The problem with this case is that the tribunal chose not to expressly say that the claimant had lied. The appeal was granted because it was said that it followed from the findings of fact that the claimant had lied, even though the tribunal had exercised its discretion not to award costs.

I agree that costs should be awarded in certain cases but I do not think that it is useful to distinguish between serious and non-serious forms of lying. As tribunal costs are arguably punitive, a better solution is to say that a higher standard of proof should apply and costs should only be awarded when the tribunal has a high level of confidence that there has been a lie and it feels costs are warranted.

A deliberate and cynical lie under oath at Tribunal is, let us not forget, perjury and a serious criminal offence.

I don’t think there is any room for doubt that a deliberate and cynical lie is unreasonable conduct. Unreasonable conduct can be punished by a costs award. There really is nothing new here.

What is new is that someone has taken the time to spell this out, whereas normally it may get forgotten.

The bit of dark law, which makes the whole matter more stomachable on a day-to-day basis (and consistent with the authorities that say costs awards are exceptional) is this: Employment Judges don’t usually call a lie a lie, unless forced to do so. In fact, they avoid calling people liars whenever possible. Nor do they call unreasonable conduct as it is, unless forced to do so.

I would therefore suggest that, in order for a lie to: a) be called for what it is; and b) result in a costs award against the liar; it would generally take a pretty blatant, brazen and cynical lie – the kind of lie that, when seen in practice, you yourself would agree should have a costs award against it, no matter how rare costs awards are in Employment Tribunals, and no matter how much you would want to keep costs awards rare.

I therefore expect that, if Employment Judges are sensible in how they deal with this authority, no new legal principle will emerge and costs awards will remain rare.

In terms of this setting a bad precedent, I think that you are over exaggerating the effect of its impact because (1) parties do not lie on crucial matters most of the time – I would estimate it at about 25%!, and (2) those lies are not invariably cynical and deliberate – I would estimate it at say 33.3%. If you multiply those percentages, you get 8%. Now, those lies will only get picked up, say 60% of the time (I think that’s pretty complementary to the ETS), that leaves costs in about 5% of cases (I realise this figure does not factor in the mistakes that tribunals will make in erroneously finding that someone has deliberately lied on a crucial matter).

I further think that this case will not have the impact suggested because Employment Judges are famously slow in changing their habits, unless really forced to do so, and it leaves them, in my view, enough wriggle room to resist any application from an over eager representative.

Personally, I don’t think that it is a bad thing if there were costs awarded in 5% of cases where parties have been found to have flagrantly lied. When advising your client about costs, you simply inform them that if they are found to have deliberately lied to the tribunal that they will have costs awarded against them. Those telling the truth will not be put off and many liars will be deterred from lying.

If you retort that some truth telling Claimants will be put off from bringing their Claim, I would beg to differ. What difference would a perspective litigant think between being told that (1) costs are only awarded where it is found that you have been unreasonable, vexatious or your Claim is misconceived, or (2) costs are only awarded where it is found that you have been unreasonable, vexatious or your Claim is misconceived, for example, where you have been found to have deliberately lied to the tribunal?

Furthermore, there would also be the knock on benefit of the fact that some lying Respondents would be more likely to settle before a hearing with the threat of costs hanging over them if they are caught lying.