Claimant v Taylor v Arcis Biotechnology Ltd and Arcis Biotechnology Holdings Ltd — 2021

Employment Judge Phil Allen decided this paper application after Ms Barnes and Ms Taylor had withdrawn their substantive claims before preliminary hearings. The respondents sought costs and wasted costs orders in both cases, saying the claims were hopeless or vexatious and that withdrawal followed a disclosure request; they claimed £9,600 inclusive of VAT in each case.

On Ms Barnes, the tribunal found that her claim for unpaid wages and unpaid holiday pay appeared to have a reasonable prospect of success, particularly the holiday pay element. It held that the possibility of High Court proceedings against her had no genuine relevance to the merits of her tribunal claim or to whether it was vexatious, and it accepted that the claim was withdrawn because of concern about ongoing costs. The tribunal found the proceedings were not vexatious, abusive, disruptive or otherwise unreasonable.

On Ms Taylor, the tribunal said the claims were more complex and that, because they were withdrawn early, it could not genuinely assess whether they had reasonable prospects of success. It nevertheless said that, if what she had asserted in the claim form were supported by evidence, the claims would have had a reasonable prospect of success, and that the holiday pay claim certainly had a reasonable prospect. The tribunal found no evidence that threatened High Court proceedings were the reason she brought the claim, and it held that the proceedings were withdrawn at an early stage before significant costs were incurred.

Applying rule 76, rule 80, rule 84 and Yerrakalva v Barnsley MBC, the tribunal refused both costs orders and both wasted costs orders. It found no improper, unreasonable or negligent act or omission by the claimants' representatives, and said that if it had needed to consider amount it would have had to look carefully at the costs sought, particularly in Ms Barnes' case.