Casqueiro v Barclays Bank plc

An Employment Tribunal making a wasted-costs order under rule 48 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 must specify the amount to be paid. Rule 48 does not confer power to refer assessment of wasted costs to the County Court, unlike the express provision for ordinary costs in rule 41(1)(c).

The Tribunal must apply the three-stage test in Ridehalgh v Horsefield: improper, unreasonable or negligent conduct; causation of unnecessary costs; and whether it is just to order compensation for all or part of those costs. It must identify the costs caused by the conduct and determine a specific amount. A finding that a representative acted in pursuit of profit may be inferred from the evidence, including demands for payment.

The appellant represented a claimant in employment claims against Barclays Bank plc. The Employment Tribunal dismissed the claims as out of time and made a wasted-costs order against the appellant, referring assessment of the amount to the County Court. The order was based on allegedly abusive and vexatious correspondence and demands for substantial payment.

The appellant challenged the order on the grounds that the Employment Tribunal lacked power to refer wasted costs for County Court assessment and had failed to apply the correct test, identify the costs caused by his conduct, and consider whether a particular award was just. He also challenged the finding that he acted in pursuit of profit.

1. Appeal allowed in part. The wasted-costs order was set aside and the application was remitted to a different Employment Judge.
2. Under rule 48(7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, the Tribunal or Employment Judge must specify in the order the amount to be disallowed or paid. Rule 48 contains no power to refer wasted costs to the County Court for assessment. The express power in rule 41(1)(c) for ordinary costs orders reinforces that conclusion (para. 10).
3. The Tribunal must apply the three questions identified in Ridehalgh v Horsefield [1994] Ch 205: whether the representative acted improperly, unreasonably or negligently; whether that conduct caused unnecessary costs; and whether it is just, in all the circumstances, to order compensation for all or part of the relevant costs (para. 11).
4. The Employment Judge had not sufficiently identified which costs, or which part of the costs schedule, were caused by the unreasonable conduct. Nor had the Judge made clear the considerations supporting an award of a particular amount. The remitted Tribunal was therefore required to identify the wasted costs and decide whether an award of that amount was just (paras. 12–14, 21–24).
5. The finding that the appellant acted in pursuit of profit was not vitiated by the use of a double negative. The unchallenged inference from his demands for payment, together with the claim for representative costs in the ET1, was sufficient. Jackson v Cambridgeshire County Council UKEAT/0402/09/505 was factually distinguishable and established no principle directly applicable to this case (paras. 15–20).
6. The remitted Employment Judge could consider whether ability to pay was relevant, including under rule 41(2), or as part of the third Ridehalgh question. The issue was left open because it had not been argued (para. 23).

• Employment Appeal Tribunal: Appeal allowed on the issues concerning County Court assessment and failure to apply the wasted-costs test adequately. The order was set aside and the application remitted to a different Employment Judge.
• Employment Tribunal: The claims were dismissed as out of time. A wasted-costs order was made against the claimant’s representative, with assessment referred to the County Court.