Guidance note on costs

Guidance notes on costs

The Minister for Social Security has amended the Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016 to enable the Tribunal to award costs in limited circumstances.

The Order comes into force on 25 July 2025. It applies to all claims including those started before the Order comes into force.

Overview

At the end of a case a party can apply for a costs order against the other party.

Costs will only be awarded where the Tribunal considers that a party’s conduct has been vexatious, abusive, disruptive or unreasonable.

The maximum costs that can be awarded are £10,000.

Article 40A of the Procedure Order

The Procedure Order says: -

40A Costs orders

(1) The Tribunal may make a costs order, on its own initiative or the application of a party, only if it is satisfied that a party (or their representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably either in the bringing of proceedings or in the conduct of proceedings.

(2) An application for costs must be made to the Tribunal at the conclusion of proceedings (either orally in writing) or in writing within 21 days after that conclusion.

(3) If the Tribunal has indicated that it is minded to make an order for costs, or if an application for costs has made under paragraph (2), the party against whom the order might be made may make representations within 14 days of the date of the Tribunal’s indication or the application as appropriate.

(4) The costs are to be awarded on an indemnity basis but must not exceed £10,000.

(5) In deciding whether to make a costs order and if so the amount of the order, the Tribunal must have regard to the ability of the party concerned to pay.

(6) If a costs order is made in favour of a respondent, it may be enforced as a civil debt in the same manner as costs awarded under Article 4 of the Civil Proceedings (Jersey) Law 1956.

(7) In this Article “indemnity basis” has the same meaning as in Rule 12/5 of the Royal Court Rules 2004.

Who can make the application?

An application for costs can be made by a claimant or respondent. The Tribunal can also make a costs order on its own initiative.

When can the application be made?

The application can only be made at the conclusion of proceedings.

Proceedings are concluded when: -

A claim is withdrawn in its entirety under Article 33.
No response is filed, or the claim is not contested leading to a judgment on the whole claim under Article 12.
The whole claim or response is dismissed because it has no reasonable prospects of success under Article 18.
The whole claim or response is struck out under one of the grounds set out in Article 24.
The whole claim or response is dismissed because of a failure to comply with an unless order made under Article 24.
The whole claim or response is dismissed by the Tribunal following an interim judgment e.g. on the grounds that the claim is out of time.
The claim is determined at a final hearing.

If part of a claim remains unresolved the proceedings will be ongoing. No application for costs can be made until all parts of the proceedings including any counterclaim are finished.

The date on which the proceedings conclude is the date the order or judgment is communicated to the parties.

When can costs be awarded?

Costs can only be awarded if the Tribunal considers that a party (or their representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably either in the bringing of proceedings or in the conduct of proceedings.

It is not possible to provide a definitive list of situations in which a costs order may be made. The following are factors the Tribunal may consider: -

How far the proceedings have progressed. A claim that is withdrawn before the first case management meeting or shortly thereafter is unlikely to result in a costs order. A claim that is withdrawn late in the proceedings is at greater risk of costs. This does not include withdrawal as part of a settlement. Late concessions by respondents may also be an example of unreasonable behaviour.
Failing to turn up to a hearing without good excuse.
Continuing with a claim or response or parts thereof that are hopeless. In many cases there will be a genuine dispute on the facts or the law. A party will not be penalised in costs for pursuing an argument that has reasonable prospects of success. The Tribunal may make a limited costs order where an otherwise successful party is ordered to pay the costs associated with aspects of the case found to be hopeless.
Failing to accept an offer of settlement that is more than or close to an award made by the Tribunal.
Sending abusive correspondence to the other party or engaging in correspondence that is irrelevant to the issues in dispute.
The ability of the party to pay any costs order.

Where it is apparent to the Tribunal that a costs risk exists, it will warn the party of the risk. However, a lack of warning does not mean that costs cannot be awarded.

How to apply for costs

Where there has been a case management meeting or interim hearing the application will be dealt with by the same Chair. If a panel was convened for a final hearing the whole panel will consider the application.

The application must be made within 21 days after conclusion of the proceedings. The use of the word “within” means that the application must be made before the 21 days expire. This means that if the order or judgment is communicated to a party on a Friday the deadline for making the application will be at midnight on the Thursday 20 days later.

The application can be made either orally or in writing. This means that an application can be made orally at the end of a hearing.

Any application whether oral or written should set out which of the reasons for making an order apply i.e. vexatious, abusive, disruptive or unreasonable.

Where there is a written judgment, a party considering making a costs application is advised to wait until receipt of the judgment before making an application. There may be findings in the judgment that indicate whether the criteria for making a costs order are met.

If an application for costs is made, or the Tribunal indicates that it is considering making a costs order, the other party will be given 14 days to respond. The response should include information about the ability of the party to pay any costs order made.

The Tribunal will not usually convene a separate hearing for a costs application but will determine the application based on the oral and written submissions.

Evidence of costs

Except in a very simple case the party seeking costs must provide a schedule of the costs being claimed. Costs that do not directly relate to the proceedings cannot be claimed - such as dealing with a Data Subject Access Request.

A simple case would be for where a party takes a day off work to attend a hearing and seeks a day’s pay. In this case it will be sufficient for the party to produce evidence of the daily rate.

In more complex cases the Tribunal must be provided with a schedule with the following information: -

Time spent by the party (or people employed by the party) on the case and the hourly rate claimed for each person based on pay rates, not charge out rates. Electronic time recording systems are acceptable where there is a narrative of the work done. Pay rates must be evidenced by reference to contractual terms.
Time spent on the case by external consultants and lawyers and their hourly rates as charged to the party together with copies of all bills and invoices. There should be a description of what has been done for each hour of time claimed. Electronic time recording systems are acceptable where there is a narrative of the work done.
Any other disbursements such as travel costs, copying costs, the costs of files and dividers etc with receipts.

In determining which costs to allow the Tribunal will apply the indemnity principal as set out in Rule 12/5 of the Royal Court Rules 2004. This says: -

“On a taxation of costs on the indemnity basis all costs shall be allowed except insofar as they are of an unreasonable amount or have been unreasonably incurred and any doubts which the Greffier may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party.”

This means that if the Tribunal is in doubt as to whether costs are reasonably incurred the costs will be allowed.

In deciding whether costs are reasonable the Tribunal will be mindful of the fact that lawyers are not generally required in the Tribunal. Unless there is a complex point of law or the other side has also instructed lawyers the additional cost of lawyers may be considered unreasonable.

In deciding how much to award the Tribunal must have regard to the ability of the party concerned to pay.

The maximum that can be awarded is £10,000.

Enforcement of costs order

Enforcement of costs orders is via an application to the Petty Debts Court.

July 2025