Appeal against a costs award dismissed as the assessment of no reasonable prospect of success can come throughout the period of the claim rather than solely being at the outset of the claim.

The claimant brought several claims against the respondent which were all ultimately dismissed. The final liability hearing was over seven days in April 2022 and 5 days in November 2022. In April the claimant represented himself but in November he was represented by counsel. In April, the Tribunal raised concerns about the viability of the claims and urged the claimant to take legal advice. A costs warning letter was sent from the respondent stating they would not pursue costs if the claim was withdrawn. The claim, however, proceeded.

The respondent sought costs on the basis that the claims had no reasonable prospect of success. The Tribunal awarded the full amount sought of £7,500 of counsel’s fee attending the November hearing.

The claimant appealed this arguing that the proper construction of the rules was that the time for assessing whether there was a reasonable prospect of success was at the outset of the proceedings. The argument being that the same principles should be applied as that of strike out and that as the respondent did not apply for strike out then that should have been considered as to whether costs were awarded.

The appeal was dismissed. The EAT outlined the subtle difference in the wording between strike out and costs.  For strike out it states, ‘has no reasonable prospect of success’ but for costs it states, ‘had no reasonable prospect of success’. Whilst in previous cases this had been examined as looking at the outset of the hearing that was not regarded within the judgment as always having to be at the outset of the litigation. There was nothing to stop costs being sought for part of the proceedings as was the case here. Accordingly, there was nothing as a matter of the construction of the rules to stop an application for costs being made from a particular point within the proceedings.

On the argument relating to the failure to apply for strike-out the EAT stated that it had some potential relevance, but it was not determinative of an application for costs. To this end, the Tribunal had considered the claimant’s submission but decided not to attach any significant weight to that factor which was their right.

This case on seeking costs is useful in the tactics that may accompany Tribunal action. The EAT makes it clear that there is nothing within the construction of the Tribunal rules which mandates that the assessment for no reasonable prospect of success must be carried out at the outset of the litigation when it comes to retrieving costs.  Instead, it can be looked at through the proceedings where costs are being retrieved.  Additionally, the fact that no strike out was sought is a consideration but is not determinative of a later costs application.

You can read the case in full here.