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Assessing Costs in ETs

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[Thanks to Nadia Motraghi of Old Square Chambers for preparing this case summary]

Does a tribunal have to take into account a Claimant's capital when considering his means in the context of making an expenses award (costs in England & Wales)?

The EAT held that it does in Shields Automotive v Grieg. While a tribunal was not bound to consider a paying party's means (see r41(2) ETR 2004), if it did, it was required to take account of his whole means, including his capital in the former matrimonial home.

Secondly, the Claimant's misrepresentations below came back to bite him after the EAT heard fresh evidence from his estranged wife refuting the nature and extent of his outgoings and regarding disposal of capital prior to the hearing.

The EAT held that given the Claimant's misleading evidence, no tribunal could properly assess the Claimant's means. Therefore it was appropriate for no account to be taken of his means. The EAT ordered the case be remitted to the tribunal for the Claimant to pay the whole of the Respondent's expenses below and ordered remission of the assessment of the expenses to the Auditor of the Sheriff Court (detailed assessment in the County Court in England & Wales).