Two cases this month look at the question of costs orders. Rogers v Dorothy Barley School was an unsuccessful breach of contract claim brought by a school caretaker. Representing himself, he alleged that the school were in breach of contract when he received a water bill, in error, in respect of the house he occupied at the school. Although he did not have to pay the bill, he felt that it was a breach of contract that he had received it at all. He was unsuccessful on the grounds that the tribunal had no jurisdiction to hear the claim, because it can only deal with breach of contact claims where the contract has ended.
He appealed the tribunal decision, again without success, and the school made an application that he should pay its costs. That application failed, mainly because he had been given no warning that such an application would be made, or of the sum involved. In refusing the application, the Employment Appeal Tribunal also took account of the fact that the employer had “singularly failed to achieve a satisfactory solution with Mr Rogers that gives him the confidence that he will not face a future liability to pay for water“, and so to an extent had brought the process on itself.
The second case, Doyle v North West London Hospitals NHS Trust, makes the procedural point that when making an order for costs, an employment tribunal is not only entitled to have regard to the unsuccessful party’s ability to pay them without the matter being raised by either party, but sometimes of its own volition positively must. After a seven day hearing of breach of contract and multiple discrimination claims, an employment tribunal ordered that Ms Doyle had to pay the whole of her employer’s costs, which were very substantial. She appealed on the basis that it was wrong of the tribunal to order that she pay the whole of the costs, and that they had not taken her ability to pay into account.
Her appeal on the first point failed, because the tribunal had correctly considered what level of costs should be paid in circumstances where it considered that the claim had not been made in good faith. The Employment Appeal Tribunal held that, while there is no absolute obligation on a tribunal to take into account a party’s ability to pay before making a costs order in all cases, if it does decide to do so, it should make enquiries into the party’s means, and explain its reasoning. Further, there are circumstances, for example where a party is unrepresented, where a tribunal should itself raise the question of ability to pay. In this particular case, although the claimant was represented, there were other factors which meant that the tribunal should have raised the issue including the high level of costs, the fact that there was nothing to suggest the claimant would be able to pay them, and the possibility that the claimant’s representative may have overlooked the matter.