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Mirikwe v Wilson & Co Solicitors & Ors - Costs, non-attendance and the paying-party's ability to pay [2011] EAT

When making an order for costs an employment tribunal is fully entitled to take into account the non-attendance of the paying party when deciding whether to have regard to their ability to pay. The non-attendance may, in itself, be unreasonable behaviour, but the tribunal may also be justified in concluding that, without being able to question the paying party, it is simply impossible to have any regard to means. 

Case worker Ms Mirikwe brought employment tribunal claims for race and sex discrimination, but these were all dismissed. Wilson & Co, having also won on a small counter-claim, then sought an order for costs, and that afternoon (as the parties were told would happen), the tribunal considered that application. Although still in the building Ms Mirikwe did not attend. Her father represented her. The tribunal ordered that she pay costs, to be assessed in the County Court on an indemnity basis.

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