Legal advice confirmed as relevant tribunal consideration when making a costs award

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25 October, 2019

Rosalind Leahy

Although the current lack of tribunal fees for employment claims can be seen to increase access to justice and potentially act as a positive indicator for individuals wishing to bring claims, the potential for a costs award should a claim be unsuccessful is often a daunting prospect for claimants considering bringing a claim. It is also daunting for employers who consider defending claims made against them.

But to what extent is the advice on the merits of any claim or defence by legal advisors relevant to a tribunal's considerations of costs liability? In Brooks v Nottingham University Hospitals NHS Trust, the EAT held that in dealing with an application for costs, a tribunal can take into account positive legal advice received by an unsuccessful claimant. Such advice may be deemed to have acted as an encouragement to a claimant to pursue a claim that ultimately may prove unsuccessful. However, whilst such advice may be taken into account by a tribunal, it will not necessarily insulate a claimant from a costs award against them.

Such advice will need to be evidenced to the tribunal. In the absence of any evidence as to the form and content of the advice, and the basis on which the advice was provided, the tribunal is entitled to assume that a claimant with legal representation has been adequately advised as to the merits and de-merits, and potential risks of their case. Also that they have been advised of the possibility of a costs award against them should they pursue tribunal proceedings.

Should a claimant chose to waive privilege to evidence the advice provided to them, they will also need to clarify the instructions given, the context in which the advice was provided and the evidence considered.

This finding perhaps makes it more difficult for respondents to predict the likelihood of a costs award in their favour when faced with claims that are likely to be found to be unsubstantiated. The quality and robustness of the advice provided to a claimant is an unknown quantity for a respondent, so it will be harder to predict the outcome of a costs award. However, an additional level of protection is afforded to claimants who rely on legal advice when choosing to bring a claim, or respondents choosing to defend such claims, where perhaps previously recourse would have been a negligence claim against their legal adviser. Potentially a favourable decision for professional indemnity insurance providers and an increase in uncertainty for respondents.

For more information contact Rosalind Leahy in our Employment & HR department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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