Costs in the EAT

[Thanks to Ed McFarlane of EEF for preparing this case summary]

The EAT (Burton J) has handed down its decision in G4S Services v Rondeau, which is authority for the proposition that a failure by a party to consider a reasonable settlement offer, even if just by making a reasonable counter-offer, can amount to unreasonable conduct and justify a costs order.

The Tribunal Claimant was resisting the appeal, and settled just before the hearing, accepting an offer he had turned down some months previously. The EAT held that not accepting the initial offer, and/or failing to make a reasonable counter-offer, was unreasonable conduct which justified a costs award, even in the EAT, which, like the Employment Tribunals, is normally costs-free.

The EAT observed that a party is entitled to resist an appeal unless and until there is an outcome or an offer which requires consideration, and described making and considering offers as "part and parcel of any litigation proceedings".