18 November 2011 #Employment
The Court of Appeal in Dean & Dean v Dionissou-Moussaoui has ruled that a tribunal should not necessarily award costs where "scandalous and vexatious" claims are withdrawn or struck out at a PHR on jurisdictional grounds if the claims are contested and the evidence has not been tested.
The claimant made serious allegations of sex discrimination against a partner and the claims were struck out at PHR on jurisdictional grounds, for non-compliance with the statutory grievance procedure and statutory time limits. At the ET Dean & Dean had sought an order for costs against the claimant after the claims had, for the most part, been struck out or withdrawn. The basis of the application was the alleged unreasonable conduct of the proceedings by the claimant and that the claims were misconceived. The claimant had been warned early on that costs would be claimed against her. Dean & Dean estimated its costs at £95,783,61 and those of the 3 salaried partners at £4,065.
The ET refused the application and the EAT dismissed appeals by the Respondent. Dean & Dean were given permission to appeal to the Court of Appeal against the refusal of the costs application. Permission was granted on the basis that it was arguable that the ET had not applied the appropriate test and that refusal to order at least some costs was perverse, although warning given that it was unlikely that any costs ordered would not be near the costs claimed.
The issue before the Court of Appeal was whether the ET had erred in the exercise of its discretion when it refused to make a costs order. Counsel for the appellants accepted that normally costs are not awarded in the ET and that appeals in relation to a decision not to award costs are very rare, costs being a discretionary matter. However it was submitted that this was not an ordinary case because very substantial costs had been incurred in dealing with the scandalous and salacious allegations of sexual misconduct.
The Court of Appeal dimissed the appeal finding no error of legal principle by the tribunal and that the tribunal had done the best it could with what it did know. The Court of Appeal would not interfere with the tribunal`s discretion even if they might have reached a different decision.