Robinson & Anor v Hall Gregory Recruitment Ltd

An Employment Tribunal must undertake the separate statutory stage of deciding whether a costs order is appropriate, after finding unreasonable conduct. It must fairly address matters relevant to that discretion, including a young claimant’s means, representation and opportunity to give evidence.

A wasted costs order founded on negligent advice requires a causal finding that proper advice would have caused the client to abandon the claim and thereby avoided the receiving party’s additional costs. A representative must have a fair opportunity to address evidence about privileged advice before negligence or responsibility for initiating the claim is found.

The claimant, aged 17, brought employment claims including an allegation that workplace stress had caused her miscarriage. Most claims were dismissed, apart from a small notice-pay award. The Watford Employment Tribunal then ordered her to pay costs of £5,025 and her solicitor, Mr Ojo, to pay wasted costs of £10,050.

Both appealed. The claimant challenged the Tribunal’s exercise of its costs discretion and findings made in her absence. Mr Ojo challenged the basis for findings of negligent advice and that he had initiated and pursued the miscarriage claim. The central issues were whether the Tribunal had properly exercised the costs and wasted-costs jurisdictions and whether the necessary findings had been fairly and sufficiently made.

1. Both appeals were allowed. The costs applications were remitted to the same Employment Tribunal for fresh consideration.

2. Under rule 40 of the 2004 Rules of Procedure, unreasonable conduct triggers consideration of a costs order but does not itself resolve whether an order is appropriate. The Tribunal omitted that distinct discretionary stage. The claimant’s age, the finding that she may not have been properly advised, and the apparent conflict between her and her solicitors were potentially material.

3. The Tribunal should not have made findings about the claimant’s means without giving her an opportunity to provide evidence and submissions. Its findings that she had advanced a dishonest case and had waived privilege, leading to unreasonable pursuit of the miscarriage claim, also required reconsideration. At the appeal she unequivocally waived privilege, but her account of the advice was likely to differ from the statement prepared for her.

4. A wasted costs order may exceptionally rest on negligent advice to a representative’s own client. The court applied the causation requirement discussed in Medcalf v Mardell [2002] UKHL 27: it had to be established that proper advice would have caused the claimant to abandon the claim and would have prevented the respondent’s additional costs.

5. The negligence finding could not stand because the asserted waiver of privilege was unclear when made, and Mr Ojo had not been invited to give evidence of his advice. The Tribunal also made no finding that the claimant would have abandoned the claim if properly advised. Its finding that Mr Ojo was the driving force behind the claim rested on the same defective basis.

6. The Tribunal’s findings that Mr Ojo was acting for profit and had means to meet an order were open to it and were not disturbed. Generally, existing factual findings were to stand, except those in paragraphs 59.1–59.3 and 60.2–60.3 of the Tribunal’s reasons.

• Employment Appeal Tribunal: allowed both appeals and remitted the costs applications to the same Employment Tribunal for reconsideration.
• Employment Tribunal, Watford: by a majority decision sent to the parties on 10 July 2013, dismissed most substantive claims and subsequently made costs and wasted costs orders. No citation was stated.