The Court of Appeal has upheld, in principle, the ET and EAT's decision in McPherson v BNP Paribas, although it has varied the amount of costs payable by Mr McPherson.
Mr McPherson withdrew his ET claim about two weeks before the hearing. He cited ill-health, although there were doubts about the extent of the ill-health. He had failed to comply with a number of tribunal orders in the run-up to the hearing. The tribunal, and the EAT, held that the late withdrawal was (against the background of breach of tribunal orders) unreasonable conduct. He was ordered to pay all of BNP Paribas's costs. See my bulletin of 27/8/03 for a summary of the EAT's decision.
The Court of Appeal (Mummery LJ) held that:
"it would be legally erroneous if, acting on a misconceived analogy with the CPR, tribunals took the line that it was unreasonable conduct for employment tribunal claimants to withdraw claims and that they should accordingly be made liable to pay all the costs of the proceedings. It would be unfortunate if claimants were deterred from dropping claims by the prospect of an order for costs on withdrawal, which might well not be made against them if they fought on to a full hearing and failed. As Miss McCafferty, appearing for Mr McPherson, pointed out, withdrawal could lead to a saving of costs. Also, as Thorpe LJ observed during argument, notice of withdrawal might in some cases be the dawn of sanity and the tribunal should not adopt a practice on costs, which would deter applicants from making sensible litigation decisions.
"On the other side, I agree with Mr Tatton-Brown, appearing for BNP Paribas, that tribunals should not follow a practice on costs, which might encourage speculative claims, by allowing applicants to start cases and to pursue them down to the last week or two before the hearing in the hope of receiving an offer to settle, and then, failing an offer, dropping the case without any risk of a costs sanction.
"The solution lies in the proper construction and sensible application of rule 14. The crucial question is whether, in all the circumstances of the case, the claimant withdrawing the claim has conducted the proceedings unreasonably. It is not whether the withdrawal of the claim is in itself unreasonable..."
On the facts, the Court of Appeal agreed that Mr McPherson had acted unreasonably, but allowed his appeal to the extent that is substituted a smaller period of time in connection with which costs would be payable (effectively excluding the first months of the litigation, when Mr McPherson had not been conducting the litigation unreasonably).