Ms. U Bhardwaj v Fda and 5 others — 2020

This reserved judgment deals with the respondents' applications for costs after the earlier tribunal chaired by Employment Judge J Tayler dismissed Ms U Bhardwaj's claims of race discrimination, victimisation and unjustifiable trade union discipline. Employment Judge Heap considered the applications under rule 76 of the 2013 Rules, applying the whole-picture approach in Yerrakalva and the related authorities cited on unreasonable conduct and no reasonable prospects.

The judge accepted that the earlier tribunal had found the central allegation about the suspension of the Section Committee to be false and made in bad faith, because the claimant had twice suggested that London officers should be suspended and then treated the resulting suspension as unlawful. That element of the case was held to have no reasonable prospect of success, but the judge still declined to make a costs order for the original proceedings.

For the remaining allegations, the judge held that they were factual disputes that the tribunal was entitled to resolve after hearing evidence, and that adverse findings on the facts did not by themselves make the claims unreasonable or misconceived. The judge placed weight on the fact that the claimant had at all material times been advised by specialist employment solicitors and counsel, that the advice given to her insurers assessed the claim as having good prospects, and that this was substantial mitigation against a costs order.

The respondents' applications for costs arising from the original tribunal proceedings were therefore refused. The judge also rejected the recusal application, applying the Porter v Magill fair-minded and informed observer test with reference to Locabail and Ansar, and refused costs on that issue as well as on the alleged disclosure breach.

A limited costs order was made only in relation to the wasted hearing time on 4 and 5 February 2020. The judge held that the claimant acted unreasonably by introducing a new privilege-based point and disclosing a solicitors' email to her insurers on the morning of the reading day, which caused the hearing to be adjourned; those costs are to be assessed if not agreed.