Should full costs be awarded automatically if a claim is lost following the payment of a deposit?
In the recent case of Oni v Unison the tribunal held that it does NOT necessarily follow that a full costs order will be made against the losing party, even if that losing party has previously paid a deposit into court.
The Claimant had a deposit order made against her.
At the final hearing, she lost her claim for the reasons covered in the deposit order.
Under Rule 39(5) of the Employment Tribunal Rules, the deposit would be paid to the Respondent and there was a presumption that her conduct in persisting with the claims had been unreasonable.
The Employment Tribunal at final hearing awarded the Respondent full costs to be assessed.
The matter was taken to the Employment Appeal Tribunal. On consideration the Employment Appeal Tribunal decided that the Employment Tribunal had failed to properly exercise its discretion and failed to consider all of the circumstances before reaching its decision about costs.
The Employment Appeal Tribunal held that this failure to exercise discretion was an error of law. The decision on costs will go before a new tribunal.
So, whilst it remains to be seen whether or not the eventual outcome will be that full costs be awarded automatically if a claim is lost following the payment of a deposit, the issue is up in the air, for now.
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