Rule 78 of the ET rules provides for ET’s to make a costs order of either a specified amount not exceeding £20,000 or the whole or a specified part of the receiving party’s costs, as determined by a detailed assessment by the county court or an employment judge. In Kuwait Oil Company v Al-Tarkait both parties had their applications for a cost order accepted by an ET. Where Dr Al-Tarkait was concerned, the ET noted that he had limited financial means, so it could limit any costs that he could be assessed to pay to a maximum of the compensation for his dismissal and costs awarded to him. The EAT upheld the ET’s decision and so did the Court of Appeal. Rules 78(1)(b) and 84 when read together give ET’s the ability to have regard to ability to pay as a reason for ordering a “specified part of the costs” to be limited to a maximum fixed sum and ordering that part of the costs so specified to be determined on detailed assessment subject to that maximum limit.
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