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£1,600 in fees to appeal to the EAT…can you recover this from the respondent?

In contrast to the ordinary civil courts, it is unusual for the Employment Appeal Tribunal (EAT) to order that the ‘losing party’ should pay the winner’s legal costs. That said, the EAT does have scope to award costs in certain circumstances, including where the proceedings have been unnecessary, vexatious, misconceived or conducted in an unreasonable manner.

Since the introduction of tribunal fees, a party who chooses to appeal to the EAT must pay a £400 lodging fee and a £1,200 hearing fee. If the appeal is successful, the EAT can order the responding party to reimburse the appellant in respect of these fees.

In the recent case of Horizon Security Services Ltd v Ndeze & another the EAT provided guidance that will be useful for those contemplating bringing or defending an appeal:

  • It remains the case that a successful appellant to the EAT is not entitled to recover their legal costs from the other side simply on account of their success. Before legal costs can be awarded, one of the particular factors (eg. vexatious proceedings) must apply.
  • However, a successful appellant will generally be entitled to recover any EAT fees it has paid from a respondent who has actively sought to resist the appeal.
  • This will be the case even if the usual grounds for awarding costs (eg. vexatious proceedings) don’t apply.
  • However, the recovery of fees is not automatic: the EAT has a broad discretion and will consider the particular facts. Recovery of fees may not be appropriate where, for example, the appellant has only been partly successful, or where the respondent’s means are such that it could not pay the amount.

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