Employment Appeal Tribunal Rejects Costs Application Despite Appeal's Failure
An appeal that ultimately failed has not resulted in a costs award, as the Employment Appeal Tribunal found the threshold for such an order was not met.
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The Employment Appeal Tribunal (EAT) has dismissed an application for costs following the unsuccessful appeal of a ruling on wasted costs. The case involved multiple appellants, including Merali’s Limited and Fordover Services Limited, appealing a decision made by an Employment Judge. The initial tribunal judgment concerned an application for wasted costs, which was refused.
No Wasted Costs Award Despite Appeal Failure
His Honour Judge James Tayler, presiding over the EAT, clarified that costs do not automatically follow the event in employment tribunals or the EAT. A two-step process is required: firstly, to establish that the conduct meets a threshold, such as proceedings being unnecessary, improper, vexatious, or misconceived, or that there has been unreasonable delay or conduct. Secondly, the tribunal must exercise its discretion on whether to award costs.
The appellants sought costs after their appeal against the initial judgment was dismissed. The EAT considered whether an appeal passing an initial sift or progressing to a full hearing protected an appellant from costs. Citing previous case law, including Iron and Steel Trades Confederation v ASW Ltd (in liq), the tribunal confirmed that such a progression is a factor to be considered but does not grant immunity from costs orders.
Threshold for Costs Not Met
In this instance, the EAT determined that the threshold for making a costs award had not been surpassed. While the appeal failed comprehensively, the tribunal found that the grounds for appeal, particularly concerning alleged misconduct by legal representatives, were not so poor as to be unarguable. One of the grounds, relating to an unparticularised age discrimination complaint, was noted as coming close to being akin to an abuse of process, but not quite meeting the necessary legal threshold.
The judgment also touched upon the complexities of wasted costs applications, referencing key authorities such as Ridehalgh v Horsefield. The EAT stressed that for a legal representative to be liable for wasted costs, there generally needs to be conduct akin to an abuse of process, going beyond mere negligence.
Ultimately, the tribunal concluded that the appeals were not entirely misconceived and, even if they had narrowly met that threshold, the fact that the case had progressed through an initial sift would have influenced the discretionary decision not to award costs.
Read the entire judgement here: Fordover Services Limited v Ms M Randall and Others [2026] EAT 4
