Costs - Assessment of Wasted Costs Orders

[Thanks to Rad Kohanzad of Atlantic Chambers for preparing this case summary.]

Can an employment tribunal refer a wasted costs order to the County Court to be assessed?

No, says the EAT in Casquerio v Barclays Bank.

In contrast to an ordinary costs order (made under rule 41), with a wasted costs order (made under rule 48) there is no express provision for the employment tribunal to refer the matter to the County Court for assessment. Therefore the employment tribunal has to deal with the assessment themselves and make an order in a specified sum. Slade J suggested that this may have been a drafting oversight.

Interestingly, whilst recognising that the question of the paying party's ability to pay is not expressly referred to in rule 48, Slade J remitted the question to the employment tribunal. She indicated the possibility of the paying party's means being taken into account as part of the third limb of the Ridehalgh v Horsefield test, i.e. whether it is in all the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs.