Thread by @JasonBraier

1/ Opalkova v Acquire Care Ltd is a (short) must-read judgment on the application of the ET's powers to make a PTO (or costs order) under r.76(1)(b) (i.e. where the claim or response had no reasonable prospect of success).

assets.publishing.service.gov.uk/media/612f6c59…

#ukemplaw

2/ The facts of the case aren't important. What's important though is that O's ET1 contained 6 bases of claim, under 3 of which she succeeded. O applied for a PTO. The ET denied the application, in part because AC succeeded in responding to 3 of the 6 bases of claim.

3/ The relevant part of ET Rules r.76 is set out below. In considering whether the response had no reasonable prospect of success, the EJ considered the response as a whole & the circumstances in the round. HHJ Tayler held this to be in error.

4/ HHJ Tayler construed 'claim' in r.76(1)(b) in light of r.1, holding that as 'claim' refers to 'complaint' & as 'complaint' = anything referred to in an enactment conferring ET jurisdiction, each statutory cause of action is a complaint, so an ET1 can have a number of claims.

5/ Concomitantly, 'response' must refer to each of the claims brought, i.e. each statutory complaint raised in the ET1. Thus in this case there were 6 claims and hence 6 responses to consider under ET rules r.76(1)(b).

6/ Whilst HHJ Tayler acknowledged parts of the rules weren't consistent with his construction (such as strike out under r.37 being available against part of the response), he was comfortable that those contraindications didn't undermine his construction.

7/ The consequence of HHJ Tayler's construction is that consideration under r.76(1)(b) had to be given separately in respect of each of the 6 statutory claims brought.

8/ The EAT set out 3 key questions: (i) objectively did the response have no reasonable prospect when submitted or at a later stage; (ii) at that stage did R know that was the case; (iii) If not, should R have known that?

9/ Whilst only the 1st of those questions was relevant to the threshold for making an order under r.76(1)(b), the other 2 questions were relevant to how the discretion is exercised. However, all 3 questions are relevant to the r76(1)(a) threshold before applying discretion.

10/ Unsurprisingly, a legally represented respondent is likely to be judged to a higher expectation than a non-represented respondent when determining whether the party should have known its response lacked reasonable prospects.

11/ In this case the ET erred by not considering each response independently, by relying on matters going to lack of knowledge of prospects as part of the 76(1)(b) threshold rather than discretion & by failing to consider 76(1)(a) at all even though raised by O.