An employment tribunal was entitled to make a wasted costs order against a claimant’s representative even though a similar application against the claimant himself had been dropped, a High Court judge has ruled.
In Sykes v Wright (Practice and Procedure: Costs)  UKEAT 0270_15_1402, the claimant failed in his employment tribunal claim. The respondent applied for wasted costs against both the claimant and his representative. After reaching an agreement with the claimant, the respondent no longer pursued its application against him.
However, it did continue its action against his representative and the tribunal made an order for £2,000. This related to the representative’s conduct of the hearing and particularly not being properly prepared for the start of it, because the claimant had expected the case to settle.
In the Employment Appeal Tribunal, Mr Justice Singh said: “As the tribunal observed… that attitude on the part of a lay client does not exonerate a professional representative from a need to be fully and effectively prepared for any hearing. As they put it, he should have his house in order by the start of a hearing, should know that a hearing is effective until a claim is settled and should prepare enough to be ready to start if it does not.”
The original tribunal also thought that, during the hearing, there had been element of “buying preparation time” and what it regarded as “diversionary tactics”.
The tribunal found: “In our view, time wasted [was] through the fault of the representative, whose behaviour was at times exasperating and certainly time-wasting… [The conduct amounted to] improper conduct (if tactical to buy time) or to conduct lacking the competence to be expected of a representative.”
The representative argued that the tribunal lacked jurisdiction to make a wasted costs order at all in light of the compromise that the respondent reached with the claimant.
He submitted that there were two applications for costs made on essentially the same grounds and that once one was compromised, there was no legal basis on which the second could be pursued. He relied upon the doctrine of res judicata and principles akin it, namely the doctrine in Henderson v Henderson  3 Hare 100.
However, Singh J rejected this, saying the doctrines applied only when the two matters involved the same parties.
Further, while the wasted costs application against the claimant had been made under rule 76 of the Employment Tribunals Rules, rule 80 was cited when making the application against the representative. Singh J said the issues that arose under the two rules were not the same, “and therefore the doctrine of issue estoppel and anything akin to it cannot apply”.
The judge added: “The doctrine in Henderson v Henderson applied so as to preclude a party from raising in subsequent proceedings matters that were not adjudicated upon in earlier proceedings, or, by way of analogy, the subject of compromise, but could and should have been raised earlier.
“In the present case, by way of contrast… the issue of wasted costs was raised at the appropriate time and indeed at the same time as the issue of costs against the claimant himself… The fact that one was subsequently compromised does not in any way, in my judgment, preclude pursuit of the other.”
He also dismissed two other grounds of appeal on how the tribunal applied the test for wasted costs and whether it gave the respondent adequate time to respond to certain written submissions.
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