Lord Alan Sugar’s failure to recover his legal costs despite his successful defence of an Employment Tribunal claim has highlighted how difficult it is to get the losing side in a Tribunal case to foot your legal bill.

Lord Sugar was successful in his defence of the constructive dismissal claim brought by Stella English, a former winner of the BBC television show The Apprentice.  Click on the link to read our April 2013 article on this case.

Following the victory, Lord Sugar set about trying to get Stella English to pay £35,000 towards his legal bill, which had amounted to the substantial sum of £50,000.  However, he failed in his bid.  The Tribunal decided Ms English’s claim was not motivated by malice, therefore she should not have to foot Lord Sugar’s legal bill.

The position in the Employment Tribunal is unlike that in the civil courts where the losing party is often ordered to pay the legal costs incurred by the successful party.  In the Employment Tribunal an order to pay costs is the exception rather than the rule.

To succeed in an application for costs, the applicant will have to show that the other party:

1. acted vexatiously, abusively, disruptively, or otherwise unreasonably in the bringing or conducting of proceedings;
2. their claim had no reasonable prospects of success;
3. the party was in breach of an order or practice direction; or
4. a hearing was postponed on the application of the party.

The test is a hard bar to hurdle and most parties fail to prove the existence of one of the above circumstances to the satisfaction of the Tribunal.