[Thanks to Nathaniel Caiden for preparing this case summary]
Can a party to an appeal from the EAT to the Court of Appeal successfully apply (before the final hearing of the appeal) for the usual cost consequences not to apply?
Yes, says Jackson LJ in Manchester College v Hazel & Anor.
The Court of Appeal had to decide whether the employees, whose application was made under CPR r.52.9, were entitled to cost protection in an upcoming appeal by their employer in the Court of Appeal. The court decided that there was "a compelling reason" as required by CPR r.52.9 for it to apply the cost protection condition to the appeal as, amongst other things, the employees: had won at both the employment tribunal and EAT, had limited means, were relying on pro bono representation and would not be able to continue resisting the appeal unless they received costs protection.
Although fact specific the case is of more general importance as one of the reasons relied upon by Jackson LJ was that from 1 April 2013 the case would fall squarely within the new CPR r.52.9A. This new rule allows the court to exclude or limit cost recovery when a case passes from a "no costs" or "low costs" jurisdiction to a court with full costs shifting powers. Notably this new rule does not require a "compelling reason" and will mitigate the harshness of Eweida v British Airways PLC in which the court held that despite the appellant moving from the "no cost" jurisdiction of the EAT to the cost shifting jurisdiction of the Court of Appeal it had no power to make a protective costs order or costs capping order.