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No automatic costs award for false evidence
In Kapoor v Governing Body of Barnhill Community High School, the EAT has, astonishingly, overturned a Tribunal decision to award costs against the unsuccessful Claimant on the basis that she had unreasonably conducted her case in not telling the truth in evidence. All her claims of race discrimination, victimisation and harassment were dismissed after a 5 day hearing and the Tribunal awarded £8,900 of the Respondent’s costs to be paid by the Claimant on the basis of her unreasonable conduct in falsely presenting her case. The Tribunal held that conducting a case by not telling the truth is, in its view, acting unreasonably.
When the Claimant appealed to the EAT, the EAT held that the Tribunal had not directed itself correctly by saying that, without anything else, conducting a case by given false evidence is conducting it unreasonably. It acknowledged that there were other factors which the Tribunal could have probably taken into account, such as the fact that the Claimant’s evidence was not worthy of belief; that any evidence that she gave could not be trusted unless corroborated by cogent evidence; and in the Tribunal’s view, she had falsified documents. The EAT held that these could only be relevant if the Tribunal looked at the exercise of its discretion as a matter of legal principle and considered the case as a whole. One of the factors within this was that the school had previously unsuccessfully attempted to have the claims struck out.
The appeal was allowed and the claim remitted to the same Tribunal. However it beggars belief that someone who was found to be lying under oath, can effectively be allowed to get away with it. Hopefully the remission to the Tribunal will allow it to phrase its reasons for the costs award in a way which will meet the approval of the EAT.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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