Wasted costs bid fails: legal privilege protects representative from sanction
A tribunal refused to order a claimant's representative to pay wasted costs, despite the claimant withdrawing all claims the day before the final hearing, because the respondent could not prove improper conduct.
1 min read · Last updated 19 May 2026
Case details
- #wasted-costs
- #rule-80
- #legal-privilege
- #hopeless-claims
- #breach-of-orders
Key facts
- The claimant was employed as a kitchen porter/general assistant at a private hospital.
- The claimant was dismissed for gross misconduct on 25 May 2021.
- The claimant brought claims of race and disability discrimination, unfair dismissal, and other claims.
- The claimant failed to comply with tribunal orders and withdrew all claims the day before the final hearing.
- The respondent applied for a wasted costs order against the claimant's representative.
- The tribunal refused the wasted costs order, citing legal privilege and lack of evidence of abuse of process.
Timeline
-
Complaint and dismissal
A complaint was made about the claimant, and he was subsequently dismissed for gross misconduct at a client site. His appeal was also dismissed.
-
Claims presented
The claimant presented grounds of complaint to the tribunal, bringing claims of direct race discrimination, disability discrimination, failure to make reasonable adjustments, unfair dismissal, and underpayment of wages.
-
Preliminary hearing
The tribunal made orders for the claimant to provide information on the disability claim and to pay a deposit of £100 for the section 15 claim. The claimant did not comply.
-
Notice of withdrawal and new claim
The claimant's representative wrote to the respondent's lawyers, notifying of an intention to withdraw the race claim and indicating they were instructed to bring a claim for psychiatric injury and negligence under the Protection from Harassment Act 1997.
-
Application to stay proceedings
The claimant's representatives applied to stay the tribunal proceedings and vacate the hearing, citing an intention to bring a civil claim for personal injury. The application was refused on 5 December 2022.
-
Strike out warning
Employment Judge Wright wrote to the claimant's representatives, stating she was considering striking out the claim for failure to comply with orders and lack of active pursuit.
-
Reconsideration application
The claimant's representatives applied for reconsideration of the refusal to stay, based on the claim form having been lodged and issued. This was refused on 19 January 2023.
-
Withdrawal of all claims
The claimant's representatives withdrew all proceedings before the employment tribunal, the day before the final hearing.
-
Wasted costs hearing
The tribunal heard the respondent's application for a wasted costs order against the claimant's representative.
-
Judgment
Employment Judge McLaren issued a judgment refusing the wasted costs order.
The legal issue
Whether a claimant's representative should be ordered to pay wasted costs under rule 80 for pursuing claims that were withdrawn at the last minute, breaching tribunal orders, and making a misconceived application to stay proceedings.
The outcome
The tribunal refused the respondent's application for a wasted costs order against the claimant's representative.
The key reason was that the respondent did not provide sufficient evidence that the representative's conduct was improper, unreasonable, or negligent. The tribunal noted that legal privilege protected the representative's advice to the claimant, and there was no evidence of an abuse of process. The representative had withdrawn the claims before the final hearing, and the tribunal found that the respondent's application did not meet the high threshold required for wasted costs orders.
No compensation was awarded.
Lessons & takeaways
- Wasted costs orders are rare and require clear evidence that a representative acted improperly, unreasonably, or negligently.
- Legal privilege can shield a representative's advice from scrutiny, making it harder to prove misconduct.
- Withdrawing claims before a hearing, even at the last minute, does not automatically justify a wasted costs order.
- Breaching tribunal orders alone may not be enough for a wasted costs order if the representative has a reasonable explanation.
This case shows the high bar that respondents face when seeking wasted costs orders against a claimant's representative. The claimant, a kitchen porter, brought multiple discrimination and unfair dismissal claims after his dismissal for gross misconduct. His representative failed to comply with tribunal orders and withdrew all claims the day before the final hearing, leaving the respondent with significant legal costs.
However, the tribunal refused to make a wasted costs order. The key obstacle was legal privilege: the respondent could not access the representative's advice to the claimant, so it could not prove that the representative acted improperly or unreasonably. The tribunal also noted that the representative had a plausible explanation for the late withdrawal — the claimant had decided to pursue a civil claim instead — and there was no evidence of an abuse of process.
What the respondent could have done differently
To succeed in a wasted costs application, the respondent needed to show that the representative's conduct fell below the standard expected of a competent lawyer. Simply pointing to breaches of orders and a late withdrawal was not enough. The respondent might have gathered more evidence of improper motive or sought disclosure of non-privileged communications. Without such evidence, the application was bound to fail.
Why this matters for similar claims
This case is a reminder that wasted costs orders are a remedy of last resort. Tribunals are cautious about penalising representatives, especially when legal privilege prevents full scrutiny. For respondents, pursuing a wasted costs application can be costly and uncertain. For claimants, it means that even if their case is weak or withdrawn late, their representative is unlikely to be personally liable unless there is clear evidence of misconduct.
Similar cases
Employer granted extension to defend claim despite missing deadline
A tribunal granted an employer's late application to defend a claim but ordered it to pay costs for unreasonable conduct, while dismissing a wasted costs application against its former representative.
Wasted costs application against NHS Trust solicitors dismissed after settlement agreement
A junior doctor's attempt to obtain a wasted costs order against the solicitors for an NHS Trust was dismissed because a 2018 settlement agreement precluded the application and there was no improper conduct.
Interim relief refused: redundancy decision made before protected disclosures
A senior contracts attorney lost her bid for interim relief after the tribunal found her redundancy was decided before she made protected disclosures about sanctions risks. The claim was dismissed.
Wasted costs bid fails: solicitor's negligence did not cause the hearing costs
A wasted costs application against a former employee's solicitors was refused because, although their late responses were negligent, the preliminary hearing would have happened anyway.