Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Unless Orders can be made in relation to costs application as it falls within ‘any part of it’ aspect of the Rules of Procedure.
The claimant applied for a post with the respondent. The second respondent ran the recruitment exercise. The claimant was not successful and was not shortlisted. She brought a claim alleging sex and race discrimination. These claims were dismissed. The second respondent made a costs application and an order was made for them to table a costs schedule.
The costs schedule was submitted albeit 4 hours after the deadline and it sought relief from sanctions. This was granted on the papers and the claimant sought reconsideration which was refused.
The claimant appealed to the EAT relating to the relief from sanctions granted to the second respondent and the failure to allow reconsideration of the decision. The claimant argued the Tribunal erred as they treated the relief from sanctions application in respect of an unless order but no unless order could be made in relation to costs application. She also argued that she did not have a fair opportunity to be heard prior to the decision being made considering that it was decided on the papers.
The EAT held that unless orders could be made in relation to an application for costs. Rule 38 allowed such an order to make in respect of any claim or response or any part of it. That final aspect relating to ‘any part of it’ would also include issues such as costs. The test to be applied was whether it was in the interests of justice to set aside the unless order. To this end, there is no rule requiring exceptional circumstances as to why there was a failure to comply. It was a matter of judicial discretion which belonged to the Tribunal. Accordingly, there was no way the EAT would interfere with the decision of the Tribunal.
Claimant
Sivanandan
Respondent
Independent Office for Police Conduct
Penna Plc
The procedural aspects relating to the Tribunal can be of the utmost importance when it comes to the substantive decisions, the admissibility of evidence and other features such as costs. The latter was discussed here with it being held that unless orders could be granted for such applications as there was a catch-all within the rules of procedure which went beyond just claims and responses.
You can find the full case here:
https://www.gov.uk/employment-appeal-tribunal-decisions/ms-n-sivanandan-v-1-independent-office-for-police-conduct-2-penna-plc-2025-eat-7
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