Mr Anderson & others Mr Nicholson & Others Mr Bolam & Others Mr Henderson & Others Mr Smart Mr Shilling & Others v Tyne and Wear Passenger Transport Executive t/a Nexus (‘Nexus’) Heard — 2021

This judgment concerned only the respondent's application for costs and did not determine the merits of the underlying claims or the claimants' amendment application. The background was an application to amend six claim forms, followed by a notice of hearing dated 7 August 2021 listing a preliminary hearing for 22 October 2021 and stating that, if two hours was not long enough, the parties should write to the Tribunal as soon as possible. On 18 October 2021, less than seven days before the hearing, the claimants asked for the hearing to be extended or postponed, and the hearing was then postponed to 11 March 2022.

Employment Judge Sweeney held that rule 76(1)(c) was engaged because the hearing had been postponed on the claimants' application made less than seven days before it was due to begin. Applying Yerrakalva v Barnsley Metropolitan Council and considering the totality of the circumstances, the judge found that the claimants' solicitors had acted unreasonably in leaving the application until 18 October 2021. There was no explanation for why the issue had only been considered then, despite the earlier notice that any difficulty with the two-hour listing should be raised promptly.

The tribunal accepted that the litigation was complex and that the respondent was entitled to instruct senior counsel, but it did not accept that the respondent should recover its full brief fee. It held that much of the preparation for the postponed hearing had not been wasted, notwithstanding the nearly five-month delay before relisting, and therefore awarded 50% of Mr Reade QC's brief fee. The amount ordered was £3,250 plus VAT.