Jonathan Derrington considers the recent case of Casquerio v Barclays Bank UKEAT/0085/12/MAA and whether employment tribunals have a power to refer wasted costs orders to county courts.

There is apparently no power for an employment tribunal to refer a wasted costs order, made under rule 48, to a county court – unlike an ordinary costs order under rule 41(1)(c), which may be referred to a county court for assessment. Slade J, sitting alone, considered that this apparent asymmetry suggested a drafting oversight. She also stated obiter that a paying party’s means to pay a wasted costs order might be taken into account under the third question in Ridehalgh v Horsefield [1994] Ch 205, there being no provision to consider it under rule 48 (again, in contrast to rule 41, which allowed for such a consideration for an ordinary costs order).

Background facts

The Appellant, who was without formal legal qualifications, assisted the Claimant with her claim. A pre-hearing review was held to decide whether or not the Claimant’s claims for unfair dismissal and disability discrimination were brought in time. During the hearing, the Appellant maintained that he was not acting for the Claimant out of profit.

ET decision

The Employment Judge held that the claims were not brought in time. However, having dismissed the claims, the Employment Judge went on to make a wasted costs order against the Appellant but not against the Claimant. This she did on the basis that the Appellant’s conduct had clearly been vexatious, abusive, improper and unreasonable (inter partes, the Appellant had made inappropriate personal remarks, had sent many hundreds of pages of emails, had demanded payment for substantial sums in costs and had also made four reports to the Solicitors Regulation Authority). Also, the Employment Judge was not satisfied that the Appellant had not been acting in pursuit of profit. Accepting that costs might very well be a substantial amount (the schedule of costs was over £12,000), she referred the assessment of same to the County Court.

EAT ruling

Slade J considered the provisions of rule 48, which allowed for a wasted-costs order to be made against a party’s representative, who was acting in the pursuit of profit. She noted that the rule required that, when making a wasted-costs order, the tribunal/Employment Judge must specify in the order the amount to be disallowed or paid. This provision she contrasted with rule 41, which, at 41(c), contained an express provision allowing the tribunal to refer an ordinary costs order for determination by way of detailed assessment in the County Court. In the light of the absence of an express provision in rule 48, Slade J, with some concern, concluded that there was no power to refer wasted costs to the County Court for assessment. She considered that the absence of such a power might have been an oversight in the drafting of the Rules.

Slade J went on to find that the Employment Judge had also failed properly to consider which specific costs were incurred by the Appellant’s unreasonable conduct as identified by the Employment Judge (the second question in Ridehalgh) and whether or not it was just in all the circumstances to make an award in a specific amount (the third question in Ridehalgh). The matter was remitted to the tribunal (to be before a different Employment Judge) for those matters to be considered. Whilst it was not a matter on which she had heard argument, Slade J allowed for the remitted hearing to address the question of the Appellant’s ability to pay, which, whilst it was not provided for in rule 48 (it was in rule 41), might nevertheless be considered under the third Ridehalgh question.