Appeal against costs award allowed with the EAT citing that there could be a distinction to be drawn when it comes to discrimination claims compared to other types of claim.

This case involves a costs application where the respondent was awarded £20,000 against the claimant, who had unsuccessfully filed a race discrimination claim after not getting a job. In the application process the claimant asked for the interview to be moved to an afternoon so he could get a cheaper train ticket – this was refused.  However, the white Irish applicant had his moved to the following day. A white British applicant was ultimately successful with the claimant second. The claimant evidenced this discrimination by stating that only 2.9% of the staff at the respondent were non-white.

The matter for the EAT was well explained by His Honour Judge Tayler in the first paragraph which stated: 

‘Should costs applications in discrimination complaints be treated differently to costs applications in other types of complaint? In one sense, obviously no, but in another sense, the answer will often be yes.  Let me explain.  The legal test for an award of costs is the same whatever the complaint.  But there are features about many, but not all, discrimination complaints, and other similar complaints, that require special consideration when that legal test is applied. There are also policy considerations that may be relevant to discrimination and similar complaints.’

This was the question to be discussed and decided upon by the EAT.

At first instance, the Tribunal found that the claimant should have realised when acting in person that the claim had no reasonable prospect of success and that after he obtained legal representation, he must have received advice to that effect.  The EAT found that it was ‘surprising’ that the Tribunal felt that the claimant ought to have been aware that his claim had no prospects of success when he was unrepresented considering the Tribunal also stated it was irrelevant that the professionally represented respondent did not apply for a strike out on the basis that it would be unlikely to be successful considering that a similar test would be employed.  The context which is crucial to such discrimination cases also came to bear when the Tribunal stated there was no evidence at all that race played a part with them finding that the distinction between the claimant and the white Irish applicant was that the latter sought to change the date whereas the claimant sought to change the time.  The EAT felt that this permitted change, and his being refused could be reasonably taken as some limited support for the claim.  Further – the Tribunal considered the conduct of the claimant when he stated that there was widespread racism from the privileged and education Caucasian professionals including Judges and that he was combative and argumentative in cross-examination.  The EAT held that the Tribunal’s finding that the belief of widespread racism was irrelevant, but it was not a reason to award costs against him for expressing that opinion.  Accordingly, the case was remitted back to a new Tribunal for the costs application.

The Judge has very clearly explained a key distinction as it arises between different types of claims and how the same law relating to costs application may need to be looked at in light of the claim.  In this situation – a minor distinction between changing the date and changing the time for instance may give some grounds for believing that the difference in treatment was due to race.  Whilst that may not have been the case – the Tribunal would need to be aware of whether there were no reasonable prospects of success and in the contextualised position of discrimination cases this would have to be looked at from when the case was started rather than after the evidence had been given and cross-examined.

You can read the case in full here.