Judge took account of wrong schedule of loss when judging proportionality

An employment tribunal judge took account of the wrong schedule of loss when ruling on the proportionality of costs she ordered against a claimant, the Employment Appeal Tribunal (EAT) has ruled.

Gosalakkal v University Hospitals of Leicester NHS Trust (COSTS – Detailed Assessment) [2019] UKEAT 0114_18_0407 concerned an unsuccessful claim by the claimant doctor, after which the employment tribunal ruled that he should pay costs in relation to aspects of his claim. The case was passed to Employment Judge Heap in Leicester, who has “a speciality in detailed assessment” and assessed the costs at £75,640, together with the further sum of £7,290 for the costs of assessment.

On proportionality, she referred to the amount of compensation which the claimant was seeking, which at one stage was in excess of £2m. Though the judge said the claimant – who represented himself before the tribunal – tried to downplay the value on assessment, “these were complex proceedings, with vast numbers of documents, where the claimant was making his position abundantly clear that, if he was to succeed, he intended to ask the tribunal to award very substantial compensation indeed”.

However, the claimant put in that schedule of loss when he was a litigant in person, while a “more moderate schedule” was put in by his lawyers when he was represented, His Honour Judge Richardson in the EAT observed.

He said the CPR 44.5(a) factor – the sums in issue in the proceedings – “requires a broad and realistic assessment to be made of what sums were really in issue”.

He explained: “In this case, although the claimant had lodged substantial schedules, his solicitors put in a properly worked schedule which claimed past loss, pension loss, a modest amount of future loss and non-pecuniary loss as well.

“In determining the sums in issue in the proceedings, the EJ ought to have referred to and had regard to this schedule. We do not say that she was bound by it; but it provided a realistic starting point for assessing what sums were really in issue in the proceedings.”

HHJ Richardson added: “We are far from saying that the EJ’s overall assessment will necessarily be affected by this point: she made entirely permissible findings about other factors which are taken into account in assessing proportionality, and she also found that the general level of fees charged by the respondent’s solicitor and counsel was eminently reasonable. But, if only £116,000 was in reality at stake, the exercise of assessing proportionality is not the same as if £2m was at stake.”

The EAT remitted the issue of proportionality to the tribunal along with the “disentanglement” of the costs to identify what was spent in relation to the aspects of the case for which costs were ordered, in relation to which it found Judge Heap had also erred.

Karen Moss (Direct Public Access) represented the appellant, Richard Powell (instructed by Browne Jacobson) the respondent.



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Costs News
Published date
11 Jul 2019

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