A short reminder, courtesy of HHJ McMullen QC that Rule 40(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 does not require unreasonable behaviour for costs to be awarded where an application for a postponement is made.
In Gillingham Football Club & Mr P Scally v McCammon (2011) UKEAT/0625/11/RN (paras 33 – 35) it was noted that costs could follow under Rule 40(1) following a successful application for a postponement/adjournment without any of the “pejorative epithets” such as vexatious or unreasonable conduct that can be found in Rule 40(2), utilising the circumstances in Rule 40(3).
In a case which appeared on the EAT website the same day, in Osonnaya v Queen Mary University of London (2011) UKEAT/0225/11/SM HHJ McMullen QC repeated the point (para 26) stating in relation to Rule 40(1):
“ This does not carry the condign criticism of behaving unreasonably. It is a simple proposition that if the Claimant makes an application and it causes costs to be incurred, and it is successful, then the Judge may order costs to follow.”
This is in accordance with the wording of the Rules and therefore does not represent much of a revelation. However, in my experience Rule 40(1) often gets overlooked in parties minds in favour of Rule 40(2). These cases serve as a useful reminder.
Ultimately, the Tribunal retains discretion as to whether or not costs should be awarded. It would be wrong to treat the mere fact of a postponement as creating strict liability for costs. The point is that the threshold under Rule 40(1) and Rule 40(2) are different.
On a final point, it should be noted that in the Gillingham case HHJ McMullen QC described (para 33) as unreasonable Counsels claim for costs due to the time lost by the case being taken out of the diary, the reasoning being that the case would return at a later date. The fact that the case would need to be read into again and would take up a second period in Counsels diary did not appear to factor as counter arguments.
