EAT Practice and Procedure: Costs – Wasted costs
A Schedule of Loss was served which grossly over-inflated the losses claimed. In pre-trial negotiations, the Claimant and Respondents narrowed their differences, but although the Respondents were prepared to pay a sum which appeared to the Employment Tribunal to be overly generous, the Claimant wanted more than double that sum, and thereafter the claim proceeded to a hearing at which the Claimant lost. The Tribunal ordered that he pay a sum by way of costs (just short of andpound;5,000), and then pursued his solicitors for wasted costs for having advanced such a misleading and inflated schedule and for their client’s refusal to settle for a reasonable sum. They were constrained by legal professional privilege from revealing their instructions from and advice to the Claimant. The Judge nonetheless determined the case without any sufficient indication that she was applying the principles set out in the leading House of Lords authority of Medcalf v Weatherill, as applicable in these circumstances, and speculated impermissibly as to whether the solicitors had given misleading advice to the Claimant when this was not the only realistic possibility, thereby failing to apply the ‘benefit of doubt’ principle appropriately: a Tribunal has to be satisfied not that on balance there is doubt which favours the professional lawyer concerned, but that there is no room at all for doubt.
On the separate question of costs claimed by the successful Appellants under Rule 34A(2A) an award of andpound;400 was made, the further fee of andpound;1,200 payable on permission being granted to proceed to a Full Hearing having been unnecessary: given the position the parties were then taking as to compromise, the appeal should not have proceeded further.
Langstaff P J
[2015] UKEAT 0356 – 14 – 1504
Bailii
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.547612