Tribunal Rejects Employer’s Request to Dismiss Disability Case

OUTCOME: [NAME]: 3320853/2021 3302864/2022

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EMPLOYMENT TRIBUNALS

Claimant

Respondent

Mr [APPELLANT] v [APPELLANT] at: Norwich

On: 31 May 2023

Before: Employment Judge Postle

Appearances For the Claimants:

[redacted]

For the Respondent: [redacted] following written submissions by both parties’ Representatives

1. The [NAME] to Strike Out does not succeed.

2. The issue of costs should be revisited at the conclusion of the Full Merits Hearing.

REASONS

1. This matter came before Employment Judge Postle on 9 December 2022, originally to determine whether the Claimant had a disability within the meaning of s.6 of the Equality Act 2010. The Claimant having pleaded a number of neuro-diverse conditions. Prior to that Hearing, the Respondents had on 17 November 2022, in writing, made an Application for Strike Out pursuant to Rule 37(1)(b) and Rule 37(1)(c) and further an Application for Costs under Rule 76.

2. At the Hearing on 9 December 2022, some concern was expressed by [NAME] that the Claimant might, or would, fall within the definition of a vulnerable witness and thus whether it was possible to proceed with the [NAME] for a number of various reasons advanced by [NAME].

[NAME]: 3320853/2021 3302864/2022

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3. As a result of that, a short adjournment was provided for the [NAME] Counsel to discuss the situation with the Claimant.

4. Counsel for the Claimant, having discussed the matter with the Claimant, wanted to proceed with the original aim of that Hearing; namely to determine the issue of disability.

5. Employment Judge Postle reminded [NAME] Counsel that given the [NAME], it would clearly be appropriate to deal with that first, having regard to the overriding objective, albeit to give [COUNSEL] Counsel an opportunity to respond and perhaps the matter should proceed by way of written submissions.

6. Employment Judge Postle took the view in order to ensure that the parties were on an equal footing, having regard to the overriding objective, that the [NAME] should be vacated that day and proceed by way of written submission.

7. Various Orders were made for written submissions, particularly the [NAME] to be served by 20 January 2023. The Claimant to respond by 10 February 2023. The Respondent had the right to reply on the Law by 17 February 2023.

8. Written submissions were sent to [NAME] on behalf of the Claimant, around 10 February 2023, consisting of 37 pages.

9. The [NAME] submissions were sent to the [NAME] around 20 January 2023, consisting of 174 pages. The Respondents further sent in a response to the [NAME] submissions around 17 February 2023.

10. Unfortunately, the papers did not find their way to Employment Judge Postle until late April, from the [NAME]. Hence the delay.

11. The Claimant had relied on a number of Authorities, particularly:

 [NAME]. v [COMPANY]. (Commission for Racial Equality) [2001] UKHL/14;

 479 [NAME]. v Sunderland City Council & Ors. UKEAT/349/08;

 [COMPANY]. v [COMPANY]. [2003] EWCA Civ.901;

 529 [COMPANY] v [COMPANY]. [1981] Court of Appeal; and

 [COMPANY]. v [COMPANY]. [2014] EWHC 1955.

[NAME]: 3320853/2021 3302864/2022

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12. The Respondents have also submitted a number of Authorities, particularly:

 Blockbuster Entertainment Ltd. v James [2006] IRLR 630;

 HM Prison Service v Dolby [2003] IRLR 124;

 [NAME] v London Borough of Southwark [2002] EWCA Civ.223;

 De Keyser Ltd. v Wilson [2001] IRLR 324;

 [NAME] v [NAME] [2001] IRLR 331;

 [NAME] v Southwark London Borough Council [2008] IRLR 873;

 [NAME] v [NAME]) [COMPANY]. EA 2022 ICR 327;

 [NAME] v Academies Enterprise Trust [2015] IRLR 2008;

 [COMPANY]. v Greater London Council & Anr. [1988] 1ALLER;

 South Shropshire District Council v [NAME] CA 341; and

 Mr [NAME] v [COMPANY]. UKEAT/02/12/17.

13. Employment Judge Postle is grateful to both parties’ Counsel for their extensive written representations and indeed extensive Authorities provided.

14. In summary, the [NAME] is that the [NAME] first claim presented on 29 September 2021, was deficient in that it failed to identify with any clarity the [NAME] disability or disabilities relied upon. Particularly the manner and extent to which the disability / disabilities were relied upon.

15. The Respondent entered their Response on 2 December 2021 indicating their intention to defend the [NAME] claim. Indeed, paragraph 5 of the Response set out information which was missing from the [NAME] pleaded [NAME]. In particular paragraphs 22b, 25b, 28b and 33 further identifying disability particularly missing from each of the alleged claims made.

16. The second claim was presented against Mr [NAME] and [COMPANY]. Those claims have now been dismissed on withdrawal by the Claimant with dismissal Judgments being sent to the parties on 15 July 2022.

17. Instead of the Claimant providing the information that was missing, it does appear that the Claimant failed or refused to provide the information

[NAME]: 3320853/2021 3302864/2022

4 requested. Which meant the issue of disability could not be resolved without a Hearing.

18. On 3 March 2022, Employment Judge M Warren made a [NAME] Management Order (Order 1) requiring the Claimant to provide precisely the information which the Respondent previously identified being missing from the claim. At the same time, Employment Judge M Warren Ordered the Claimant disclose all documents relevant to the issue of disability in his possession, including his [NAME] and other medical notes. The Claimant was required to comply with Order 1 by no later than 31 March 2022.

19. The Claimant failed to comply with Order 1. The disability information provided was inconclusive and his Specialist Records were so redacted to the point that they were largely pointless in disclosing them. At the same time the Claimant refused to provide his [NAME]. Rather oddly at that stage the [NAME] threatened the Respondent, through its Representative, with a Wasted Costs Order merely for seeking the information which Tribunal had Ordered.

20. There then appears to have been protracted correspondence between the parties’ Representatives which seemed to achieve very little in terms of the [APPELLANT] setting out his [NAME] regarding his disability and medical evidence in support. Employment Judge Postle therefore made a further [NAME] Management Order (Order 2) once again requiring the Claimant to provide information which had been Ordered by Employment Judge M Warren pursuant to the Order 1. The Claimant was required to comply with Order 2 by no later than 12 August 2022.

21. Oddly and surprisingly, the Claimant continued to fail and refused to comply with either Order 1 or 2.

22. There was then further protracted correspondence and the matter came before Employment Judge Craft as a Telephone Private Preliminary Hearing held on 4 October 2022. Employment Judge Craft, at that Hearing, deemed it appropriate to require the Claimant to provide the information and disclose his medical records which had been the subject of Orders 1 and 2. Therefore Employment Judge Craft Ordered the Claimant, yet again, to provide the information and disclosure (Order 3) making it clear to the Claimant that he must now comply with these Orders if he wished to continue with his claim. The Claimant was Ordered to comply with Order 3 by no later than 1 November 2022.

23. On 28 October 2022, the [NAME] wrote to the Respondent requesting further time for the Claimant to comply with Order 3 on the grounds that the [NAME] medical records had not yet been received from his [NAME]. The Respondents agreed to this extension.

[NAME]: 3320853/2021 3302864/2022

5 24. On 7 November 2022, the [NAME] wrote to the Respondent indicating that the [NAME] medical records were still not available and that for reasons best known to them, commented,

“Getting them is going to be difficult and potentially time consuming”.

25. Thereby disregarding the Tribunal’s Orders.

Apparently that correspondence from the [NAME] went on to comment,

“…sees no benefit in further enquiries or deliberation”

and suggests that the Respondent should just concede the issue of disability without any medical evidence, Specialist, [NAME] or otherwise for the Respondents to base such a decision on.

26. Clearly the Claimant breached Employment Judge Craft’s Orders and remained in breach of those Orders made by Employment Judge M Warren and Employment Judge Postle.

27. It is for that reason the Respondents made their Application on 17 November 2022 to Strike Out the [NAME] claim together with a claim for Costs. Not surprisingly the Claimant resists the Application.

28. The [NAME] position is that the Claimant has been represented by a Solicitor throughout these proceedings and that the [NAME] conduct of the proceedings, whether his or his Solicitor, has been unreasonable. [NAME] explores that in some detail at paragraph 39(a)(i) and paragraph 40 of his written submissions. The second submission by the Respondents is that the [NAME] has also acted unreasonably in making references to ‘without prejudice’ communications between the parties. That is set out in more detail at paragraphs 42 – 51.

29. The Respondent summarised the [NAME] conduct in the proceedings at paragraphs 133 onwards, suggesting amongst other things that the [NAME] conduct through his Solicitor has been entirely and thoroughly unreasonable. Furthermore, it has been scandalous and suggested that the [NAME] Solicitor has breached no less than eight different Provisions of the Solicitor’s Regulatory Authority Code of Conduct and sets those out at paragraphs 135a-h.

30. Further, the complete and contumelious failure to comply with: Order 1, being Employment Judge M Warren’s Order; Order 2, being Employment Judge Postle’s Order; and Order3, being Employment Judge Craft’s Order. The Claimant continued to refuse to provide copies of any useful medical evidence that would assist the Tribunal, the Claimant and the Respondent in resolving the issue of the [NAME] disability.

31. [NAME] concludes in accepting it is a discretion to Strike Out. The following specific points are made:

[NAME]: 3320853/2021 3302864/2022

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a. The Claimant was taking up a considerable amount of Tribunal time and resources already;

b. The Claimant has fragrantly breached the Orders of three separate Employment Judges and his claim has still barely got off the ground;

c. The Claimant has had not one, but two second chances. Employment Judge Postle gave him a second chance after breaching Employment Judge M Warren’s Order and Employment Judge Craft gave him a second chance after breaching Employment Judge Postle’s Order;

d. The [NAME] conduct has been wilful, deliberate and persistent, which places him in a no mercy position regardless of whether a fair trial is still possible ([APPELLANT]: riddle);

e. The Claimant has additionally shown contempt for the Tribunal’s process and Orders. His conduct has long since met the definition of contumelious; and

f. There is absolutely no genuine contrition expressed at any point, either by the Claimant or his Solicitors. There is no reason for the Tribunal to think that they would not continue to breach Orders in the future.

32. [NAME] concludes in asking the Tribunal to consider factors under the Legal Practice Rules 3.9, reaffirming why the discretion should be exercised in this [NAME], namely:

a. In the interests of the administration of justice;

b. Whether the Application for Relief has been made promptly;

c. Whether the failure to comply was intentional;

d. Whether there is a good explanation for the failure;

e. The extent to which the party in default has complied with other Rules, Practice, Directions, Court Orders and any other pre-action protocol;

f. Whether the failure to comply was caused by the party or its legal representative;

g. Whether the trial date or the likely date can still be met if Relief is granted;

h. The effect to which the failure to comply had on each party; and

i. The effect which the granting of Relief would have on each party.

33. The [APPELLANT] response seems to accept there has been failure to provide any sufficient medical evidence in support of the [NAME] various disabilities. They go on to say that the Claimant has personally signed three Permission Forms to have his [NAME] sent, starting in

[NAME]: 3320853/2021 3302864/2022

7 March 2022 and made attempts alongside those of his Solicitors chasing the Records. In support of the failure and delay in disclosure, they say this has been caused by a number of factors, namely:

a. The moving of house in May 2022;

b. Delay in [NAME] being sent to a new GP;

c. His [NAME] being short of staff;

d. Further change in [NAME];

e. Shortage of staff in the [NAME];

f. Records ultimately being sent late, albeit redacted, the reason for the redacting of information is said to be about the [APPELLANT] wife and children’s medical conditions; and

g. The [APPELLANT] asserting that the information sent is sufficient to establish the existence of the [APPELLANT] conditions amounting cumulatively to a disability.

34. They go on to suggest that the [APPELLANT] own view is that whilst each of the conditions would meet the definition of disability cumulatively for the purposes of this claim, the ADHD and Autism have overlapping traits and the [APPELLANT] has been diagnosed with a combined type of ADHD. Apparently, therefore there is no clear defining line between the [NAME].

35. The [NAME] submissions then go on to really recite and summarise the Authorities provided. Further, it argues there has been no breach in the Code of Conduct in the way the matter has been conducted by the [NAME].

36. The [APPELLANT] asserts that the pleadings are entirely adequate except in not of the quality that could reasonably or fairly be described as unreasonable conduct.

37. Any suggestion that privilege has been waived is denied.

38. The [APPELLANT] further asserts that they complied with the [NAME] Management Orders supplying information that would have enabled the Respondent to make a concession on disability.

39. The [APPELLANT] concludes that the discretion has not been engaged and that a Strike Out would be disproportionate, that the Respondent has caused significant exhaustion of time and resource through the pursuant of weak and sometimes repetitive criticisms of the Claimant.

[NAME]: 3320853/2021 3302864/2022

8 40. It accepts to the extent if there have been breaches they have been largely caused by the delay of the NHS, for which the Claimant is not to blame.

41. That the [NAME] categorisation of the [APPELLANT] conduct is not reflected in the facts of the [NAME]. The Claimant furnished the Respondent with significant quantities of evidence, asked them to concede disability and what they say was contritional litigation conduct followed by lengthy Application in circumstances where a concession on disability is now being offered by the Respondents.

42. The Claimant is extremely sorry that the parties are in the position that they find themselves, not least of all for the time and cost involved. The Claimant cannot accept that any of the issues raised by the Respondent to the extent that any or a few of them have some genuine, albeit limited, merit to render a Strike Out justified or proportionate. The Claimant repeats the sole major issue in this [NAME] has been the delay in the provision of [NAME], which is not the fault of the Claimant or his legal advisors and does not warrant a Strike Out and is by its nature not a breach that can happen again.

43. The Claimant responds in respect of the Civil Procedure Rules 3.9 argument. In particular that the [NAME] litigation conduct file cannot conceivably be said to be beyond reproach. None of the Orders made in these proceedings at any time criticised the Claimant.

44. The ultimate concession by the Respondent that the Claimant does have a disability is not the only point in the [NAME] favour and therefore Strike Out is entirely disproportionate. The majority of the criticisms levelled by the [NAME] are without significant merit. The breaches admitted by the Claimant are not his fault and not the cause of significant prejudice to the Respondent and the delays are not one in which could form the basis of a Strike Out under Rule 37.

45. The Claimant concludes Strike Out would be wholly unjustifiable.

The Law

46. The power to Strike Out arises under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, particularly Rule 37 which states,

37(1) At any stage of the proceedings either on its own initiative or on the Application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds –

a. that it is scandalous or vexatious or has no reasonable prospect of success;

b. that the manner in which the proceedings have been conducted by or on behalf of the Claimant or the Respondent (as the [NAME] may be) has been scandalous, unreasonable or vexatious;

[NAME]: 3320853/2021 3302864/2022

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c. for non-compliance of any of the Rules or with an Order of the Tribunal;

d. …

e. …

(2) A claim or response may not be struck out unless the [NAME] has been given an opportunity to make representations either in writing or if requested by the party at a Hearing.

47. An Employment Tribunal’s exercise of any of its powers under the Tribunal Rules is subject to the “overriding objective” which is laid out in Rule 2, which is to deal with cases fairly and justly. This objective includes, amongst other things ensuring that the parties are on an equal footing so far as is practical. It is recognised that this objective can require the Tribunal to take into account a party’s vulnerability, and to adjust its procedure to ensure that the party is given a fair opportunity to [RESPONDENT] his or her [NAME].

48. The word ‘scandalous’ in the context of Rule 37(1)(a) means irrelevant and abusive of the other side. It is not to be given its colloquial meaning of signifying something that is shocking.

49. A vexatious claim or defence has been described as one that is not pursued with the expectation of success, but to harass the other side or out of some improper motive.

50. Under Rule 37(1)(b), the terms ‘scandalous’ and ‘vexatious’ are used in much the same way as they are under Rule 37(1)(a) above.

51. For a Tribunal to Strike Out for unreasonable conduct, it has to be satisfied either that the conduct involved is deliberate and persistent disregard of required procedural steps, or has made a fair trial impossible. In either [NAME] the striking out must be a proportionate response.

52. It is not simply the Representative’s conduct that needs to be characterised as scandalous, but the way in which he or she is conducting the proceedings on behalf of his or her client. The Tribunal must therefore consider,

a. the way in which the proceedings have been conducted; and b. how far that is contributable to the party the Representative is acting for and see the significance of the scandalous conduct.

53. The Tribunal repeats, ‘scandalous’ in the context of this Rule is not shocking, but rather it means either the misuse of legal process in order to vilify others, or the giving of gratuitous insult to the Tribunal in the course of such proceedings.

[NAME]: 3320853/2021 3302864/2022

10 54. Where the conduct of the proceedings is categorised as scandalous, a Tribunal must go on to consider whether striking out is a proportionate response.

Conclusions

55. This is a [NAME] that the Tribunal have thought long and hard about in reaching its decision.

56. There is the accepted vulnerability potentially of the Claimant. It was noted quite properly by Mr [RESPONDENT], Counsel for the Respondent, at the Hearing in December. It is also worthy of note that some of the correspondence generated by the [NAME] is far from helpful in achieving the overriding objective in moving the [NAME] forward.

57. The Tribunal have also considered that during and following the recent pandemic, there have been difficulties by parties in obtaining either medical evidence or their [NAME]. The Claimant has, on a number of occasions, breached the Tribunal’s Orders and the [NAME] is reminded Orders made by the Tribunal are made to be complied with, indeed, to move the [NAME] forward.

58. Whether the [NAME] conduct has genuinely been wilful, deliberate and persistent, it is difficult to conclude given the [NAME] apparent vulnerability.

59. In considering whether to exercise my discretion to Strike Out, I have been minded of the [NAME] vulnerability, once again having regard to the overriding objective. Is it generally in the interests of justice to Strike Out? The Tribunal is not convinced, although it has come very close.

60. It is not clear whether the failure to provide medical GP notes was intentional by the Claimant or if difficulties arose when moving house, a delay by his GP and changes in his [NAME], giving the Claimant the benefit of doubt.

61. Through the [COUNSEL] Counsel, he has now expressed the fact that he is sorry that the parties find themselves in the position they are. It is fair to say that the major issue, not helped by the [NAME], is the delay in producing the [NAME] and their breach of the Tribunal’s Orders.

62. However, whether that in itself justifies a Strike Out, on balance the Tribunal is not persuaded, though [NAME] ought be aware they have come very close in the Tribunal’s view to being Struck Out.

63. The Tribunal repeats, on this occasion it feels that it would be not in the interests of justice, not achieving the overriding objective and

[NAME]: 3320853/2021 3302864/2022

11 disproportionate to strike out. However, the [NAME] be on notice that any further breaches in bringing the matter to a Hearing, by that the Tribunal means failure to comply with an Order, will lead to the claim being Struck Out and a Costs Order being made.

64. Insofar as costs are concerned, the Tribunal are of the view that these should be revisited pending the outcome of the Full Merits Hearing.

_____________________________

Employment Judge Postle

Date: 16 August 2023

Sent to the parties on: 22 August 2023

For the Tribunal Office.

[NAME]: 3320853/2021; 3302864/2022.

1

EMPLOYMENT TRIBUNALS

Claimant

Respondent

Mr [APPELLANT] v [APPELLANT] at: Norwich

Tribunal Reading Day: 3 February 2026 Hearing and Judgment: 4 and 5 February 2026

Before: Employment Judge Tynan

Appearances

For the Claimant: [redacted]

For the Respondent: [redacted] For [NAME]: Mr [COUNSEL], Counsel

JUDGMENT on Wasted Costs Applications having been delivered orally on 5 February 2026 and written reasons having been requested by [NAME] on 6 February 2026 in accordance with Rule 60(4) of the Employment Tribunal Rules of Procedure 2024, the following reasons are provided:

REASONS

1. The Claimant and the Respondent seek wasted costs orders against [APPELLANT], the solicitors who represented the Claimant in his claims against the Respondent. Their applications were made on the same day, 29 July 2024, some months after the Claimant withdrew his claims. 2. I have been provided with a 2116-page bundle in connection with the wasted costs applications.

Rules and principles applicable to wasted costs applications 3. Tribunals are empowered, either on their own initiative or on the application of any party, to make a wasted costs order against a party's representative. Rule 78 of the 2024 Procedure Rules provides:

[NAME]: 3320853/2021; 3302864/2022.

2 78. When a wasted costs order may be made (1) A wasted costs order is an order against a representative in favour of any party where that party has incurred wasted costs. (2) The Tribunal may make a wasted costs order in favour of a party, whether or not that party is represented, and may also make such an order in favour of a representative’s own client. … (5) “Wasted costs” means costs incurred—

(a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative, or

(b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay.

4. The procedure for making a wasted costs application is set out in Rule 80. I shall come back to the [NAME] of whether the applications in this [NAME] are apt for determination.

5. As Mr [RESPONDENT] sets out in his skeleton argument, the leading general guidance is contained in the judgment of the Court of Appeal in Ridehalgh v Horsefield [1994] 3 All ER 848, approved by the House of Lords in Medcalf v Mardell [2002] 3 All ER 721). When considering whether to make a wasted costs order, a three-stage test should be applied: (1) Has the legal representative about whom complaint is made acted improperly, unreasonably or negligently? (2) If so, did such conduct cause the applicant to incur unnecessary costs? (3) If so, is it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs? Mr [RESPONDENT] expands upon these matters in paragraphs 11(a) to (e) of his skeleton argument.

6. At paragraph 17 of his skeleton argument, Mr [RESPONDENT] summarises [NAME]’s position as comprising of four propositions which he describes as misconceived or simply wrong. Amongst other things, he says that any suggestion that Employment Judge Postle’s 31 May 2023 judgment on the [NAME] strike-out application can be impugned and revisited is “an impudent assertion which is also fundamentally misconceived”. Having drawn the parties’ attention to Jacobs J’s judgment in King & Ors. v [NAME]: 3320853/2021; 3302864/2022.

3 & Ors. [2023] EWHC 453 (Comm), specifically to what he said at paragraphs 81 to 90, Mr [RESPONDENT] no longer maintains that particular submission. I think it pertinent to include what [NAME] J said at paragraph 83: “ … There is no authority which suggests that it is an abuse of process for a barrister or solicitor, in the context of a wasted costs application, to challenge aspects of the decision which has led to the application. The scope for such challenge is likely in most cases to be somewhat limited, because the prior decision (here of a High Court judge)– even if not binding as res judicata – would be persuasive authority as a matter of precedent. However, I see no reason why a barrister or solicitor should not be able to defend a wasted costs application by saying that the judge's view of a particular point was erroneous. I consider that this could be a permissible part of a defence to a [NAME] where the applicant is saying (to use the terminology of [APPELLANT]) that no reasonably competent legal adviser could have considered that there were any prospects of success or could have pursued the [NAME]. A solicitor or barrister would in my view be entitled to say that one reason why a competent legal adviser could have considered that the [NAME] had a prospect of success was because, notwithstanding the judge's view ultimately expressed in the judgment, the argument advanced was sound. Generally speaking, however, legal advisers will not have to go so far; since their [NAME] will usually be that the particular point rejected by the judge was fairly arguable, even though the judge decided against it.”

The Claimant and [NAME] applications 7. The Respondent seeks, in the first instance, the entirety of its costs in defending the claims from the point at which it received notice of the first claim on 11 November 2021, up to the date that both claims were withdrawn. The particulars in support of its application are relatively brief, at five pages, though they pray in aid lengthier written submissions that were made in support of the [NAME] 2022 application to strike out the claims (the submissions are at pages 16 to 50 of the bundle). Those submissions are, in turn, supplemented by Mr [RESPONDENT]’s 10-page skeleton argument and a costs schedule and [APPELLANT] schedule.

8. The [NAME] substantive application is in the form of a detailed written statement which runs to some 53 pages in total. It was supplemented on 4 February 2026 with an 8-page secondary statement which, for different reasons, was not objected to by the Respondent or [APPELLANT] [NAME].

9. The Claimant waived legal privilege when he submitted his wasted costs application. The bundle includes extensive documents from [NAME]’s [NAME] file, including file notes of advice given and copies of emails passing between the Claimant and the individuals at the [NAME] who

[NAME]: 3320853/2021; 3302864/2022.

4 had conduct of his claims, particularly [APPELLANT] [NAME] and [APPELLANT]. The Claimant seeks recovery of one hundred per cent of the costs he paid to [NAME] [NAME] during Ms [NAME] and [NAME] respective involvement in his [NAME], namely in the period August 2021 to December 2023, in the sum of £22,049.40.

10. The wasted costs applications are opposed by [NAME]. Its response to the applications extends to 68 pages. Whether the applications are apt for determination 11. The parties’ submissions run to some 179 pages in total. [NAME] nor Mr [RESPONDENT] seems to have given thought to the [NAME] of whether the applications are suitable for summary determination. Although the applications were listed for a two-day hearing, with a further day set aside for reading in advance of the hearing, Mr [RESPONDENT] confirmed that it had not specifically been discussed with Employment Judge Warren, who listed this hearing, whether the applications are suitable for summary determination. I cannot assume that the judge had this [NAME] in mind, less so that the hearing was a ‘Stage 1’ hearing at which such a determination was made, when this is not clear on the face of the hearing record. It has left me somewhat ‘between a rock and a hard place’. Given the length and scope of the parties’ submissions and the volume of materials included within the bundle, and given also that the wasted costs jurisdiction is intended to be a process for the determination of straightforward cases, I would have said that the applications were not suitable for summary determination. In Medcalf, Lord [NAME] gave the examples of failures to appear, conduct which leads to an otherwise avoidable step in the proceedings, or an advocate being grossly repetitive and extremely slow in presenting evidence or making arguments, as circumstances might be apt for summary disposal. He went on to say at paragraph 24 of the judgment,

“Save in the clearest [NAME], applications against the lawyers acting for an opposing party are unlikely to be apt for summary determination, since any hearing to investigate the conduct of a complex action is itself likely to be expensive and time-consuming. The desirability of compensating litigating parties who have been put to unnecessary expense by the unjustified conduct of their opponents' lawyers is, without doubt, an important public interest, but it is, as the Court of Appeal pointed out in Ridehalgh v Horsefield, at p 226, only one of the public interests which have to be considered.” 12. As [NAME] J noted in his judgment in [NAME], similar statements and sentiments can be found in a number of other cases, including by Lord Woolf, the Master of the Rolls, in Wall v Lefever [1998] 1F.C.R.605 and by [NAME] in [NAME] v Williams [2003] EWHC 3048 (QB) in which he observed:

[NAME]: 3320853/2021; 3302864/2022.

5

“Despite the best efforts of judges, and dare I say it, textbook writers, the true nature of the wasted costs jurisdiction is still insufficiently appreciated. This is a procedure to deal with relatively straightforward claims which are capable of summary disposal at a proportionate cost. It is not a vehicle for mounting a complex professional negligence action in circumstances where much of the relevant evidence is obscured from the court’s view.” 13. In my view, it matters relatively little that the Claimant has waived privilege so that the relevant evidence is not obscured from view. The fact remains that the applications involve a sustained and multi-layered critique of [NAME] conduct of the proceedings, including their advice to the Claimant. Be that as it may, if I send the parties away, I may simply be redirecting their concerns elsewhere, certainly in the [NAME] of the Claimant. I take on board Mr [RESPONDENT]’s point that even if there was no specific discussion at the hearing last September of whether the applications are apt for summary disposal, the parties have prepared for this hearing with the understanding and an expectation that the applications would be decided. I shall do so, but in a proportionate way consistent with the principle that wasted costs applications should be kept within sensible bounds and not permitted to develop into complex, costly satellite litigation. The sort of analysis that would be required if I were to engage point by point with the [NAME] and the [NAME] criticisms of [APPELLANT] [NAME] would likely take several days, if not longer. [NAME] act improperly, unreasonably or negligently? 14. As I said on 4 February 2026, I was able to use the reading time that was allocated to me in familiarising myself not only with the parties‘ respective submissions, but also the nearly 500 pages of documents appended to [NAME] response to the wasted costs applications and which I understand to largely be their [NAME] file. I have re-read these documents in coming to this judgment, along with quite a number of further documents in the bundle, including correspondence said to have been withheld from the Claimant (the so called ‘Red Tab’ and ‘Green Tab’ documents). What these documents evidence to me is a friendly, constructive solicitor and client relationship throughout the course of which [APPELLANT] provided the Claimant with regular updates and estimates as to costs, as well as their considered advice as to his prospects of success and the risks associated with litigation. As any client might expect of their solicitor, the Claimant received what were in effect cost / risk / benefit analyses as the matter progressed. At the pre-action stage, the agreed aim was to secure a swift settlement for the Claimant under the terms of which he would leave the [NAME] employment with a lump sum severance payment. His employment was not then at risk and indeed he continues to be employed by the Respondent. Ms [RESPONDENT] gave initial comprehensive advice by telephone on 1 September 2021, including on time limitation issues, reasonable adjustments, alleged harassment and an ongoing workplace grievance. She took care to establish what outcome the Claimant was

[NAME]: 3320853/2021; 3302864/2022.

6 hoping to achieve. She also advised as to the risk of resigning and claiming constructive dismissal in the absence of any obvious recent repudiatory breach by the Respondent. Her advice was for the Claimant to pursue the grievance through to its conclusion. She went on to advise as to what a reasonable settlement might look like in an exit situation, putting this at between £5,000 and £7,000. Their initial discussion concluded with an estimate of the costs of preparing correspondence to the Respondent and in reviewing any response.

15. I have gone into a little detail on the matter because Ms [NAME] note of their conversation (pages 1580 to 1583 of the bundle), the accuracy of which has not been disputed, evidences to me a solicitor exercising the care and skill one might reasonably expect of a solicitor holding themself out as competent to advise on, and indeed a specialist in, employment law matters. In my judgement, the recommended course of action was what any reasonably competent solicitor would have advised. The quoted costs of £600 plus VAT were eminently reasonable for the estimated 3 hours of work that would be involved.

16. Ms [NAME] attendance note is consistent with various other attendance notes she kept during her conduct of the [NAME]. They are admirably thorough and as I have already said, evidence that the Claimant was kept regularly updated as to the costs that had been incurred or which would likely be incurred in taking the matter to the next stage.

17. Within just a few days of their initial telephone discussion, Ms [NAME] had prepared drafts of two letters to be sent to the Respondent. She worked at pace when the Claimant provided reasonably detailed comments on the drafts as well as further documents for her to consider. The letters were finalised and sent early afternoon on 8 September 2022. The Claimant instructed Ms [APPELLANT] to propose a severance payment of £20,000 notwithstanding her advice that a reasonable settlement was potentially less than one third that amount. Seven days later the Respondent replied to say that Mr [RESPONDENT]’s [NAME], [NAME] was instructed. In the meantime, with a keen eye on time limitation issues, Ms [APPELLANT] reiterated in an email to the Claimant her initial advice that if the claim or aspects of it were not already out of time, the primary time limit would expire on 24 September 2021 subject to any extension for acas early conciliation.

18. Mr [RESPONDENT] emailed [NAME] on 21 September 2021 responding to both her open and without prejudice correspondence (pages 58 and 60 of the bundle). It does not seem to be disputed that she only forwarded a copy of the response to the without prejudice settlement offer to the Claimant. Given Ms [APPELLANT] professionalism up to that point, I do not consider this to have been a deliberate attempt on her part to withhold or, as the Claimant says, conceal, evidence from him. Whilst I was not told that a solicitor is under a duty to share all and any correspondence passing between solicitors with their client (unless, of course, the client has specifically requested this), even assuming that the response to the open letter ought

[NAME]: 3320853/2021; 3302864/2022.

7 to have been provided to the Claimant, in my judgement, for the reasons below, its provision would have made no difference whatever in terms of Ms [APPELLANT] advice or the [NAME] further instructions in the [NAME].

19. The Claimant maintains that he would never have brought a tribunal claim against the Respondent had he been aware of the contents of Mr [RESPONDENT]’s response to Ms [RESPONDENT] open letter. As regards the without prejudice settlement offer, this was rejected by the Respondent. Mr [RESPONDENT] said that the Respondent had no offer to make but that a small commercial payment might be considered. It left the Claimant boxed in as there was no offer for him to respond to. As regards Mr [RESPONDENT]’s response to the open letter, the email is unremarkable. It merely denied the intimated claims and stated the [NAME] intention to defend any claim. One would not expect an employer to say otherwise when faced with threatened litigation. Mr [RESPONDENT] went on to say that any claim by the Claimant that the Respondent had repudiated the employment contract had been waived. During their initial consultation, Ms [APPELLANT] had advised the Claimant that there was no immediate breach or last straw that might obviously be relied upon by him. I do not consider that Mr [NAME] repetition of this would have made any difference, particularly given that the Claimant had already resolved not to resign his employment given the legal risks identified by [NAME]. Mr [RESPONDENT]’s observations have no obvious bearing on the merits or otherwise of pursuing a Tribunal claim for alleged discrimination in the context of a continuing employment relationship.

20. Mr [RESPONDENT] concluded his open response by emphasising the [NAME] commitment to the grievance process that had been instigated by the Claimant, which he said should take its natural course. There was no indication in Mr [RESPONDENT]’s email as to when that process would conclude, certainly no suggestion by him that it would be resolved within the following day or two such that the Claimant might sensibly be advised to ‘run down the clock’ on any Tribunal claim to the very last moment, specifically that any work to draft and finalise the claim and to secure an early conciliation certificate should be delayed, in [NAME] a positive grievance outcome was forthcoming by 24 September 2021. Given the [NAME] need for structure and certainty, and that a positive grievance outcome might be thought unlikely given the response to the without prejudice offer, I cannot see how delaying would have been a sensible course to pursue. In any event, any claimant or solicitor who delays the preparation and submission of a claim until the 11th hour is inviting problems. If the [NAME] without prejudice position was that it had no proposals to make, but might consider a small commercial payment, the [NAME] negotiating position would certainly not have been enhanced by delaying, particularly if his claim became indisputably time- barred in the meantime. In circumstances where the Claimant was being professionally advised, I think the Respondent would have argued, with some justification, in such circumstances that it would not be just and equitable to extend time where the claim could have been presented or potentially presented, in time. There was certainly no suggestion by Mr

[NAME]: 3320853/2021; 3302864/2022.

8 [RESPONDENT] that the Respondent would waive any time limitation issues if the Claimant would hold off issuing a claim whilst he awaited the outcome of the grievance process.

21. In an effort to break the immediate impasse, Ms [APPELLANT] advised the Claimant to put forward a revised offer of £7,000, namely at the top of her previously advised settlement parameters. She also updated the Claimant on costs, as any further work would be outside the scope of her initial costs estimate. She also provided a cost estimate for drafting a tribunal claim and significantly, in the context of what is now said in support of the wasted costs applications, estimated that the costs of tribunal proceedings would likely be between £7,000 and £14,000 excluding representation at any final hearing. Having advised that the Claimant should settle for £7,000 she made the obvious point to him that it would be beneficial to conclude a settlement given the likely legal costs of taking the matter forward.

22. The grievance outcome was eventually provided to the Claimant on 19 November 2021. The Claimant did not withdraw his claim in light of the outcome, nor indeed following the [NAME] decision on his grievance appeal, which is surely at odds with his suggestion that had he known the Respondent was committed to the grievance process, he would not have brought a claim. In any event, regardless of Mr [RESPONDENT]’s email, the Claimant knew that the Respondent was committed to the grievance process because he attended a grievance hearing with [RESPONDENT] and [RESPONDENT] of the Respondent on 1 October 2021. I think it highly unlikely that the hearing had not already been arranged when on 29 September 2021 he authorised [NAME] to [RESPONDENT] his claim to the employment tribunals. But even if the hearing was scheduled at very short notice after the claim had been submitted, the Claimant could easily have instructed Ms [APPELLANT] to withdraw the claim if he believed the grievance process was finally moving forward and accordingly that he did not wish to continue with the claim.

23. Ms [NAME] evidently worked at pace in terms of submitting the claim. The Claimant instructed her to proceed at 10:30am on 27 September 2021. He wrote,

“Proceed with making the claim to tribunal please, seems [NAME] is just doing their usual tactic of ignoring and delaying and this leaves me with zero confidence they will not put in the remainder of the adjustments.

I have had no further updates regarding my grievance and my supervisor is not answering his phone and not gotten back to me about my pay enquiries.

To be honest I am fed up with this tiresome game they are playing.”

[NAME]: 3320853/2021; 3302864/2022.

9

(page 1608 of the Bundle)

24. Within two days a claim form, accompanied by 12-page Particulars of Claim, was presented to the employment tribunals.

25. The Respondent claims that [RESPONDENT] issued a weak and poorly pleaded claim. I disagree. The Particulars of Claim include a detailed chronological narrative account of events and conclude with a formally pleaded set of claims. In my judgement they advanced plainly arguable grounds of complaint. I note in this regard that although the Respondent would later seek a strike out of the claim, it did not do so on the grounds that the claim had no reasonable prospect of success. I shall come back to the second claim but note for the time being that my view of the pleadings was seemingly shared by Employment Judge Craft who described the [NAME] in October 2022 as having been comprehensively pleaded by both parties.

26. I do not propose to go into detail regarding the proceedings. I am satisfied that the Claimant was appropriately advised throughout by Ms [APPELLANT]. The Respondent neither agreed nor denied that the Claimant was disabled for the purposes of the Equality Act 2010. In essence, it put the Claimant to proof in the matter. Mr [APPELLANT] says this was part of a conscious strategy on the [NAME] part to force the Claimant to withdraw and agree what is often referred to as a ‘drop hands’ settlement, that is to say that the claim would be dismissed without any admission on either side or any payment to the Claimant, on the basis that each party would be responsible for their own legal costs. Given that the Claimant had been assessed by the DWP as eligible for a Personal Independence Payment; that the [NAME] own occupational health specialist had expressed the view that the Claimant was disabled within the meaning of the Equality Act 2010; that [NAME] was involved in relation to the Claimant and had agreed to fund or contribute to the cost of relevant workplace support; that workplace adjustments had been agreed by the Respondent; and that the [NAME] claimed disability reflects neurodivergent conditions, i.e. life long conditions rather than impairments whose effects at the material time may have been uncertain, it is perhaps surprising that disability was not conceded, even if the Respondent wished to have further information to reach a view as to how the Claimant was specifically disadvantaged by reason of his conditions.

27. It may not have been apparent to Employment Judge Warren, who undertook the initial consideration of the first claim under Rule 27, that the Respondent was in possession of the information just referred to. The judge made standard directions for the preparation of a Disability Impact Statement and disclosure of any relevant medical records, redacted as appropriate. The latter direction assumed some significant in the proceedings, culminating in Employment Judge Postle’s 31 May 2023 judgment on the [NAME] application to strike out the claim, in which he voiced certain criticisms of the Claimant. With respect to Employment

[NAME]: 3320853/2021; 3302864/2022.

10 Judge Postle, who retired last year and was a valued colleague within this Region, I consider certain of his findings and conclusions to be unsupportable. At paragraph 17 of his written reasons, he said that on filing the second claim the Claimant had failed or refused to provide information that had been “requested”. This can only be understood as a reference to paragraphs 22(b), 25(b), 28(b) and 33 of the response to the first claim, referred to in paragraph 15 of Employment Judge Postle’s reasons, in which the Respondent repeatedly asserted that the Claimant had

“…given no indication of the disability(ies) relied upon in relation to this claim”.

28. Having regard to paragraph 5 of the Particulars of Claim, I do not understand on what basis it might be said that the Claimant had given no indication of his disability(ies). He pleaded not just four impairments (or conditions) but also their effects upon his normal day to day activities. In my judgement it was not a want of pleading that meant the disability issue could not be resolved without a hearing, rather, at the point the second claim was presented, it was the [NAME] failure to concede disability in the face of a significant weight of evidence that supported the [NAME] claim to be disabled. Putting aside my views in the matter, in my judgement it was reasonable for [APPELLANT] to take the view that the [APPELLANT] disability had been adequately pleaded and to advise the Claimant accordingly.

29. I also cannot agree with Employment Judge Postle’s observation in paragraph 18 of his written reasons, that Employment Judge Warren had ordered the Claimant to provide precisely the information that was said by the Respondent to be missing from the pleaded claim. The order made by Employment Judge Warren on 3 March 2022 was in a standard form. It seems to me that Employment Judge Postle assumed the order was made in response to some perceived deficiency in the pleaded claim. In the absence of any documented reasons for Employment Judge Warren’s order, I think it was unwise to speculate: the order was equally, if not more, consistent with disability simply having not been admitted by the Respondent.

30. It is not possible to discern what Employment Judge Postle meant when he said at paragraph 19 of his written reasons that the disability information was “inconclusive” or the respects in which the specialist records were felt to have been rendered “largely pointless” through redaction, since he did not elaborate. Employment Judge Warren’s order had permitted redaction for very good reasons I need not go into. That was certainly the shared view of the [APPELLANT] and [APPELLANT] [NAME], in my judgement acting reasonably in the matter.

31. Employment Judge Postle went on to say that the Claimant had refused to provide his [NAME]. I think the position was significantly more

[NAME]: 3320853/2021; 3302864/2022.

11 nuanced. There is extensive evidence within the bundle that the [APPELLANT] and Ms [APPELLANT] were in dialogue regarding his disclosure obligations in this regard and that the Claimant had expressed the view, with increasing frustration, that the [NAME] would not be relevant to the disability issue. Putting aside that he and Ms [RESPONDENT] were both of the view that the Respondent should concede disability on the strength of the information already available to it, [APPELLANT] consistently advised the Claimant that he must comply with any orders, including by providing disclosure of any relevant medical records.

32. Employment Judge Postle also said that [NAME] had threatened the Respondent with a wasted costs order. I respectfully disagree. When one reads the correspondence it is clear, and I think would have been apparent to the Respondent or certainly to Mr [RESPONDENT] that, as many solicitors do, when [RESPONDENT] referred to wasted costs they were merely putting the Respondent on notice that its ongoing failure to concede disability was unreasonable given the information / evidence that was available to it. I can discern no assertions of unreasonable or negligent or improper conduct on the part of [NAME], or that their correspondence might reasonably have been understood in that way.

33. At paragraph 20 of his written reasons, Employment Judge Postle said that he had made a further [NAME] management order,

“… once again requiring the Claimant to provide the information ordered by Employment Judge Warren”. The order he was referring to was a [NAME] management order following initial consideration of the second claim. I do not presume to second guess what was in Employment Judge Postle’s mind when he made the order that he did in the second claim. However, his handwritten record of the initial consideration does not indicate that the [NAME] file for the first claim was referred to him at the same time. The claims had not then been consolidated and there was no direction by Employment Judge Postle that consideration would be given to consolidating the claims.

34. Employment Judge Postle went on to say at paragraph 21 of his written reasons that the Claimant had continued to fail or refuse to comply with his orders, without identifying the respects in which the Claimant was said to be in default. Be that as it may, if he was referring to the order for disclosure of relevant medical records, in my judgement [APPELLANT] had no reason to believe that the Claimant was in default as he had consistently instructed them that there was no relevant information regarding his neurodiversity within his [NAME] because he had been privately assessed in that regard.

35. Employment Judge Postle also said that at a hearing on 4 October 2022 Employment Judge Craft had,

“… ordered the Claimant “yet again” to provide disclosure.”

[NAME]: 3320853/2021; 3302864/2022.

12 36. I agree with [NAME] that in fact what Employment Judge Craft ordered on that occasion was for the Claimant to provide unredacted copies of his previously disclosed records. I refer to paragraph 3.1 of his [NAME] management order (page 608 of the bundle). The Claimant complied with that order. There was no order for additional disclosure of the [NAME] [NAME], in redacted or unredacted form, beyond the original standard [NAME] management order which the Claimant and Ms [APPELLANT] reasonably believed he had complied with.

37. In concluding, Employment Judge Postle said that the Claimant had come close to having his claim struck out because of his alleged failure / delay in producing his [NAME]. He expressed the further view that the situation had not been helped by [NAME]. Putting aside that he did not clearly identify in what respects they had not helped the situation, when he made these observations he did not, as I do, have the benefit of having sight of [NAME] [NAME] file which paints a very different picture to that suggested by the Claimant and Respondent, not only in terms of the two specific solicitors’ conduct of the proceedings but as regards the [NAME] commitment to comply with the Tribunal’s orders, including his frustration with what he described as the Respondent “gaslighting” him by continuing not to concede disability.

38. Employment Judge Postle would not have been aware of this when he criticised the [APPELLANT] and [APPELLANT], and said that a hearing to determine disability was only necessary because the Claimant was in default, but on 20 December 2022, [APPELLANT] put forward settlement proposals on behalf of the Respondent in which they said,

“Your client will continue to be recognised as disabled by reason of the combination of his ADHD, Autism and Dyslexia and will continue to be entitled to reasonable adjustments in respect thereof.”

[my emphasis]

(page 1925 of the Bundle)

39. I think Employment Judge Postle would have been surprised, even concerned, to learn that disability had been conceded five months earlier under the cloak of without prejudice correspondence and, seemingly, not for the first time if the Claimant was to continue to be recognised as disabled. The email serves to reinforce what the Claimant and [NAME] had be saying consistently regarding the [NAME] unreasonable failure to concede disability.

40. As an aside, I feel bound to observe that the offer itself was framed in terms that I do not consider appropriate. The tone was counter productive, indeed needlessly aggressive, and in my judgement unreasonably threatened the Claimant with legal costs of £15,000, asserting that it was a “virtual certainty” that Employment Judge Postle would make a costs order

[NAME]: 3320853/2021; 3302864/2022.

13 against the Claimant even if he did not strike out the claim. In a further section headed, “Your [NAME]’s professional conduct” the [NAME] vulnerability, including his impaired ability to understand and process information was highlighted. Notwithstanding these observations and the trenchant criticisms of [NAME] [NAME] that followed, including that in continuing to represent the Claimant they might secure an unfair and improper advantage over him, and that this was unconscionable, the Respondent gave the Claimant just three days to accept their settlement proposals and conclude a COT3 Agreement. The deadline was 4pm on Friday 23 December 2022 when most businesses would in fact have been closed for Christmas. In my judgement it was the [NAME] approach to settlement and to the disability issue that was unconscionable.

41. Turning to the Scott schedule: Item 3 42. I have said that the first claim was not weak or poorly pleaded. It was certainly not issued, as claimed, without the [NAME] instructions.

43. Aspects of the second claim were more problematic, as Mr [COUNSEL] acknowledges. However, a solicitor does not act unreasonably, negligibly or improperly in representing a client on a weak claim as long as they advise their client as to their prospects of success and provide regular updates on merits, risks and costs. [APPELLANT] did all three.

44. The Claimant was entitled to name Mr [APPELLANT] as a respondent and neither he nor [RESPONDENT] acted unreasonably in naming [RESPONDENT] as a further respondent given the confusion caused by the issue of a contract to the Claimant identifying that company as his employer.

45. Even if the sixth pleaded detriment at paragraph 32.1.6 of the Particulars of Claim in the second claim was weak, that does not of itself support the making of a wasted costs order. In any event, I cannot see that it caused either the Claimant or the Respondent to incur wasted costs. It was a minor item in a larger claim. Item 4 46. My detailed review of the [NAME] file and the correspondence between the solicitors does not support that [NAME] [NAME] were writing lengthy and unnecessary correspondence arguing misconceived points. On the contrary, I consider the [NAME]’s conduct of the litigation to have been in accordance with their duties as Officers of the Court, their professional obligations to the Claimant, and in the spirit of the overriding objective. Their focus throughout was to secure a concession from the Respondent that the Claimant was disabled, failing which the conversion of the [NAME] management preliminary hearing originally scheduled for August 2022 to a public preliminary hearing to determine the disability issue. Once they secured a concession or determination in the [NAME] favour, they were

[NAME]: 3320853/2021; 3302864/2022.

14 willing to consider taking the [NAME] forward under a damages-based agreement with a view to securing a settlement for the Claimant. Again, this was an entirely proper, reasonably advised course of action. Item 5 47. I have already dealt with the second claim. Employment Judge Postle did not determine that the claim was vexatious or abusive. There are no grounds upon which I would reach that conclusion. The second claim was considered and reflected the [NAME] specific, documented instructions. There can be no suggestion that it was brought simply in order to harass the Respondent or with some other improper motive. Nor was it irrelevant or abusive to the Respondent. The criticisms are misplaced. Item 6 48. I am not persuaded that without prejudice privilege was abused, certainly not on the part of the Claimant. It is not in any event clear what is being referred to since the pleaded narrative background made no reference to without prejudice correspondence between legal representatives. The second claim could equally have been referring to [NAME] open communication of 21 September 2021. Items 7, 8 and 9 49. I have dealt with the orders in some detail. There are no grounds to impugn [NAME] conduct. For the reasons I have already given, I do not consider Employment Judge Postle’s judgment in the matter to be persuasive and do not adopt his findings or conclusions, including those at paragraphs 24 and 25 of his written reasons in which he seems to suggest that [NAME] (specifically Mr [NAME] who had recently taken on conduct of the [NAME]) had adopted an essentially cavalier attitude to the [NAME] compliance with the Tribunal’s orders. He went as far as to say that Mr [RESPONDENT] was suggesting that,

“… the Respondent should just concede the issue of disability without any medical evidence, Specialist, [NAME] or otherwise for the Respondents to base such a decision on.” (page 884)

50. Whilst these observations overlook that evidence had already been disclosed to the Respondent, in any event far from taking a cavalier approach, Mr [NAME] was advocating a proportionate approach. He and Ms [NAME] were vindicated by the concession that was offered just a few weeks later. Yet some months later the Respondent would pursue strike out because of the [NAME] alleged failure to provide information and disclosure on an issue the Respondent had been prepared to concede (and indeed, could be said to have conceded), but only if the Claimant withdrew his claim. I do not consider it was proper for the Respondent to link the two matters. Employment Judge Postle’s criticisms of [NAME]

[NAME]: 3320853/2021; 3302864/2022.

15 further overlook both his and Ms [APPELLANT] correspondence with the [NAME] GP at pages 595 – 597 of the Bundle.

51. Mr [APPELLANT] wrote to Dr [NAME] on 4 November 2022 as follows: “Thank you for your letter of 17 October 2022, and we are grateful for the information contained in particular relating to [NAME]'s medications. However, we did request the forwarding to ourselves of full GP notes and records, which will include information and letters received from the [NAME] to which you refer. In fact, there is an Order made within the Employment Tribunal for the production to solicitors acting for [NAME]'s employer, of the full and unredacted [NAME] records. That Order is intended to include disclosure of the external documents in [NAME], and by which [NAME]'s current conditions were investigated and diagnosed. We also consider that the letter of consent as provided and signed by [NAME], provides authorisation for the forwarding and disclosure of all records and documents which relate to him, as are held by the [NAME].

Accordingly, we shall be pleased if you would kindly reconsider the request with the need to forwarding to us the entirety of the documents so held.“

(page 595 of the bundle) Item 10 52. As does Mr [NAME], I have some difficulty in understanding why there is or was said to be an own interest conflict. In [NAME] without prejudice save as to costs email of 20 December 2022, which I doubt extended to the section headed “Your [NAME]’s professional conduct” (starting at page 1925 of the bundle), it was said that [NAME] had acted, at best, negligently or unreasonably in the prosecution of the [NAME] from its inception. By this judgment I conclude otherwise. They had not, as alleged, allowed the Claimant to flagrantly breach three consecutive orders for disclosure and placed the Claimant at risk of strike out. An own interest conflict had not developed and there were no reasonable grounds for [NAME] to conclude that there was such a conflict or risk of a conflict. [NAME] email did not provide them with such grounds. Amongst other things, I do not understand on what grounds the Respondent felt able to venture that [APPELLANT] were failing to advise the Claimant properly or at all, or that the [NAME] was being advanced without the [NAME] full understanding and instructions. In my judgement the Respondent was trespassing upon the solicitor and client relationship, possibly deliberately so. In particular,

[NAME]: 3320853/2021; 3302864/2022.

16 there was no basis whatever for the Respondent to infer that [RESPONDENT] [NAME] were “doubling down” and continuing to spend more of the [NAME] money resisting an indefensible position. Item 11 53. I reject without hesitation any suggestion that the Claimant was misled regarding either the value or the merits of his claim, both of which were kept regularly under review and communicated to him. There is a difference between how a claim may be valued in a Schedule of Loss and for settlement purposes, and I am satisfied this was explained to the Claimant. It was his decision at the pre-action stage to try to secure a settlement at a significantly higher level than that which Ms [NAME] had advised. Item 12 54. Likewise, I do not accept that material information was withheld from the [APPELLANT] which might have enabled him to make informed decisions and give appropriate instructions. The [NAME] file evidences a high level of interactions with the Claimant, that the advice was clear and consistent, and that the Claimant understood that advice and persisted with his claim in the full knowledge of the costs that were continuing to be incurred. Item 13 55. [NAME] did not mislead the Tribunal. It is a particularly serious allegation yet has not been substantiated in any meaningful way. Mr [NAME] was transparent as to the efforts that had been made to secure the [NAME] [NAME]. The [APPELLANT] himself acknowledged at Tribunal the difficulties that had arisen, which he attributed to changes of GP as well as delays by at least one of the three GP practices. He also acknowledged his own resistance to providing his [NAME] which he considered to be irrelevant and to contain sensitive personal and family information that he did understandably did not wish to share. Item 14 56. The Claimant complains that [APPELLANT] [NAME] misled the Tribunal as to his position regarding postponement of the five-day final hearing which was listed to commence on 25 August 2023. It is difficult for me to ascertain whether [NAME] email of 20 June 2023 (at page 1202 of the bundle) was written on instructions. In the time available, I have been unable to undertake a further detailed review of the bundle to establish what, if any, attendance notes exist that might evidence whether the [NAME] instructions changed after April that year when he was of the view that the final hearing should be postponed. If I proceed on the basis that the email was written without the [NAME] instructions, there is no indication that this gave rise to wasted costs, except perhaps the costs, if

[NAME]: 3320853/2021; 3302864/2022.

17 any, of writing that small part of the email which addressed the matter. No steps were taken to prepare the [NAME] for final hearing. Item 15 57. In my judgement there was no breach of professional conduct, generally or specifically and, as I have already made clear, I reject any suggestion that [APPELLANT] took advantage of the Claimant to rack up fees.

58. The wasted costs applications are refused.

Approved by:

Employment Judge Tynan

Date: 3 March 2026

Sent to the parties on:16 April 2026.....

............................................................

For the Tribunal Office.

Public access to Employment Tribunal decisions

Judgments and Reasons for the Judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the Claimant(s) and Respondent(s) in a [NAME].

Recording and Transcription

Please note that if a Tribunal Hearing has been recorded you may request a transcript of the recording, for which a charge is likely to be payable in most but not all circumstances. If a transcript is produced it will not include any oral Judgment or reasons given at the Hearing. The transcript will not be checked, approved or verified by a Judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/

[NAME]: 3320853/2021 & 3302864/2022

1

EMPLOYMENT TRIBUNALS

Claimant

Respondent

Mr [APPELLANT] v [APPELLANT] at: Norwich

Tribunal reading day: 3 February 2026

Hearing and Judgment: 4 and 5 February 2026

Before: Employment Judge Tynan

Appearances

For the Claimant: [redacted]

WASTED COSTS JUDGMENT

The Claimant and [NAME] applications dated 29 July 2024 for wasted costs orders against the [NAME] [NAME], [APPELLANT] are refused.

Approved by:

Employment Judge Tynan

Date: 5 February 2026

Sent to the parties on:16 April 2026......

......................................

For the Tribunal Office.

[NAME]: 3320853/2021 & 3302864/2022

2 Note

Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

Public access to Employment Tribunal decisions

Recording and Transcription