Grace Nicholls
Below is a summary of the full article by Grace Nicholls of 3 Paper Buildings. The full article can be read here: https://www.3pb.co.uk/content/uploads/Proactive-assessment-of-prospects-required-at-all-stages-of-litigation-Grace-Nicholls.pdf
EAT clarifies scope of costs risk
In Huntley v Siemens Healthcare Ltd [2025] EAT 152, the Employment Appeal Tribunal confirmed that parties must assess the merits of their claims and defences throughout litigation. The tribunal does not limit this assessment to the start of proceedings.
The decision interprets Rule 74 of the Employment Tribunal Procedure Rules 2024 as allowing a costs order where a case comes to lack reasonable prospects of success at any point. This clarification strengthens the tribunal’s ability to manage weak or unsustainable claims.
A continuing duty to reassess the merits
The claimant pursued disability discrimination, victimisation, reasonable adjustments, and unfair dismissal claims. The tribunal dismissed those claims at the final hearing after raising clear concerns about the evidence and case formulation.
The respondent then sought costs for the continued pursuit of arguments that had become untenable. The EAT rejected the argument that the wording “had no reasonable prospect of success” restricts the assessment to the outset. Instead, it confirmed that parties and their advisers must review prospects on an ongoing basis as the case develops.
Practical implications for practitioners
This judgment highlights the need for active and realistic case management. Legal representatives should reassess the strength of a case whenever new evidence emerges or tribunal guidance changes the landscape.
The ruling also underlines the strategic value of focused costs applications. Applications that identify the precise moment a claim became unsustainable are more likely to succeed.
For practitioners, the message is clear. Continuous evaluation protects clients, supports efficient litigation, and reduces exposure to adverse costs.