[Thanks to Michael Reed Employment Legal Officer at the Free Representation Unit for preparing this case summary]Can a tribunal hear a costs application if they have expressed an opinion demonstrating that they have already reached a conclusion on costs?
No, said the EAT in Oni v NHS Leicester City.
Mrs Oni lost her case. The tribunal found it was 'without foundation' and doubted the 'genuineness of these complaints'.
The tribunal also said 'not only was the bringing of the various claims unreasonable but the manner in which they have been conducted was also unreasonable.'
NHS Leicester City applied for costs. Mrs Oni asked the tribunal to recuse themselves because they had already said her claim had been brought and conducted unreasonably - the key issue when considering costs.
The tribunal refused, but the EAT found they were wrong to do so. Tribunals may express themselves fully on the issues before them, which may involve trenchant critisism of the parties. But they should not reach conclusions on other issues, such as costs, until they become relevant.
The EAT also advised that tribunals should enquire into a party's means when considering costs. The County Court form EX 140, used to gather information on a debtor's financial position, may be a useful tool for doing so.