• Robert Spicer

Wasted costs in Employment Tribunals

Employment law advisers should be well aware of the risk of wasted costs orders in the employment tribunal, and should take note of the following recent case.

Case Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd [2012] ICR 305, EAT

Statute reference Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Sched. 1, r.48

Facts A claimant entered into a contingency fee agreement with solicitors for claims against his employer. The claimant was liable for disbursements, which included the fee for a barrister if the matter went to a hearing. Proceedings were started and the matter could not be settled. The claimant was unable to pay the solicitor, who did not tell the other side that the claim would be withdrawn until a few days before the hearing. The employer’s solicitor applied for a wasted costs order. At an oral hearing, the employment judge refused permission to the claimant’s solicitor to introduce various attendance notes and letters. An order was made for costs wasted from the date when it became clear that the matter would not settle. The claimant’s solicitor appealed to the EAT.

Decision 1. The appeal would be dismissed.

2. The decision of the employment judge not to allow the admission of documents so late in the day was within his discretion, given that an order for disclosure had been made three months previously.

3. The conduct found by the employment judge amounted to a breach of duty to the tribunal. It was plainly an abuse of process for a claim to be proceeded with which the claimant no longer wished to pursue.

4. On the findings made by the judge, who had preferred the claimant’s evidence concerning the advice and instructions, it was the solicitor’s fault that it had occurred.

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