Costs - Misguided Allegations of Discrimination

[Thanks to Kathleen Donnelly of Henderson Chambers for preparing this case summary]

Should a tribunal award costs where "scandalous and vexatious" claims are withdrawn or struck out at a PHR on jurisdictional grounds?

Not necessarily – if the claims are contested and the evidence hasn't been tested – according to the Court of Appeal in Dean & Dean v Dionissiou-Moussaoui.

The Claimant made serious allegations of sex discrimination against a partner of her former firm. The Respondent said the allegations were scandalous and salacious, and bound to fail.

The claims were struck out at a PHR on jurisdictional grounds, for non-compliance with the statutory grievance procedure and statutory time limits.

The Respondent sought substantial costs against the Claimant, but the tribunal did not exercise its discretion to order any award. The Respondent appealed, arguing that the particular context of the case had not been properly taken into account by the tribunal.

The EAT and CA found no error of legal principle by the tribunal. The way in which the claims had been determined meant that the tribunal considering the costs application was not in a position to determine whether the sexual misconduct claims were true or false. It had to do the best it could with what it did know, and that decision should not be interfered with even if the CA might have reached a different decision.