Fees in the EAT are substantial. £400 to lodge an appeal, £1,200 for a hearing; totalling £1,600.
If you’re considering bringing an appeal, this may be disheartening. But the tactical considerations are relatively simple. Can you afford the fee? Are you entitled to remission? How likely are you to win? And how confident can you be of recovering your fee in costs if you do succeed? In the end, is the potential gain worth the risks?
If it’s the other side appealing, however, you are in a difficult position. If you lose the appeal, the other side is likely to apply for costs to recover their fee — just as you would hope to do in the tribunal. A successful appeal might leave you having paid a fee in respect of the ET you cannot now recover, an additional £1,600 to pay to the respondent in relation to their EAT fees and no award. At which point the whole exercise has cost you £2,800 (it could even be worse, some cases do involve multiple appeals).
No fee remission for a costs order
Fee remission only applies to fees that you pay; not costs in relation to fees someone else pays.
The EAT can consider a party’s financial means when deciding the amount of any costs award, rule 34B(2). If you do face this type of costs application, but have limited means, it will be well worth arguing that the EAT should reduce (even to £0) the amount of costs awarded on this basis.
However, we won’t know how inclined the EAT is to make such reductions until there are a few cases. It’s possible that they’ll be very common — with the EAT taking the view that anyone entitled to a remission shouldn’t have to pay a fee via costs either. Or they may be rare — with the EAT thinking that appellants are entitled to recover their fee.
Timing your appeal to minimise fees / costs
The way that the fee regime and remission works creates some odd incentives.
If you are entitled to a fee remission and you appeal, you will not pay a fee. But neither will the other side if they cross-appeal, since that doesn’t require a fee. Even if you lose both appeal and cross-appeal, you don’t run the risk of costs.
On the other hand, if they appeal first, and you cross-appeal, the other side almost certainly paid a fee and you are at risk of costs if they succeed.
This means that if you’re intending to appeal and entitled to remission it’s worth getting in quickly and letting the other side know that you’ve done so. It may even be worth talking to them and agreeing that you will put your appeal in first, so neither of you has to pay a fee.
There are, of course, reasons to be cautious on both sides. You don’t want to encourage a hostile appeal. If they wait for your appeal, but it’s rejected by the EAT on the sift, they will have lost their chance. Nonetheless, in some cases, cooperation will benefit both parties.
Different considerations apply if you’re not entitled to fee remission. Then you may want to wait for the respondent’s appeal yourself, in order to dodge the fee (bearing in mind that you might later face a costs application). But remember, if their appeal is rejected, you will miss your chance to cross-appeal and almost certainly be out of time to bring your own appeal.
Consider settling to avoid the fee
The possibility of a costs award means that, if the other side does appeal, you should make a cold, hard assessment of their chances. If you think they’re likely to win, it’s worth considering settling the appeal.
This will not only keep the costs down by avoiding the hearing fee in the EAT, but you may also be able to agree that they’ll bear their own costs entirely. Obviously, settlement isn’t always the right decision — much will depend on the specifics of your case and your circumstances. But probability of a costs award means thinking ‘Well, the ET decision is a bit dodgy, but why not see whether we get lucky in the EAT?’ is probably unwise.
There are two kinds of settlement you might want to consider. First, if you have been awarded something by the tribunal, is to settle on the basis of a reduction of the award and an end to the litigation. For example, say you’ve been awarded £15,000, but, having seen the other side’s appeal, think you were very lucky and, after an appeal and a remitted hearing, you’ll do well to be left with £5,000. If you can settle the EAT appeal for an agreement to be paid £10,000, you’ve come out ahead.
Second, is to settle on the basis that the case will be remitted to the tribunal. This will generally be appropriate where you agree that the tribunal has simply blundered and either the case needs to start again or some part of it needs to be decided afresh. The EAT will have to agree to allow the appeal by consent and they are likely to be reluctant to order a remission, even by consent, unless they can be persuaded that the tribunal has gone wrong.