Wasted Costs Arising From Poorly Prepared CMD

[Thanks to Dr John McMullen of Durham University for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Wilsons Solicitors v Johnson , which is is an example of the proposition that an employment judge may make a wasted costs order against a party's representative under rule 48 of the Employment Tribunal rules arising from the conduct of a telephone Case Management Discussion (CMD).

The solicitors, Wilsons, acted for two employees who raised a wide variety of claims in their ET1.

The pleadings were obscure and lacked detail. Amended particulars were filed before the CMD but they were "decidedly sketchy". The employment judge at the CMD opined they were "all over the place". Nor were they clarified at the CMD itself. The tribunal decided the respondents incurred wasted costs as a result of the claimants' solicitors' unreasonable and negligent acts and omissions. The CMD (the purpose of which had been to achieve a final definition of the issues) had been abortive. These deficiencies were held to be the fault of the solicitors and not because of the instructions of their clients. Rather, they were failures of analysis and accurate formulation.

Underhill P agreed and dismissed the solicitors' appeal.

Addendum 6/6/2011: I have been asked by Wilsons Solicitors LLP in Salisbury, Wiltshire, to make it clear that the firm of solicicitors criticised in this case was another firm trading under the same name (there are several such firms trading as 'Wilsons Solicitors'), based elsewhere in the UK. I am happy to make that clear.