19th March, 2024

Avoid being in the 1%; Wasted Costs against Representatives, a recent experience in the Employment Tribunal

There is less than a 1% chance of being awarded costs in the Employment Tribunal where the opposing a party is professionally represented (inclusive of Barrister, Solicitors and Law Centres and Trade Associations)[1]  however this does not mean it is impossible.

Rule 80 of the Employment Tribunal rules of procedure states that a costs order may be made against a representative in favour of any party where that party has incurred costs as a result of any improper, unreasonable or negligent act or omission on the part of the representative or which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay.

Costs so incurred are described as “wasted costs”.

The Court of Appeal in Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40 suggested a three stage approach when considering awarding wasted costs:

a. has the legal representative acted improperly, unreasonably, or negligently?

b. if so, did such conduct cause the applicant to incur unnecessary costs?

c. if so, is it in the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs?

How the Trial Unfolded

A 5 day substantive hearing to determine direct sex discrimination, harassment on the grounds of sex and unpaid holiday pay was due to be heard in London Central Employment Tribunal.

A case management hearing had been held identifying a list of issues and an indicative trial timetable for the Parties to adhere to. The hearing window should have allowed sufficient time for the witnesses to be heard, especially considering both parties were professionally represented by Solicitors and subsequently Barristers at the final hearing.

Yet, due to the poor state of preparation on the part of the Claimant's legal team, by the end of the first 2 days of the trial only one relatively minor witness was able to give evidence for the Respondent and the Claimant had only been asked about 10 questions. Indeed, the Tribunal was forced take out of order the witnesses due to the state of the Claimant’s legal team’s readiness.   

On the morning of Day 3, when it became apparent that the Claimant was still unable to effectively give evidence, the Tribunal of its own initiative decided to strike out the Claimant’s claim under Rule 37(1)(b) because the manner in which the proceedings had been conducted was “scandalous, unreasonable or vexatious”.

Lee Bronze acting as Counsel for the Respondent therefore applied for costs against the Claimant’s professional representatives.  A wasted costs order in excess of £3,000 was granted (not against the Claimant naturally) because of the manner in which the final hearing was conducted. The Tribunal found the behaviour on behalf of the Claimant was unreasonable as:

  1. The Claimant’s counsel did not by the first day of the hearing have a copy of the bundle.
  2. The submission on behalf of the Claimant about a witness being vulnerable or needing an interpreter interrupted the hearing rather than advanced it and should not have been used as “weapons to be deployed responsively.”
  3. The Claimant’s legal team did not effectively use the morning before the hearing began on day 3, when they were with the Claimant, to identify that the Claimant was not able to give evidence thereby preventing proactive and sensible steps being taken to deal with the continuing problems on her behalf.
  4. The Claimant’s representative was not able to provide consistent and clear statements and information to the tribunal; set out submissions; and he alluded to applications without instruction.

Comment

As a lawyer, you have control over your practice, this includes the standard that you hold yourself to and the service that you provide to those instructing you.  Even as professionals we are not immune to behaviours that can result in costs against us personally.

During pupillage, I have been continuously reminded by supervisors and Judges that preparation is key. It can and does make the difference between a win and a loss and impacts your professional reputation moving forward.  As I start my second six, this case acts as a salutary reminder that you decide how you want to continue your practice as your actions may prevent your client accessing justice.  If the case is lost on the facts or law then that is one thing; its another when your conduct or omissions deny your client a chance at a win; but when you have to pay for that loss personally, that is really something else and something which is avoidable.

Jolene Charalambous is now accepting instructions as she undertakes her practising six and was shadowing her pupil supervisor in observing this case. Please contact any of the employment clerks for details of her availability.



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