Wasted Costs against Legal Representatives

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.

Should an Employment Judge make a wasted costs order against solicitors, on an inferred assumption the unrealistically high Schedule of Loss they produced gave their Claimant client unrealistic expectations?

No, held the EAT in Hafiz & Haque Solicitors v Mullick.

Mr Mullick's claims were dismissed by the employment tribunal as ill conceived. The Respondent applied for wasted costs under r.80 against Mr Mullick's solicitors (i.e. as an 'improper, unreasonable or neglect act or omission'), arguing they submitted a 'grossly exaggerated schedule of loss' which raised Mr Mullick's expectations preventing acceptance of numerous offers to settle. The Employment Judge agreed.

On appeal, the EAT, applying Medcalf v Weatherill and allowing the appeal, held tribunals should be slow to conclude representatives have insufficient material to submit particular pleadings in cases where legal professional privilege prevents revelation of instructions. Employment Judges may make wasted costs order if satisfied (a) there is an improper, unreasonable or negligent act or omission; (b) the costs were incurred as a result of it and (c) the case is one the tribunal could say with confidence there was no room for doubt. The EAT also considered if (a) and (c) were satisfied the judge should still assess the order was fair