“Without more, to conduct a case by not telling the truth is to conduct a case unreasonably, it is as simple as that”. A difficult proposition to challenge, you might think. How much more fundamental to the reasonable conduct of judicial proceedings can you get than telling the truth?
However, it is not so simple as that, says the Employment Appeal Tribunal in Kapoor – v – Barnhill Community High School last month. The EAT overturned an award of £8,900 costs against Mrs Kapoor after she was found in Tribunal “and it really cannot be dressed up, to have presented a case that she has put forward falsely”. The consequences of a finding that a party has behaved unreasonably in the conduct of Tribunal proceedings is, of course, that the Employment Tribunal has in those circumstances an obligation to consider such a cost award, but a discretion as to whether actually to make one. The proper exercise of that discretion includes consideration of the party’s ability to pay and of the costs incurred specifically as a result of the unreasonable conduct, rather than of the case as a whole.
In leaping direct from dishonest evidence to costs, the EAT found that the Employment Tribunal had made an error of law. There should have been the intervening visible step of the Employment Tribunal exercising that discretion, it said. Not all lies will necessarily be sufficient to found an award of costs. The Tribunal must look at context and the nature, gravity and effect of the lie to determine the unreasonableness of the conduct. Without the “workings out”, it was impossible for the Tribunal to be seen to have done so correctly, hence the appeal.
This is not a happy decision for Tribunal litigants on either side of the room. It appears to suggest that minor lies, lies when unrepresented, or lies which are not the cause of the party losing may not even pass the test of unreasonableness, let alone justify the exercise of an adverse discretion. This hardly encourages respect for the integrity of the Tribunal process, does it?
No-one would suggest that any lie, however small, irrelevant or pointless, should necessarily lead to a costs order. The burden on the Tribunal of distinguishing good old incontrovertible dishonesty from things said through anxiety, ignorance or mistake would be far too high. However, it does not strike me as inappropriate to state as a fact, as an issue of principle and as a line in the sand to others that once deliberate dishonesty has been established, as here, the hurdle of establishing unreasonableness in the conduct of proceedings should be treated as jumped. Then the Tribunal can get on to considering in its discretion whether an award should be made and if so, of what sum. In my view, once you are found to have set out to mislead a judicial forum under oath, then the default question should be why there should not be some form of costs sanction against you, not why there should.
The EAT sent Mrs Kapoor’s case back to the same Employment Tribunal to look at the question again. In its defence, it is possible to infer from its judgment that the EAT would not be unhappy if the Tribunal now went through the right hoops and still arrived at the same award against her. We shall see soon if that message is heeded.
