The High Court has made no order as to costs in proceedings brought by Maria Nesbitt against her employer, Kefron Limited, after the company’s appeal officer overturned her dismissal. The court was not satisfied that the appeal decision resulted from Ms Nesbitt’s proceedings seeking injunctive relief.
Mr Justice Brian O’Moore delivered the judgment on 10 November 2023. The issue before him was Ms Nesbitt’s application for the costs of proceedings that both sides agreed had become moot. She sought costs for the period from 17 January to 17 April 2023. The proceedings had issued and been served on 9 March.
Ms Nesbitt had been dismissed following a disciplinary process, with termination set for 14 February. She appealed and her solicitors raised concerns about fair procedures, sought documents and asked for assurances about how the appeal would be conducted. Several appeal dates were arranged or proposed; Ms Nesbitt did not attend two scheduled hearings. A preliminary procedural hearing took place on 20 February.
On 7 March, managing director Paul Kearns said he had enough information to conclude the appeal, while offering a further meeting. He declined a full rehearing and the requested cross-examination of 11 people. Two days later, Ms Nesbitt issued proceedings seeking undertakings that Kefron would not determine her appeal and would continue paying her pending the court hearing.
On 15 March, Mr Kearns upheld the appeal except for matters Ms Nesbitt had admitted. He concluded her conduct did not amount to gross misconduct or gross indecent behaviour and that dismissal was not warranted. He said a further meeting would consider any sanction and her return to work. Ms Nesbitt later received a first written warning and returned to work on 2 May.
In seeking costs, Ms Nesbitt relied on a Court of Appeal decision concerning costs incurred where proceedings led to a concession. Mr Justice O’Moore found he could not conclude that Mr Kearns’s decision resulted from the injunction proceedings. He noted that the appeal had been delayed by several factors, including requests for assurances and documents and Ms Nesbitt’s non-attendance at a scheduled hearing. He also said the proceedings sought to stop the appeal process, while the reversal of dismissal came through that process.
The judge said the proceedings were effectively at an end when the appeal decision was made on 15 March, and that maintaining them after that date did not justify a costs claim. He did not determine the underlying merits of Ms Nesbitt’s action. Having refused her costs, he made no order as to costs, rather than awarding costs to Kefron.