Mrs. A. Lukasik v North West Anglia NHS Foundation Trust — 2021

This was a paper determination of the respondent's application for costs after the claimant withdrew the proceedings on 3 September 2020. The respondent relied on Rule 76(1)(a), arguing that the claimant and her representative had acted unreasonably in bringing and conducting the case, and that the claimant had no reasonable prospect of success because the claims appeared to have been presented out of time.

The tribunal refused the application. It held that the respondent had not adequately identified the specific conduct said to justify a costs order, and it did not accept that the claimant acted unreasonably by withdrawing the claim the day before the preliminary hearing. The tribunal accepted that the withdrawal had been made on advice and found that, although late, it was not vexatious, abusive, disruptive or otherwise unreasonable.

The tribunal also rejected the argument that the claims had no reasonable prospect of success. It noted that lateness questions are fact-sensitive, that the tribunal would have had to consider both the 'not reasonably practicable' test and the 'just and equitable' test, and that it had not seen the evidence on those issues. It also recorded that the respondent accepted the claimant was disabled at all material times by reason of a psychiatric/neurological disorder, which was a factor likely to be relevant to the lateness analysis.