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Horror story for Claimant ordered to pay £170k in costs

Principal Solicitor, Paul McGowan

For our Halloween employment law update, we thought we should cover the Employment Appeal Tribunal’s decision in the case of Brooks v Nottingham University Hospitals NHS Trust, in which it considered whether a Claimant should have to pay £170,000 in costs for unreasonably pursuing a claim with no prospects of success.

Background

The Claimant worked as a consultant surgeon for the Nottingham University Hospitals NHS Trust (“the Respondent”). He complained that, after raising issues which he claimed posed a risk to patients, he was subjected to various detriments and brought a whistleblowing claim to the Employment Tribunal.

The Claimant alleged he had made 18 protected disclosures which had resulted in 40 detriments. As a result of the sheer volume of issues which needed to be considered, the hearing was listed for 27 days and his witness statement alone was 214 pages long.

Costs in the tribunals

Generally, each party bears their own legal costs when claims are pursued in the Employment Tribunal. However, a party may apply to the Tribunal for a costs order in the event that the claim or response has no reasonable prospect of success or the opposing party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing the proceedings or the way that the proceedings have been conducted.

Decision

The Employment Tribunal dismissed the Claimant’s whistleblowing claim because it concluded that despite the Claimant making several protected disclosures and suffering detriments, he had not established a causal link between the two. The Claimant had in fact recorded a number of detriments that had occurred before he had even made any protected disclosures.

The Respondent made an application for costs which the Tribunal awarded on the basis that the Claimant had pursued claims with no reasonable prospects of success and unreasonable conduct of proceedings. The Claimant was ordered to pay the Respondent £170,000 in respect of their legal costs in defending the claim.

The Claimant appealed to the Employment Appeal Tribunal (“EAT”) but this was rejected. The EAT concluded that the Claimant had failed to establish that the Tribunal’s original decision was perverse and that the Tribunal was entitled to reach its conclusion that the claim had no reasonable prospect of success. It explained that the test of unreasonableness is objective not subjective and when considering the evidence, no reasonable person would have seen the claims as worth pursuing.

Comment

This case should serve as a warning to Claimants that there is a financial risk of pursuing claims with either no reasonable prospects of success or in an unreasonable manner. It is also a reminder that despite costs awards usually being the “exception rather than the rule”, tribunals do still have the power to make costs orders and will do so in cases where there has been clear unreasonable conduct by a party.

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