Award of Costs Against Unsuccessful Parties. Toss of a Coin?

It will come as no surprise to readers of this Blog that we are far from fans of the Government’s proposed set of reforms to Employment Tribunal law practice and procedure.

We have talked recently about the serious threat to access to justice posed by the promised introduction (in 2013) of a scheme of fees payable to commence and continue with Tribunal proceedings.

But there is already a disincentive to pursue unmeritorious claims. Tribunals are entitled in appropriate cases to make an award of costs against an unsuccessful party.

In practice those awards are few and far between. When they are made, the Tribunal has a couple of options: it can assess the costs that should be payable to the successful party by the losing party – up to £20,000.00 (a recent change in itself – the figure was £10,000 not long ago); or it can direct that the amount of costs should be assessed by a District Judge in the County Court. County Court Judges and District Judges are used to dealing with complicated assessment of legal costs – Employment Judges rarely are.

So it is with concern that we see that one of the proposed changes to Tribunals’ powers is to remove the current cap on assessed costs. An ET will be able to award any amount of legal costs, though there is no set procedure to govern the process. Toss a coin?

It is not enough that an employee might have to part with a thousand pounds to pursue a case all the way to a Tribunal hearing. If we add to that the threat of legal costs running potentially into tens of thousands of pounds, without even the checks and balances offered by the costs assessment system operated in the County Court, we risk deterring more and more people – and in particular, more and more ordinary working people of modest or average means – from pursuing their rights in the Employment Tribunals.

We’ve said it before but we’ll say it again: the rights granted to us by the great and the good are a waste of space, if we can’t afford to exercise them through due process of law.


Paul Scholey - Senior Partner

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