Costs against a fraudulent or lying Claimant

In Nicolson Highlandwear Ltd v Nicolson (Practice and Procedure : Costs) [2010] UKEAT the tribunal found that the Claimant’s dismissal, whilst automatically unfair, was by reason of his “prima facie fraudulent intromissions with the Respondent Company’s business”, and his compensation was reduced by 100%.

Costs were not awarded, due to a finding by the ET that the Claimant “did not act unreasonably” in bringing the claim. Lady Smith finds this conclusion perverse. This goes further than the recent line of cases – see my post last year on two authorities deprecating tribunals’ refusals to award costs against lying Claimants.

This case is rather fact sensitive, but will be grist to the mill for many Respondent representatives trying to recoup the cost of meritless or vexatious claims. Another important point comes from Lady Smith’s rejection of the notion that it is legitimate to bring a claim for unfair dismissal simply to obtain a finding that it was so – there is a declaratory power in discrimination legislation, but not in Part X of the Employment Rights Act 1996. Many many clients have told their lawyers in conference that “it’s not about the money, it’s the principle”, but this EAT judgment will strengthen that lawyer’s warning that courts and tribunals do not usually look at it that way.

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