The EAT has discharged a wasted costs order made against a firm of solicitors.
During a tribunal case, the tribunal found that the "voluminous documentation" showed conclusively that the employee's case was "unsustainable", and that some of her allegations were "wholly unfounded and unsupported".
The tribunal held that any competent adviser would have been bound to point out to the Claimant, after she had been cross-examined, that her case was bound to fail - but that her solicitor did not do so. Therefore, the tribunal held, her solicitor should be liable for subsequently incurred wasted costs.
The EAT discharged the wasted costs order, holding that the tribunal had failed to consider whether the solicitor had "failed in his duty to the court" (in accordance with Ridehalgh v Horsefield). It also noted the difficulty inherent in wasted costs order, which usually entails the waiver of legal professional privilege as to the advice given. Finally, it noted that the tribunal had failed to consider causation, i.e. if the solicitor had advised the Claimant to withdraw her claim, would she have kept going anyway?
Mitchells v Funkwerk Information Technologies