Mere suspicion that a representative was acting for profit was not enough for imposing wasted costs
This was despite unnaceptable behaviour of the representative, a solicitor
Jackson v Cambridgeshire County Council & Ors (Practice and Procedure : Costs)  UKEAT 0402_09_0806
Mr JUSTICE UNDERHILL president of the EAT has delivered his judgment in Jackson v Cambridgeshire County Council deciding that the tribunal was wrong to make a wasted costs order as it did not properly address the Appellant’s case that he was not acting in pursuit of profit within the meaning of rule 48 (4).
The power to award wasted costs is given by rule 48 of the Employment Tribunal Rules of Procedure:
The EAT rejected the appellant's argument that a finding of fact under rule 48 should only be made on the criminal standard of proof but did however accept that suspicion as to the representative acting for profit was not enough (para. 18).
The tribunal's argument that the Appellant’s putting "maximum pressure upon the Respondents … to induce financial settlement” was “only consistent with some kind of conditional fee arrangement” was rejected by the EAT. It could just as well be interpreted as evidence of acting pro bono.
The EAT reminded itself to avoid a hyper-critical approach to the tribunal's reasoning but thought the tribunal should have accepted that because of the family relationship of the claimant and the representative he might be expected to be acting pro bono despite other problems with his evidence before the tribunal such as alleged untruthfulness. If the tribunal had not believed the representative regarding his pro bono status then it should have asked for evidence before making its decision.
The EAT found that the Appellant was not acting for profit and overturned the wasted costs order against him whilst regretting that the rules did not allow for this when as in this case, the representative has not behaved properly in conducting the case.
And this is where the judges are with respect wrong. Without the protection for representatives working pro bono, representatives working freely would be even harder to find than is the case at present. A rare case of misbehaviour should not result in over reaction. No one is expecting judges to work for nothing, they are very well paid. And yet nobody has ever argued that judges who fall short such as Mr Bathurst Norman who recently delivered a biased summing up to a jury should have to pay for his mistake (his summing up in effect instructed the jury to acquit the defendants. He was formally rebuked for his bias).Although the Court of Appeal in Ridehalgh ruled that extensive litigation about wasted costs is deprecated, fairness is important. The EAT recognises that a representative needs time to make his defence especially where issues are not straightforward or where time is short. This can mean that the costs application will be postponed.
Other cases mentioned: Mitchells v Funkwork Information Technologies York Ltd( UKEAT 0541_07_0804 ), Ratcliffe Duce and Gammer v Binns ( UKEAT  0100_08_2304 when applying rule 48 tribunals apply the relevant principles of which the authorities are Ridehalgh v Horsefield  and Medcalf v Mardell .
|Transcript of the judgement:- Jackson v Cambridgeshire County Council & Ors (Practice and Procedure : Costs)  UKEAT 0402_09_0806||
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