Although tribunals can advise claimants about any risks they might be taking if they follow a particular path, they must also assess all claims objectively. In Hussain v Nottinghamshire Healthcare NHS Trust, the Employment Appeal Tribunal (EAT) held that the tribunal had not reached a “concluded view” when it pointed out to the claimant that the weakness of his claims might result in costs being awarded against him.
Basic facts
During the course of a hearing to determine whether the Trust was liable for the claims that Mr Hussain had brought against it, the tribunal judge warned him that the apparent weaknesses in his case were such that a costs award might be made against him.
After the case was adjourned, Mr Hussain lodged a complaint that the tribunal was biased against him. This was rejected, although he was told that he could make an application for the panel to recuse (excuse) itself, but he did not do so.
When the hearing resumed, his claims were rejected as was his appeal against that decision. The matter then returned to the tribunal to determine the Trust’s costs application for almost £100,000.
Tribunal decision
Whilst taking account of Mr Hussain’s depression, the tribunal noted that the Trust had written to him on three occasions pointing out the weaknesses in his claims and putting him on notice that it would seek costs against him. It also took account of the “robust terms” in which Mr Hussain rejected those overtures, which was indicative of his “strident intransigence”. The tribunal itself had also pointed out the apparent weakness of his claims to him and the likelihood of a costs order being made against him.
Against that background, the tribunal was satisfied that it was appropriate to make a costs order against him for 85 per cent of the total claimed by the Trust.
Mr Hussain appealed on the basis that the tribunal’s remarks were made at such an early stage in the proceedings that they were evidence of a “concluded view” and that it should therefore have recused itself. He also argued that the tribunal had not properly set out the basis of the 85 per cent award.
EAT decision
The EAT pointed out that although tribunals must be objective, they also have to give guidance to parties as to how their case might be viewed and the risks they might be taking if they continue down a particular path. Indeed, in certain circumstances, not to do so could be considered a failure to try to ensure a level playing field. At the same time, tribunals had to be careful not to reach a conclusion about the case before it had had the opportunity to hear from both sides.
In this case, the EAT was satisfied that the tribunal had not made up its mind early on. Although it had suggested to Mr Hussain that he should consider whether his claims had any prospect of success, it was not expressing a concluded view and was simply warning him that he was at risk of having costs awarded against him.
It did, however, find that that the tribunal had not adequately explained why it made an order for 85 per cent of the total costs. The EAT therefore remitted this point to the same tribunal to reconsider whether the award was meant to apply to costs post-dating the first costs warning sent by the Trust or to all costs.