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) [2011] UKEAT 0402_09_0806

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• Suspicion alone is insufficient when deciding a representative was working for profit
• 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 president was wrong to opine that representatives on a pro bono basis should ever have to pay costs. Not without reason do the rules forbid this.

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:

1. A tribunal or Employment Judge may make a wasted costs order against a party's representative.
2. In a wasted costs order the tribunal or Employment Judge may, " disallow, or order the representative of a party to meet the whole or part of any wasted costs of any party, including an order that the representative repay to his client any costs which have already been paid"
3. “Wasted costs” means any costs incurred by a party:— (a) as a result of any improper, unreasonable or negligent act or omission on the part of any representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the tribunal considers it unreasonable to expect that party to pay.
4. In this rule “representative” means a party's legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to those proceedings. A person is considered to be acting in pursuit of profit if he is acting on a conditional fee arrangement.
5. ...
6. Before making a wasted costs order, the tribunal or Employment Judge shall give the representative a reasonable opportunity to make oral or written representations as to reasons why such an order should not be made. The tribunal or Employment Judge may also have regard to the representative's ability to pay when considering whether it shall make a wasted costs order or how much that order should be.

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).

Other cases mentioned: Mitchells v Funkwork Information Technologies York Ltd( UKEAT 0541_07_0804 ), Ratcliffe Duce and Gammer v Binns ( UKEAT [2008] 0100_08_2304 when applying rule 48 tribunals apply the relevant principles of which the authorities are Ridehalgh v Horsefield [1994] and Medcalf v Mardell [2003].

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