Wasted costs application dismissed. Any failure to advise a client regarding prospects of success would have to be akin to an abuse of process for wasted costs to succeed.

The background of the case related to the claimant who met the respondent in 1990 and was offered some cleaning work. No documentation was ever received but the engagement was terminated in April 2020. The claimant was referred on, through her Union, to a barrister – Mr Sprack. Mr Sprack represented the claimant through direct access and the claimant waived privilege in terms of their communications through the proceedings for the purpose of this hearing. There were various claims, but there was one relating to age discrimination.

Mr Sprack in oral evidence stated he did not think it was worth pursuing but this changed before the ET1 was submitted as the claimant was concerned that she had been replaced by a younger person.  The age discrimination claim was not particularised and no mention of it in the particulars of claim.  However, no application was made to strike it out; instead a strike out was sought on other grounds relating to the whole claim.  Mr Sprack, through the proceedings, was asked to particularise the age discrimination claim but failed to do so.  An offer was made to the claimant but refused. The Tribunal went onto to find that she was self-employed.

This led to an application for costs and wasted costs against Mr Sprack. The claim being made that Mr Sprack was negligent in his advice to the claims, the pursuit of an age discrimination claim, failing to advise on the costs risks and failing to advise on the benefits of the offer.  This was rejected by the Tribunal but appealed by the respondents to the EAT.

The EAT examined the aspects relating to wasted costs.  The rules outline that wasted costs may be made as a result of improper, unreasonable or negligent acts or omissions on the part of the representative. Further, examining the decision in Ridehalgh v Horsefield it is then whether that improper action/omission led to unnecessary costs being incurred and if it was just to order the representative to compensate the appellant.  The EAT dismissed the appeals citing that the Tribunal had outlined the test and that there was no requirement to quote the whole paragraph from the judgement of Ridehalgh to demonstrate that it did so.  Further, the EAT found that the Tribunal’s decision was not perverse. A new argument was being made that was not made before the Tribunal and it was not allowed to proceed. The EAT further stated that there would have to be some conduct which is akin to an abuse of process and that threshold was not met. Accordingly, the appeal was dismissed.

Cases relating to representative conduct and wasted costs can be intriguing as it looks into the role of the representatives rather than the relationship between the employer and employee.  In this case, the arguments being made largely surrounded on an age discrimination claim which was not particularised and not backed up fully by the representative. That being said, it did not meet the threshold for being improper conduct or for the advice relating to prospects of success of the claim as a whole as meeting the threshold of being an abuse of process.

You can read the case in full here.