But this was far from being an extreme case of that nature. The President then goes on to deal with the circumstances of the Monaghan case itself. That is a passage relied on by Mr Gidney for the Respondent to this appeal. Ms Andrews relies on this later passage in the same paragraph of the President’s Judgment. “Whilst we would not want to deter the making and the acceptance of sensible offers, if it became a practice such that an Applicant who recovered no more than two-thirds of the sum offered in a rejected Calderbank offer was, without more, bound to be visited with the costs of the remedies hearing or some part of it, Calderbank offers would be so frequently used that one would soon be in a regime in which costs would not uncommonly treated as they are in the High Court and other courts. Yet it is plain that throughout the life of the Employment Tribunals the legislature has never so provided. It can only be that that was deliberate.” 8. That approach was considered and endorsed by Mitting J in Kopel v Safeway Stores plc

[2003] IRLR 753

(see paragraphs 17-21) and the principles emerging from the earlier cases are helpfully distilled by Slade J in Raggett v John Lewis plc UKEAT 0082/12 sent in August 2012 at paragraph 43. In short, the conduct of a claimant in rejecting a Calderbank -type offer of settlement can be taken into account in determining whether the threshold in rule 40(3) of the then 2004 ET Rules is triggered. However, failure to beat the offer will not of itself justify an order for costs in the ET. The Claimant’s case 9. Having considered those principles, we agree with Ms Andrews, appearing on behalf of the Claimant before us, the Claimant having represented herself below, that looking at the Tribunal’s Reasons as a whole, they do not extend beyond finding that the Claimant acted unreasonably in refusing the offer of £25,000 against the background of a claim calculated at £1.2 million. Mr Gidney relies on the size of the claim advanced by the Claimant. However, at paragraph 16 of their Reasons, the Tribunal simply refer to the problem of the Claimant’s expectation of a career loss finding as explaining her apparently large claim. 10. Factors not apparently considered by the Tribunal on the face of their Reasons were that, although the discrimination claims failed, there was no suggestion by the Respondent nor finding by the Tribunal that they were misconceived. Secondly, that her subsequent job search would be assisted by a finding of unfair dismissal (see Reasons, paragraph 5), she being entitled, as a matter of law, to pursue a declaration of unfair dismissal in the absence of any admission by the Respondent; see Telephone Information Service v Wilkinson

[1991] IRLR 148

, approved by the Court of Appeal in Gibb v Maidstone and Tunbridge Wells NHS Trust

[2010] IRLR 786

. And finally, the difficulty in predicting the likely level of contribution as ultimately found by the ET. Conclusion 11. On this basis we are satisfied that the Tribunal’s reasoning cannot stand in relation to costs. On taking those factors into account, having been asked by both parties to exercise our powers under section 35 of the Employment Tribunals Act 1996 and resolve the matter without remitting it back to the Tribunal, we reject Mr Gidney’s submissions that costs were properly ordered on these facts. In our collective judgment, no costs order should have been made. We shall therefore set aside the costs order. The Claimant is entitled to compensation in the sum of £18,073.75. 12. A point arose in the appeal as to whether the form of order made by the Tribunal in their remedy Judgment was permissible under the then ET Rules. The costs order was set off and compensation ordered, leaving a balance of £8,073.75 to be paid by the Respondent. Although that point is strictly rendered moot by our decision in the appeal, we are not persuaded by Mr Gidney that the power to set off costs against damages in the civil jurisdiction (see Lockley v National Blood Transfusion Service

[1992] 1 WLR 492

(CA), considered in the Chancery Division case of Fearns v Anglo-Dutch Paint and Chemical Co Ltd

[2011] 1 WLR 366

, paragraphs 74-77 per Mr George Leggatt QC, sitting as a deputy High Court judge) can be transposed into the ET jurisdiction. However, we think the point is purely technical. Had the Judgment specified separately the compensation order in favour of the Claimant and the costs order in favour of the Respondent, it would, practically speaking, have then been open to the Respondent to simply pay the difference. Any attempt in those circumstances, subject to appeal, by the Claimant to enforce the full compensatory award in the county court, would have been bound to fail, with adverse costs consequences for her.