Thread by @JasonBraier

1/ FDA v Bhardwaj: EAT dismisses appeal against refusal of costs orders (& cross-appeal against making of 1), & derides issue-by-issue costs claims & discourages pernickety costs appeals.
assets.publishing.service.gov.uk/media/62cea659…
#ukemplaw

2/ This is lengthy litigation by B against her former union & 5 of its members. She started the litigation in 2008, lost it & then lost at the EAT & CA before the Supreme Court refused permission to appeal. The FDA applied for costs & partially succeeded. Both sides appealed.

3/ The EAT (Griffiths J) started by bemoaning how great the resources taken up by the case, & how litigation taking up the most resources seem to create their own chain reaction of further & more strenuous fighting. (It was a case in which FDA raised 50 points on costs alone!)

4/ The costs orders made (by EJ Heap) were limited to costs thrown away for 2 days' hearings/adjournment on a privilege issue. EJ Heap declined to make costs orders to FDA re more substantial applications in re the main ET proceedings & re B's recusal & disclosure applications.

5/ I'm not going to delve greatly into the maze of facts or their treatment in this thread, but there are some useful points to be made on points of law on the treatment of costs applications & appeals within the many grounds of appeal & cross-appeal, so let's focus on those.

6/ First, the difficulty in appealing a costs application, discouragement by the appellate courts from doing so, & the need to separate out helpful costs authorities explaining points of principle as against those reaching outcomes on particular facts.

7/ On costs for being found to have lied, the FDA relied on Daleside Nursing v Mathew where the EAT found the ET should've made a costs order for a cynical lie at the centre of a race discrim case.

8/ However, Griffiths J didn't consider that decision set out any principle mandating costs for an untruth. It'd have a chilling effect if it did. It's a matter for the ET's discretion in context. There's a difference b/w the cynical lie & an ET preferring 1 side over the other.

9/ In this case, as privilege had been waived the EJ had all legal advice, which advised B of good prospects of success. It was acceptable for the EJ to take that favourably advice (from experienced employment lawyers) into account in deciding not to award costs.

10/ Usefully for claimants facing costs applications on individual aspects of their claim, Griffiths J criticised most cases in which there are multiple issue-based costs applications rather than a holistic application (though I'd say deposit orders 1 of the potential exceptions)

11/ The EAT was unswayed by an argument that it was disproportionate for B to bring her claim given that the value of claims was dwarfed by the costs of bringing them.
The EAT noted ire discrim claims how such serious societal issues can justify a claim even if for no money.