The EAT in Portnykh v Nomura International has clarified a number of things about applications for costs in respect of fees in the EAT (and by analogy in the ET).
HHJ Hand QC confirms that the general approach should be that the party that has broadly lost an appeal should be responsible for the fee. So, if they are the respondent, it will normally be appropriate for the EAT to order costs against them in the value of the fee.
He rejected two arguments against this. First concluding that the fact that the appeal was about the case management of the tribunal, rather than a substantive decision, was irrelevant to the issue of fees.
Second, he found that the claimant had acted unreasonably in the conduct of the appeal. But that this should not prevent her obtaining a costs order, because it had not made any significant difference to the conduct of appeal. This leaves open the possibility of a parties in other cases trying to avoid paying fee costs on the basis that unreasonable conduct by the other side did make a substantive difference to the conduct of the case.
The EAT also faced the problem of what to do where the costs have been paid, but there is an outstanding application for fee remission. This was solved by delaying the payment of costs until after the decision on remission was made. If the remission was granted there would be no fee paid and no costs.