No, held the EAT in Goldwater v Sellafield Ltd. Rule 34A (2A) provides 'If the Appeal Tribunal allows an appeal...it may make a costs order against the Respondent specifying the Respondent pay to the Appellant an amount no greater than any fee paid by the Appellant...' .
As the GMB had paid its members' EAT fees, the EAT could not order the Respondent to pay a fee where "the plain fact is that the Appellants have paid no fees at all...and...the maximum order that can be made is therefore nil."
The EAT noted that the judgment was limited to Rule 34A (2A) and not other rules which allow for costs orders for 'costs incurred by another party'. Practitioners may wish to note that the corresponding rule 76 (4) in the employment tribunals permits an employment tribunal to order a party to pay costs 'where a party has paid a Tribunal fee', similar to Rule 34A (2A).
The judgment is likely to be controversial and if followed in the EAT and in employment tribunals, would present a stark contrast to the costs rules allowing insurers to recover costs on public policy grounds (see Mardner v Gardner). This might lead to supported parties entering 'loan' arrangements to pay fees and so be able to recover them.