Mr P Lawrence v Charles Stanley & Co. Limited — 2019

This judgment concerns the respondent's application for costs against Mr Lawrence after he withdrew his disability discrimination claims. The tribunal rejected the claimant's argument that Employment Judge Humble's earlier refusal to strike out those claims created issue estoppel. It held that the earlier decision was interlocutory rather than final, that it did not amount to a positive finding that the claims had reasonable prospects of success, and that later developments, including the claimant's own concession and withdrawal, were new material in any event.

The tribunal accepted that the claimant was not acting unreasonably in continuing to pursue the disability claims until he had seen further disclosure and the outcome of the disclosure application before Employment Judge Ross on 17 January 2020. It found that the respondent had continued to provide further disclosure through September 2019 to January 2020, including some historic material, and that it was understandable that the claimant remained uncertain about whether the respondent held documents relevant to the discrimination case.

However, the tribunal held that once the claimant had decided not to pursue the disability discrimination claims, he should have informed the respondent immediately, especially with the final hearing imminent. The first indication of withdrawal appeared in paragraph 155 of the witness statement served on 24 January 2020, and formal withdrawal did not follow until 30 January 2020. The tribunal found that this late notification was unreasonable conduct for the purposes of rule 76(1)(a).

Applying the principles in McPherson, Barnsley MBC v Yerrakalva and Raggett v John Lewis plc, the tribunal made a limited costs award only for the unnecessary work caused by the delay. It rejected the respondent's claim for a percentage of overall costs, declined to award counsel's fees and the costs draftsman's fee, and allowed only 3 hours at the Manchester Central Band B rate of £192 per hour, producing a total costs order of £576. The judgment also records that the substantive claims would need to be re-listed and were not finally determined here.