When considering an application for costs on the basis that a claim or response had no reasonable prospect of success, under ET Rule 76(1)(b), should a tribunal look at the ET1 as a whole?
No, held the EAT in Opalkova v Acquire Care Ltd, it should consider each statutory cause of action separately.
The ET1 alleged six causes of action. One was conceded before trial, two succeeded at trial and three were dismissed. The Claimant appealed the tribunal's refusal to make a Preparation Time Order in her favour.
Having reviewed the definitions of 'claim' and 'complaint' as set out in rule 1 of the ET rules, the EAT confirmed that 'claim', in the context of an application for a costs or time order, means each separate cause of action, not the whole of the proceedings brought in the claim form. When determining whether the threshold had been crossed, each should be considered separately.
There are three key questions:
1. Did the claim or response have no reasonable prospects when submitted? Did it reach a stage where it had no reasonable prospect? This is an objective test.
2. At the relevant stage, did the paying party know that?
3. If not, should the paying party have known?