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Fee Shifting in the EAT

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Thanks to James English of Samuel Phillips solicitors for preparing this case summary

Should an unsuccessful Respondent in an Employment Appeal Tribunal case pay the £1,600 issue and hearing fees incurred by the successful Claimant?

Normally yes, holds the EAT, in Portnykh v Nomura.

Having dealt with an interlocutory appeal, the EAT had to consider whether or not it should order the Respondent to pay all or part of the Claimant's fees. Rule 34A(2)(a) gives the EAT a discretion to do so if the appeal is successful in full or in part.

The EAT considered a number of factors, including the fact that the appeal was a highly arguable matter in a difficult area, that it was an interlocutory or case management issue rather than a full merits hearing, and that the Claimant had not behaved in a helpful or co-operative way. Nonetheless, the EAT concluded that the Claimant's appeal had succeeded, that an appellant of a substantive judgment should be in no better position, and that the Claimant's conduct had not influenced the conduct of the appeal.

However, the costs order was made conditional on the Appellant's application for fee remission (the outcome of which was not yet known) being unsuccessful.

This resonates with the recent judgment in the Unison judicial review, where the court noted that a successful Claimant would normally expect to recover fees from the Respondent before the employment tribunal.