Ms A. Mohammed v Migrant Helpline Ltd — 2020

Ms A Mohammed had been offered an outreach worker post by Migrant Helpline Ltd in April 2019. The Respondent withdrew the offer when it discovered that she had refugee status and did not hold a passport. The pleaded case was direct and/or indirect race discrimination arising from that decision.

The substantive claim did not proceed to a merits hearing. On 5 May 2021, the day before the relisted final hearing, the Claimant withdrew the claim in full, and a judgment sent on 12 May 2021 dismissed it on withdrawal. The Respondent then applied for costs, relying on the late withdrawal and stating that it had paid a fixed fee of £6,200 for representation, with usual hourly charges of £175 plus VAT.

Employment Judge Massarella applied the costs jurisdiction under rule 76 and the authorities cited in the reasons, including the requirement to look at the Claimant's conduct overall and the principle that costs are compensatory, not punitive. The Judge found that the withdrawal was prompted by a last-minute change of advice on the merits, that there was nothing to suggest the change of view was not genuine, and that the Claimant had not acted unreasonably in withdrawing when told the case was weaker than she had thought.

The Judge also noted that the case had been treated by both sides as uncertain: the Respondent had not pursued a strike-out application, had withdrawn from judicial mediation, and had rejected settlement, which indicated that the issues were not straightforward. The application for costs was refused because the threshold for an award was not crossed. In the alternative, the Judge said no costs order would have been made in any event because the Respondent had not shown any additional loss caused by the lateness of the withdrawal, given the fixed-fee basis of its legal spend.