Monday 20 March 2006

Late Response Form - Costs

The EAT has handed down a decision which is likely to be used as authority for the proposition that a Respondent who triggers the need for a review hearing (because of not lodging an ET3 within 28 days) should pay the costs of that hearing.

The Respondent failed to lodge a Response Form, so the tribunal ordered that it could take no further part in the proceedings.

The Respondent subsequently wrote stating that it had been subject to a takeover, that it could not trace receipt of the Claim Form, and asking for the Claim Form to be re-sent to them.

The tribunal treated the letter as an application for review, and held that the Respondent had deliberately shut its eyes to the claim (having been in pre-action correspondence with the Claimant), and that's its denial of receipt was implausible. The application for review was therefore refused without a hearing.

The EAT, whilst critical of the Respondent, stated that it was wrong for the tribunal to refuse the review without, at least, having a hearing.

However, the EAT ordered costs against the Respondent. In an important paragraph (para. 34), HHJ Peter Clark held that the fact the Respondent had failed to deal with the Response Form properly led to the proceedings in the EAT which - technically - were unnecessary. This warranted a costs order (which was not resisted by the Respondent).

The wording of the EAT costs rules are slightly different to the ET costs rules, allowing costs were an appeal is 'unnecessary'. However, review applications triggered by late Response Forms will probably fall under the 'unreasonable conduct' limb of the ET costs rules - so expect this to become a standard authority to be quoted in costs applications following successful (or, indeed, unsuccessful) reviews of default judgments / decisions that the Respondent can take no further part.

British School of Motoring v Fowler

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