Mr S Neaman (Counsel) v Respondent — 2017

The tribunal heard two respondent costs applications in a two-person panel after Mr Carter was unavailable and the parties consented to proceed with Employment Judge Baty and Mrs C I Ihnatowicz. The first application related to case 2201358/2015, the earlier disability discrimination claim that had been dismissed in full. The second related to case 2207838/2016, a victimisation claim in which the claimant had withdrawn two of three allegations before the costs hearing. The respondent sought more than £300,000 on the first application and capped its request at £20,000 on the second.

Applying the two-stage costs test under Rules 74 to 84, the tribunal held that the first claim had been conducted unreasonably and had had no reasonable prospect of success. It relied on its earlier findings that, in a number of respects, the claimant had not told the truth or had misled the tribunal, and on the finding that he raised the disability allegations only in January 2015 during settlement discussions after not raising them for about five years. The tribunal also treated the March 2016 costs warning letter as relevant and rejected submissions that the absence of a prior strike-out or deposit application counted against the respondent.

On means, the tribunal found that the claimant had debts of about £235,791 and was not working, but declined to take that evidence into account because it found his evidence about finances unreliable and because he continued to fund litigation through his parents or borrowing. It also considered that he had substantial past earnings, was pursuing High Court proceedings for £5 million, and could realistically obtain future employment. It therefore made a costs order on the first application in the full amount sought, subject to detailed assessment before an Employment Judge.

For the second application, the tribunal found the withdrawn victimisation complaints appeared weak but, without hearing full evidence, was not prepared to find that they had no reasonable prospect of success. It also held that the withdrawal six weeks before the hearing was not unreasonable. The respondent's application for costs in case 2207838/2016 therefore failed.