Mr F Walton v DHL Parcel UK Limited INTERIM — 2022

This judgment was on the respondent's application for costs after the claimant withdrew his race discrimination claim, described in the reasons as a claim of race discrimination, specifically victimisation, during a preliminary hearing on whether he was in employment for the purposes of section 83(2)(a) of the Equality Act 2010. The claimant withdrew on the morning of the second day, before any respondent evidence was heard. The respondent sought costs against the claimant under Rule 76 and wasted costs against the claimant's representatives under Rule 80. It had previously raised costs warnings and, in the costs proceedings, accepted a cap of £20,000 on the amount sought; the quantum was not decided in this judgment.

The tribunal found that the claimant had acted unreasonably for Rule 76(1)(a) purposes in relation to specific disclosure. It held that documents concerning the claimant's arrangements with his drivers were relevant to whether he was employed under a contract personally to do work, and that he should have disclosed them under the case management order. The tribunal described the refusal to provide the requested documents as unreasonable, obstructive and provocative, and said the respondent should not have been forced to apply for specific disclosure.

The tribunal also held that the claim had no reasonable prospect of success under Rule 76(1)(b). Applying an objective assessment and relying on the binding EAT decision in UK Mail Ltd v Creasey, it concluded that the contractual position between the claimant's company and the respondent meant the claim had no reasonable prospect at the time it was lodged, even though the claimant had received earlier counsel's advice suggesting his prospects were reasonable. By contrast, the wasted costs application against Silverdale Solicitors failed because the tribunal was not satisfied that the threshold of improper, unreasonable or negligent conduct was met. It accepted that both sides had contributed to the late disclosure and late preparation issues, and said it could not attribute the disruption solely to the claimant's representatives. The Rule 76 costs order against the claimant was therefore allowed in principle, but the amount was left to a later hearing after consideration of ability to pay under Rule 84.