In the case of Portnykh v Nomura International plc, for the first time since the tribunal fees were introduced last year, the EAT has made a conditional order that the respondent (NI plc) must pay the appellant’s (P) fees of £1,600 in respect of his successful appeal. The order was conditional upon P’s application for fee remission being refused.
P paid a hearing fee for his appeal against an employment tribunal’s decisions arising out of a case management hearing in his claim for unfair dismissal. When he paid the fee he also applied for fee remission. He was successful in his appeal in the EAT, however by the time his appeal was decided his application for fee remission had not been reviewed.
The EAT had to decide whether to exercise its discretion under the new rule 34A(2A) of the Employment Appeal Tribunal Rules 1993 and order NI plc to repay P the fee. The EAT noted that the rules and the practice direction make no provision for an order to be made for the repayment of a fee where an application for fee remission is successful. Therefore the EAT made a contingent order postponing payment of the fee until P’s application for fee remission had been decided and making payment conditional upon the application being rejected.
The EAT said that they did not see why there should be a distinction between someone who has paid a fee in respect of an interlocutory appeal and someone who appeals the outcome of a merits hearing. They also said that it was irrelevant that P had not conducted the litigation in a helpful or co-operative way as they were of the opinion that this made no difference to the conduct of the appeal.
Therefore NI plc was ordered to repay P’s fee of £1,600 as they had the means to pay and had substantially lost the appeal. The order was conditional on P’s application for remission being refused and if the application was refused, the fee would be payable within 14 days.
This is the first case to be decided on the point since the new rule 34A(2A) of the Employment Appeal Tribunal Rules 1993 was introduced last year and so it remains to be seen how often, and in what circumstances, this power will be exercised by the EAT.