Mrs A A Balakumar v Imperial College Healthcare NHS Trust Respondents to the wasted costs applicati — 2019

This was a reserved costs judgment following the January 2016 merits judgment that had dismissed all of the claimant's underlying claims. At the costs hearing the tribunal refused a further postponement request and rejected the claimant's case that the respondent was barred by a "drop hands" agreement from pursuing costs. It found that the November 2018 offer was time-limited, that the claimant had not accepted it, and that her later communications sought more than a simple withdrawal of the costs application.

Applying rule 76 and rule 84, and referring to authorities including Barnsley Metropolitan Borough Council v Yerrakalva, McPherson v BNP Paribas, Daleside Nursing Home Ltd v Mathew and Arrowsmith v Nottingham Trent University, the tribunal held that the claimant had conducted the proceedings unreasonably. It relied on the earlier tribunal's findings that it did not believe the claimant and that some of her evidence was "obviously not truthful", together with the later postponement applications and the incomplete account given about the proposed compromise. The respondent had initially sought around £63,000, then limited the application to £20,000, and the tribunal ordered £7,500 as a contribution to costs after considering ability to pay.

The tribunal did not finally determine the rule 80 wasted costs application against Ms Shivani Jegarajah and Mr Stephen Knight. It said there was at least a prima facie case against Ms Jegarajah because she had said it was her decision not to listen to the tapes until shortly before the hearing, with late transcription and disclosure potentially holding up the hearing. Mr Knight's role was described as less clear. The tribunal ordered disclosure of retainer documents and fee notes, subject to privilege redactions if necessary, and relisted the wasted costs application for 14 November 2019.