Thread by @JasonBraier

1/ Ibeziako v York Teaching Hospitals NHS: an EAT judgment on postponement of costs hearings, means to pay costs awards & the clearing of an ET direction that so very often confuses inexperienced parties.

bailii.org/uk/cases/UKEAT…

#ukemplaw

2/ I brought an ET claim the subject of which doesn't matter, but which the ET found partially based on falsehoods. On the R's application a costs hearing was listed. I applied to postpone the hearing but this was refused.

3/ A couple of days before the costs hearing, R sent a skeleton, which I started to work on the following day. I attended the costs hearing & applied to postpone it because he'd had no sleep due to putting his skeleton together & because his anxiety levels were high.

4/ The ET refused the application, finding I was able to participate effectively. The ET noted he was cogent in making the adjournment application & lacked medical evidence of inability to participate.

5/ The ET made a £2,000 cost order (10% of the requested amount) in spite of I having over £11,000 of debts he was unable at the time to pay. The ET made the order in light of its views that there was a prospect of him being able to pay the order in the future.

6/ At a 3(10) hearing, HHJ Auerbach gave permission to appeal on (i) whether the ET should have allowed a short adjournment to provide further medical evidence, & (ii) sufficiency of reasoning on future possibility of payment of costs in spite of current impecuniosity.

7/ On (i), HHJ Tayler (at the full appeal hearing) noted the guidance to ETs in Mukoro & Teinaz where medical emergency renders a party unable to attend at the last minute, & also Iqbal's guidance where a stressed party submits they aren't able to continue with the hearing.

8/ The EAT found the case to be an Iqbal situation. The ET has a wide discretion & took account of I's submissions, weighing them against the cogency of his postponement application which demonstrated his ability to participate effectively in the costs hearing. The ET was upheld.

9/ On (ii), the EAT noted in particular Vaughan v Lewisham where the EAT authorised cost awards based on a realistic prospect the party might at some future point be able to pay a substantial amount of the costs ordered rather than limiting itself to means at the hearing date.

10/ The EAT found the position considered by the ET with sufficient care, accepting that I wasn't in a position at the date of the hearing to pay £2,000 costs but concluding there was a realistic prospect of him doing so in the future.

11/ The EAT noted the lack of any medical evidence to show I wouldn't be able to work for a lengthy period, & thus held the ET entitled to conclude I's position might well improve in the short term. The ET's reasoning was Meek compliant.

12/ Finally, experienced practitioners will be familiar with ET directions requiring any written submissions be sent not less than 7 days before the hearing.

The EAT clarified this isn't addressed to skeletons but to those not wishing to attend but to put submissions in writing