(sitting alone) Mr P Longland v Meat & Livestock Commercial Services Ltd and 1 other — 2017

This judgment, decided on written submissions in chambers, dealt only with the first respondents' application for costs against the second respondents. The background was an earlier unfair dismissal dispute in which the claimant had succeeded against the second respondents after the tribunal found there had been a relevant TUPE transfer; the first respondents' claim against the claimant had been dismissed. After the Employment Appeal Tribunal refused the second respondents' appeal on 18 December 2016, the first respondents renewed their request for costs, saying they had incurred £24,525.80 and seeking the tribunal maximum of £20,000.

The tribunal applied a two-stage costs analysis under Rule 76 and referred to Scott v Inland Revenue Commissioners [2004] ICR 1410. It accepted that service provision change cases can turn on relatively small changes and that there are cases where a transferee plainly has no defence, but held that this was not such a case. Although the second respondents' own witnesses did not support their defence as well as hoped, and some of the points advanced in submissions were not supported by evidence, that did not show the TUPE defence had no reasonable prospect of success or that the proceedings were conducted unreasonably.

The tribunal therefore refused the costs application. It held that the first respondents' criticisms did not meet the Rule 76 threshold and said that, even if costs had been payable, it would not have awarded the full £20,000 sought. No costs order was made.