FDA and Others v Bhardwaj
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] EAT 97 |
| Court | Employment Appeal Tribunal |
2022 March 15; July 13
Industrial relations - Employment tribunals - Costs - Claimant’s complaints dismissed and respondents applying for costs under employment tribunal rules - Tribunal refusing application in relation to all but one head of costs - Respondents appealing and claimant cross-appealing - Parties citing number of authorities as to meaning of statutory wording - Proper practice as to citation of authorities on costs appeals - Whether appeal and cross-appeal to be allowed -
The claimant’s complaints of unlawful discrimination, victimisation and unjustifiable discipline against the respondent trade union and five of its officers were dismissed by an employment tribunal. Following the rejection of the claimant’s subsequent appeals, the respondents applied for costs, pursuant to rule 76(1)(a) or (b) of the Employment Tribunals Rules of Procedure 2013F1. An employment judge refused the application in relation to all but one of the heads of costs sought. The respondents appealed and the claimant cross-appealed, and both parties cited a number of authorities as to the meaning of the statutory wording.
On the appeal and the cross-appeal—
Held, dismissing the appeal and the cross-appeal, that costs awards did not operate by precedent but were fact specific and to be determined as summarily as possible; that the expectation had to be that nothing more than the words of the relevant rule required addressing before the employment tribunal exercised its discretion on the facts of the particular case, and the citation of authorities had to be strictly constrained to those genuinely establishing a point of principle not readily apparent from the words of the rules themselves; that, if an appellate court or tribunal had approved or overturned an approach adopted by an employment tribunal when determining costs in a particular case, it did not follow that other employment tribunals should adopt the same approach; that rule 76(1) of the Employment Tribunals Rules of Procedure 2013 gave the tribunal a discretion as to costs, which was to be construed very broadly, and it would require a clear error of principle to justify an appeal for or against an order for costs; that, further, in a case involving multiple issues it would often be unrealistic to hive off some issues from others when assessing whether costs were to be awarded, and if so in what amount, and most cases stood or fell as a whole, with issue-based costs orders on the whole to be avoided; and that, applying those principles, the employment judge had been entitled to reach the decisions on costs that she did as a matter of her discretion under rule 76(1) (post, paras 47–48, 51–54, 70–71, 73–74, 79, 89, 91–93, 115, 119–120, 122–123, 128–130, 135–139, 143, 145).
The following cases are referred to in the judgment:
Bhardwaj v FDA
Bhardwaj v FDA
Daleside Nursing Home Ltd v Mathew UKEAT/519/08 (unreported) 18 February 2009,
Gibb v Maidstone & Tunbridge Wells NHS Trust
Hutchison v Westward Television Ltd [
Kickers International SA v Paul Kettle Agencies Ltd [
SCT Finance Ltd v Bolton
Telephone Information Services Ltd v Wilkinson [
Vaughan v Lewisham London Borough Council [
APPEAL from an employment judge sitting at Nottingham
By a decision sent to the parties on 21 July 2020, an employment judge refused applications for costs by the respondents, the FDA, Ann Crighton, Stuart Sampson, Paula O’Toole, Paul Whiteman, and Sue Gethin, arising from claims of unlawful discrimination, victimisation and unjustifiable discipline by the claimant, Uma Bhardwaj, which had earlier been rejected by a different employment judge. The respondents appealed on the grounds, inter alia, (1) that the claimant’s pursuit of certain allegations, which were found to have been made falsely and in bad faith, could not be excused by her legal advice; (2) that the employment judge was wrong in finding that certain allegations were not instances of unreasonable conduct or had no reasonable prospect of success; (3) that decisions on other matters were wrong or perverse; (4) that the employment judge should have awarded costs on the basis of lack of proportionality between the value of the claims and the amount of costs incurred; and (5) that the judge was wrong not to find that the threshold for unreasonable conduct in rule 76(1)(a) of the Employment Tribunals Rules of Procedure 2013 had been passed in respect of the application for the costs for dealing with a recusal application made by the claimant. All but one of the respondents’ grounds of appeal was allowed to proceed under rule 3(7) of the Employment Appeal Tribunal Rules 1993 (SI 1993/2854) by Ellenbogen J. The respondents renewed their application on the single rejected ground under rule 3(10). The claimant cross-appealed the order for costs made against her. Choudhury J (President) refused to allow the cross-appeal to proceed under rule 3(7). The claimant renewed her application under rule 3(10).
The facts are stated in the judgment, post, paras 5–42.
Mohinderpal Sethi QC (instructed by
Hugh Southey QC (instructed directly) for the claimant.
The court took time for consideration.
13 July 2022. GRIFFITHS J handed down the following judgment.
1 For over 13 years, the claimant Ms Bhardwaj has been litigating against her former trade union (“the FDA”) and five officers of the FDA. She issued two ET1s, the first on 8 December 2008 and the second on 12 June 2009. After 25 days of hearing, Employment Judge Tayler rejected all her claims on 17 September 2010 (“the Tayler Decision”). She appealed to the Employment Appeal Tribunal and lost. She appealed further to the Court of Appeal and lost. She petitioned for permission to appeal to the Supreme Court and was refused.
2 Until her appeals had been exhausted, an application by the respondents (the FDA and the five named individual officers) for costs against her, which had been made on 19 October 2010, was held in suspense. After her appeals were exhausted, that application for costs was revived on 1 March 2018 and was transferred (on the claimant’s application) to a different region. On 18 July 2020 it was decided by Employment Judge Heap after two reading days, four hearing days, and one day in chambers (“the Heap Decision”). The present appeal is brought against the Heap Decision on costs.
3 In this way, costs incurred in 2009–2010 are still being litigated in 2022.
4 The Heap Decision on costs is 51 pages long. The previous decision on the merits of the claims in the case (the Tayler Decision) is 89 pages long. Some people might have thought that, after such thorough decisions, and so many years, including multiple appeals, none of them so far successful, the case might be regarded as exhausted. Those people would be wrong. It is an unhappy observation from experience that, the greater the energy and resources that a case has consumed, the greater the energy and resources that tend to be devoted to it as it carries on. It is as if litigation is a chain reaction. As the stakes continue to increase, the parties double and re-double. In this appeal on costs, no point has been left alone, by either side.
5 The Heap Decision was as follows:
(i) Employment Judge Heap refused an application of the FDA and the five individual respondents (“the FDA respondents”) for costs arising from the proceedings before Employment Judge Tayler (“the Tayler Costs”).
(ii) Employment Judge Heap granted an application of the FDA respondents for costs thrown away in respect of hearings before the employment judge on 4 and 5 February 2020 and by an adjournment on 5 February 2020 (“the Privilege Costs”).
(iii) The judge refused an application of the FDA respondents for the costs of dealing with the claimant’s recusal application (“the Recusal Costs”).
(iv) The judge refused an application of the FDA respondents for costs arising from alleged breach of orders for disclosure (“the Disclosure Costs”).
6 Thus, the results were mixed. Three of the applications by the FDA respondents for costs were refused, and one was granted.
7 Both sides have appealed. The FDA respondents appeal the refusal of their application for the Tayler Costs and the refusal of their application for the Recusal Costs. The claimant appeals the award of the Privilege Costs against her.
8 The FDA respondents also appeal a point dealt with and rejected in the body of the Heap Decision (at paras 163–165) as “Item 46”. This was an application by the FDA respondents for the claimant to pay them their costs of the claimant’s application to Employment Judge Heap for an extension of time to advance an application of her own for costs (“the extension of time costs”). The judge had refused the claimant this extension of time after a hearing on 28 June 2019 (at which the FDA was represented by leading counsel and the claimant was in person) in a reserved decision dated 19 July 2019. It was ten pages long. It does not appear that the FDA respondents applied for those costs at the time. However, it seems that they added this as “Item 46” in a list of 46 items upon which the judge was asked to rule in support of their application or applications for costs against the claimant.
9 In addition to those 46 points (which are clearly and systematically addressed in paras 66–166 of the Heap Decision), the judge was asked by the FDA respondents to address a further four issues, which she did at paras 167–172 of the decision. This made a total of 50 points taken by the FDA respondents on costs.
10 The FDA respondents put forward ten grounds of appeal. Nine of these...
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