B Gurney v M Randall & Ors

A wasted costs order requires more than deficient professional service or the pursuit of an ultimately unsuccessful claim. The tribunal must apply the three-stage inquiry into impugned conduct, causation of unnecessary costs, and whether an order is just. In addition, conduct described as improper, unreasonable or negligent must be akin to an abuse of the tribunal process, involving a breach of duty to the tribunal.

An Employment Tribunal need only state and apply the relevant legal principles; it need not reproduce every part of a cited authority. An appellate court will not overturn the tribunal's evaluative findings absent a proper basis for perversity.

The claimant had brought employment-related claims following the termination of a long-standing cleaning arrangement. The Employment Tribunal held at a preliminary hearing that she was genuinely self-employed and therefore that it lacked jurisdiction over her claims.

The respondents then sought costs against the claimant and wasted costs against her direct-access barrister. The Tribunal identified shortcomings in the barrister's service, including the failure to particularise an age-discrimination complaint and to explain settlement offers adequately. It nevertheless rejected the wasted costs application because the statutory jurisdiction was not engaged.

Three respondents appealed. The central issue was whether the Tribunal had misdirected itself, or reached a perverse conclusion, in refusing wasted costs.

1. The appeals were dismissed. The Employment Tribunal had not erred in refusing a wasted costs order.

2. The applicable jurisdiction was rule 80 of the Employment Tribunal Rules 2013. The three-stage inquiry stated in Ridehalgh requires the tribunal to decide whether the representative acted improperly, unreasonably or negligently; whether that conduct caused unnecessary costs; and whether it is just to award all or part of those costs.

3. The EAT confirmed that, in this context, deficient conduct alone does not engage the jurisdiction. There must also be conduct akin to an abuse of process, amounting to a breach of the representative's duty to the court or tribunal. That requirement applies even where there is evidence that the representative failed to advise that a claim had no reasonable prospects of success.

4. The Tribunal was entitled to find that the barrister's failures were deficiencies in service but did not amount to conduct akin to abuse of process. Its findings that he had not acted improperly or unreasonably, and that the high threshold for perversity was not met, could not properly be disturbed.

5. The Tribunal was not required to quote the entirety of the passages in Ridehalgh. It was sufficient that it accurately summarised and applied the relevant law. The appellants also could not introduce on appeal professional-conduct points which had not been specifically advanced before the Tribunal.

• Employment Appeal Tribunal: Appeals dismissed; the refusal of wasted costs was upheld.
• Employment Tribunal: Employment Judge A.M.S. Green dismissed the applications for costs and wasted costs in a judgment sent to the parties on 1 March 2023. At an earlier preliminary hearing, the Tribunal held that the claimant was genuinely self-employed and lacked jurisdiction to determine her substantive claims.