(in chambers) Mr David Gibb v By: Mr Iain Burke – Solicitor Peter Vardy Limited — 2017

This was an expenses hearing, not a merits hearing. The respondents sought an order for £666.46 after the claimant withdrew his tribunal claim on 30 May 2017, the day before the listed final hearing on 31 May 2017. The judge treated the application as an ordinary expenses application under Rule 76 of the Employment Tribunals Rules of Procedure 2013, rather than a true wasted costs application against the claimant's solicitor, although he also considered the wasted costs test in the alternative.

The tribunal rejected the suggestion that the claimant acted unreasonably by withdrawing at that stage. It accepted the claimant's solicitor's explanation that the claimant pursued the matter to the best of his ability, then took advice, weighed the potential cost of continuing, and decided to withdraw. The judge held that this was a sensible litigation decision and noted that withdrawal itself is not, without more, unreasonable conduct. He also noted that the respondents had not sought strike out or a deposit order after the ET1 was served, and that the tribunal had not determined the merits of the underlying claim.

The tribunal also held that there was no proper basis for a wasted costs order against the claimant's solicitor, because nothing in the application showed improper, unreasonable or negligent conduct by the representative. In addition, the judge recorded that the respondents had not produced vouching documents for the travel and other disbursements claimed, and said that if any award had been made it would have been limited to the preparation and skeleton argument item, not the travel and accommodation costs linked to the respondents' choice of English solicitors. The application was refused in full.