Ms J Harrington v Keoghs LLP — 2023

This judgment concerned only the respondent Keoghs LLP's application for costs following the case management preliminary hearing on 14 November 2023. The tribunal had previously decided, in an ex tempore judgment, that the claimant's without prejudice correspondence should not be included in the final hearing bundle because the without prejudice label had been correctly applied and there was no unambiguous impropriety by the respondent.

The respondent applied for costs under rule 77, relying on rule 76(1)(a) and (b). It argued that the claimant's attempt to rely on the without prejudice correspondence had no reasonable prospect of success and that the claimant and her representatives had acted unreasonably in the preparation of the List of Issues. The claimant said the no reasonable prospect of success ground could not apply to an application made during proceedings, relying on Warburton v The Chief Constable of Northamptonshire Police [2022], and denied unreasonable conduct.

The tribunal accepted that the claimant's different List of Issues arose because of her further and better particulars, and that the List of Issues had to include the issues arising from those particulars. It said disagreement between the parties about how issues should be presented was to be expected during litigation, and found that the claimant's representative did not object to the respondent's representative making amendments to the claimant's list. It held that the claimant and/or her representative did not act unreasonably in seeking to rely on the claimant's version.

Applying Warburton, the tribunal held that rule 76(1)(b) did not apply because it only concerns a claim or response with no reasonable prospect of success, not an application made within proceedings. The tribunal therefore found that none of the rule 76 grounds were made out and refused the respondent's application for a costs order.