Leathes Prior successful in Employment Appeal Tribunal (EAT) Judgment
Leathes Prior's Employment team has been successful in having Partner Dan Chapman's actions, in obtaining on behalf of their client a wasted costs order against the opposing firm of solicitors in Employment Tribunal proceedings, upheld by the Employment Appeal Tribunal.
The EAT (Underhill P) has handed down its decision in
Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd
which is now authority for the propositions that in a wasted costs hearing, the procedure adopted should be as summary as is consistent with fairness; that it might be permissible for a party and their representative to be cross-examined; and parties may make submissions.
The Claimant, having not been advised by his solicitors in a timeous manner that there were no prospects of settlement, withdrew his claim, but his solicitors did not communicate this until shortly before the hearing. Leathes Prior sought on behalf of their client and won a wasted costs order against the Claimant's solicitors for (a) not advising him properly, and (b) delay in communicating the withdrawal. At the oral costs hearing with privilege waived, the Claimant and his solicitor were cross-examined by Head of Employment Dan Chapman, although some evidence from the case file was excluded by the tribunal for late disclosure.
The Claimant's solicitors unsuccessfully appealed against the wasted costs order against them on various bases.
The EAT distinguished this situation from a previous EAT decision on wasted costs orders - (Ratcliffe Duce and Gammer v Binns UKEAT/100/08) - and set out guidance on the conduct of wasted costs hearings. The EAT suggested that cross-examination of a representative would generally be inappropriate, disproportionate and/or unnecessary, but it may be fair and proportionate where a representative is no longer acting, privilege has been waived and a hearing fixed, and there are differing accounts of central facts to resolve. There was also no reason why parties could not make submissions to the tribunal.