Daniels & Others v Department for Business Innovation and Skills

Daniels & Others v Department for Business Innovation and Skills Case No: 1400487/2010 &Others

Unsuccessful application for wasted costs in the Employment Tribunal following an adjourned hearing on TUPE. Employment Judge follows the guidance in Ridehalgh v Horsefield (1994]Ch 205

Following a hearing regarding claims made by seven claimants under TUPE on 6th and 7th May 2014, at the Bristol Employment Tribunal, at which the claimants succeeded, an application was made by the Treasury Solicitors, who were acting on behalf of the first respondents, for wasted costs under rules 80 - 82 of the Employment Tribunal Rules of Procedure 2013.

The hearing on liability had originally been scheduled for 17th and 18th September 2013, and all seven claimants were represented by counsel. However, just prior to the hearing, counsel for the claimants was informed by one of the claimants that he wished to pursue claims against other respondents in addition to the Secretary of State and contend that there had been a TUPE transfer but the remaining six claimants only wished to pursue claims against the Secretary of State contending that had not been a TUPE transfer. Counsel acting on behalf of the Claimants informed the Employment Tribunal that she would have to seek an adjournment due to a conflict issue. Employment Judge Mulvaney granted the adjournment and counsel instructed by the Treasury Solicitor indicated that he would be seeking an order for wasted costs.

The case was then heard on 6th and 7th May 2014, when solicitors for the claimants instructed two counsel, one for Mr Holton who wished to contend that there had been a TU PE transfer and another for the remaining six claimants who felt there had not been a TU PE transfer.

The application for wasted costs was made on 15th August 2016 by letter, to the Employment Tribunal. Solicitors acting for the Claimants responded by letter and the application was heard at the Bristol Employment Tribunal, before Employment Judge Mulvaney on 20th February 2017.

Following submissions from counsel for both parties, Employment Judge Mulvaney rejected the application for wasted costs. Counsel instructed by the Treasury Solicitor stated that the test in rule 80 (1) (a) had been made out as the adjournment resulted from the unreasonable or negligent conduct of the solicitors acting on behalf of the Claimants in that they:

  • failed to take instructions from their clients
  • failed to take their client's further instructions
  • failed to properly instruct counsel

Counsel for the Claimants stated that her instructing solicitors did not behave unreasonably, that they had confirmed in their response to the application that Mr Holton had changed his mind on the day ofthe hearing on 17th September 2014, despite previously having spoken to his solicitor and having signed a witness statement, and that the solicitors conduct throughout could not amount to unreasonable or negligent as set out in rule 80 (1)(a).

The case of Ridehalgh v Horsefield (1994]Ch 205 was cited and in her decision the Employment Judge applied the three stage test to determine whether to make a wasted costs order ;

  • has the representative of whom the complaint is made acted improperly, unreasonably or negligently?
  • if so, did such conduct cause the party applying for the order to incur unnecessary costs?
  • if so, is it in all the circumstances just to order the representative to compensate that

party for the whole or any part of the relevant costs?

The judge found that the solicitors for the claimants did take instructions from their clients. Individual witness statements were taken and filed with the tribunal. The solicitor's letter of response confirmed that they had spoken to their counsel about the hearing on 17th September 2013 and she had confirmed that the conflict arose on the morning of the hearing. The judge further stated that this was exactly what she herself had stated in her Order dated 18th September 2013, following the adjourned hearing and she accepted that this was in fact what occurred. She further stated that it was unfortunate that it was on the day of the hearing, but concluded that it was not caused by the solicitors and was not their fault. She stated that in her opinion, the solicitors had not acted unreasonably and that the application for wasted costs failed.

Leslie Millin represented the six successful Claimants at the liability hearing and was instructed for the wasted costs hearing by OH Parsons.