If an employer appeals an employment tribunal decision in a court the claimant is not (normally) at risk

St Albans Girls' School & Anor v Neary [2009] EWCA Civ 1214

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15/12/2009

This is an important Court of Appeal decision, one that will save much anguish on the part of the very many workers faced with malicious costs actions by former employers:

    • Contrary to normal practise costs will not normally be awarded against a claimant forced into a 'costs-bearing jurisdiction' (i.e. a court) by an employer's appeal
    • The employer's incentive to keep appealing until the claimant is forced to decide either to drop his case or be possibly faced with enormous court costs if he loses his case is thus removed .
    • Where bad conduct on the part of a claimant leads to the consideration of a costs award, only the conduct that affects costs should be taken into account. Employers will not be able to claim all their costs from a claimant.
    • A client's financial situation should be taken into account when making a decision for costs (The 2004 Regulations state that these 'may' be considered, although in practice the claiman'ts financial situation usually is taken into account). The Court of Appeal said there should not be an award where a "disproportionate amount of time and money would have to be expended in order to enforce it". Costs actions by employers wishing to drive workers into bankruptcy are therefore discouraged.
    • Where larger than necessary legal forces have been used (two barristers in this case) or excessive fees charged, the court should take this into account and not award the amounts asked for by the employer.
    This judgment follows on from a costs action by St Albans Girls' School made after winning its appeal in the Court of Appeal as previously reported here:
    Review of sanctions application: the judge does not have to expressly consider each factor set out in CPR 3.9    St Albans Girls School & Anor v Neary [2009] EWCA Civ 1190
     


    The transcript of this case follows:-   St Albans Girls' School & Anor v Neary [2009]  (usually found at the Bailli or Employment Appeals websites)

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