Mr L Thornton v Hercberg International Limited — 2024

This is a reserved judgment on a costs application made by the respondent following the April 2024 final hearing. The judgment recites that, at that final hearing, the claimant had pursued four complaints (unfair dismissal, wrongful dismissal, unpaid commission, and holiday pay) and was successful only on the holiday pay claim, which was awarded at £1,038.46. The tribunal had found that the claimant committed gross misconduct in claiming expenses for private vehicle use, that dismissal fell within the reasonable range of responses, and that any procedural unfairness was cured by the appeal process; the wrongful dismissal claim failed because the gross misconduct amounted to a repudiatory breach. The commission claim failed because commission was earned on sale rather than on placement of orders.

On the costs application itself, the respondent sought a contribution of up to £20,000, arguing that the claimant had acted unreasonably (including by refusing a £10,000 offer and maintaining a settlement position around £65,000 against a claim valued at approximately £150,000) and that the unsuccessful claims had no reasonable prospect of success. The judge found that two Rule 76 gateways were opened: the commission pay claim had no reasonable prospect of success, and the claimant had acted unreasonably in continuing to pursue that part of the claim. The judge did not find the unfair or wrongful dismissal claims to have had no reasonable prospect of success, and did not find the claimant's conduct in relation to a DSAR to have been unreasonable.

Exercising discretion, the tribunal declined to make a costs order. The judge noted that of the three substantive claims the claimant brought, one was successful, one was properly brought though unsuccessful, and only one should not have been pursued, and that there was no further aggravating conduct. The respondent's costs application was therefore refused and dismissed.