Since July 2013 a party wishing to pursue  an appeal at the EAT  has had to pay fees of £400 in order to lodge the appeal and a further £1,200 at the time the appeal is listed.

Contemporaneous with the requirement to pay fees came an amendment to the EAT Rules 1993 at r. 34A(2A) which provided the EAT with a specific power  to award an amount "no greater than" the fees paid  when a party's appeal was allowed  "in whole or part".

In the subsequent 12 months there has been very little authority concerning how this discretion should be exercised but HHJ Eady QC has now given some guidance in Horizon Security Services Ltd v. PCS Group UKEAT/0071/14/JOJ:

Firstly,  the decision confirms that as the power in r.34A(2A) stands separate from the general discretion to award costs there is no requirement that an unsuccessful party must have crossed any of the r.34A(1) thresholds before an award in relation to fees can be made.

Second, the judge agreed with the view expressed by HHJ Hand QC in Portnykh v. Nomura International UKEAT/0448/13/LA that the 'general expectation' must be that where a party had succeeded, a respondent who had actively sought to resist the appeal should pay the fees incurred by that party.

Lastly, the judge did qualify this general principle by suggesting two circumstances where it might needed to be 'tempered'. Firstly where a party had only been partly successful and secondly where a respondent's means were such that it could not pay a sum equal to the fees in question.

Comment

This helpful guidance generally reflects the view endorsed  by LJ Moses in the UNISON judicial review litigation (R (on the application of Unison) v Lord Chancellor [2014] IRLR 266) concerning reimbursement of fees at first instance  in the Employment Tribunal, namely that it is appropriate for there to be a general presumption that if a litigant is successful then the other party should be ordered to reimburse fees incurred in pursuing the litigation.

As far as means to pay is concerned, this issue is only likely to arise in respect of an employee who unsuccessfully resists an appeal, but it would presumably need some evidence from the employee-respondent as to his or her means to be available to the EAT and advisors would be sensible to have that material ready to meet any application for reimbursement of fees.

Also, given the principle is said to apply where a paying party had "actively sought to resist" an appeal, query what the position would be when a respondent agrees to compromise an appeal by consent, but in order to get to that point an appellant has necessarily  had to have paid £400 in fees. Although there would no longer be any 'active resistance', it is suggested that the respondent could still be expected to re-imburse the fee incurred. From a practical point of view it may be more important than previously to ensure there is sensible pre-issue correspondence by a putative appellant that puts the respondent on notice of the intention to appeal and thus to incur the fee, so that that can then be drawn to the EAT's attention should a dispute as to reimbursement of the issue fee arise later.

Lastly, given the wording of r.34A(2A) the judge is quite right to highlight that a partly successful appeal may give rise to the need to depart from the general principle that all the fees should be reimbursed. However,  it is difficult to anticipate how this approach should be applied in practice. An arbitrary arithmetical approach such as : "four grounds of appeal were raised, two were successful and so you can have 50% of your fees back",  seems a little crude and unfair especially as all the fees had to be incurred as a pre-requisite of having pursued any ground of appeal.  It may be that absent an almost entirely unmeritorious appeal (which one might expect would have been weeded out long before a final hearing in any event), the EAT will in practice only make a modest reduction in fees ordered to be reimbursed where there has been partial success.