D-BRIEF – Employment & Pensions Blog: Awards of costs

In Bailey v Garden Court Chambers and others, a £20,000 costs award has been made against a Respondent for unreasonable conduct in preparing the trial bundle. 

The case

In 2022 Ms Bailey won her claim in the Tribunal against Garden Court Chambers for discrimination and victimisation based on her gender critical and philosophical beliefs. For further information you can read our previous blog article here.

Costs Awarded

Following an application by Ms Bailey for costs, the Tribunal has ordered Garden Court Chambers and its 2 Kings Counsel representatives to pay £20,000 towards her costs. The basis of the costs order was that there had been unreasonable conduct by Garden Court’s solicitors in preparing the trial bundle, including the following issues:

• Large parts of the hearing bundle were not OCR-readable.
• Very large number of documents were omitted from the main bundle index, leading to sub-indexes having to be created.
• A number of documents were added to the bundle late.
• The Respondent’s solicitor’s refusal to resolve various issues, including providing access to a shared drive, the labelling of documents and the timing of the bundle being prepared late into proceedings.

The Tribunal commented that imperfections occur with bundles, but rarely together or in such a quantity as in Ms Bailey’s case.

What is a costs award and when can it be awarded? 

A costs award constitutes an order which can be enforced in the courts stating that one party must pay another party for their costs, either fully or partially.

Other than in very specific circumstances where a Tribunal must make a costs order, an award of costs in the Employment Tribunal is normally only made against a party which it is found to have behaved vexatiously, abusively, disruptively, or otherwise unreasonably, or where they have pursued a case that had no reasonable prospects of success. Even when a party has behaved that way, the Employment Tribunal has discretion over awarding costs and are usually wary in doing so.

Cost orders in the Employment Tribunal are very much the exception rather than the rule meaning that even after a judgment has been made, the winner is not automatically entitled to their costs.

Comment

This case is a helpful reminder that there can be consequences for parties that do not act reasonably in their conduct of Tribunal proceedings. It also highlights the importance of hearing bundles being prepared properly, in a timely manner, ensuring there is cooperation between the parties and that the bundle  is ordered and indexed logically, to assist the Tribunal at a hearing.  Since the pandemic the majority of cases in the Employment Tribunal are heard via video conferencing meaning the importance of a properly prepared hearing bundle is even more pronounced when it is being accessed electronically from different locations.  Particular criticisms in the Bailey case were that the bundle was not searchable, it was not in a chronological order and contained multiple copies of the same email in different formats. Online bundles can be a difficult task and with Respondents normally the one tasked with preparing the bundle, we suggest legal advice is taken at an early stage to ensure this is done correctly.  As highlighted in this case, a poorly prepared bundle can not only attract criticism, but also raises the possibility of a costs order being made.  

For further information please contact Employment Team.