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.
2 min read · Last updated 18 May 2026
Case details
- #wasted-costs
- #non-disclosure
- #learning-development-agreement
- #settlement-agreement
- #consent-order
- #whistleblowing
- #worker-status
Key facts
- The claimant was a junior doctor employed by the NHS Trust and funded by Health Education England.
- The claimant brought whistleblowing claims against both respondents, and HEE initially challenged his worker status.
- The Court of Appeal remitted the worker status issue, and HEE conceded before the remitted hearing.
- The claimant entered into a settlement agreement in October 2018 that released all costs claims against parties and their representatives.
- The claimant later discovered that Hill Dickinson had drafted the LDA and applied for wasted costs, arguing non-disclosure.
- The tribunal found the settlement agreement precluded the wasted costs application and that there was no improper conduct by Hill Dickinson.
Timeline
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Claimant employed by NHS Trust
The claimant began a 12-month fixed-term contract as a junior doctor in Emergency Medicine at Lewisham and Greenwich NHS Trust.
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First claim presented
The claimant presented a whistleblowing detriment claim against multiple respondents, including HEE.
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Strike-out granted
Employment Judge Hyde struck out the claim against HEE, finding no reasonable prospect of establishing worker status under s.43K ERA.
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EAT upholds strike-out
The Employment Appeal Tribunal dismissed the claimant's appeal, upholding the strike-out.
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Consent order on costs
The claimant and HEE agreed that each would bear their own costs of the Court of Appeal, whatever the outcome.
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Court of Appeal remits
The Court of Appeal allowed the appeal, finding errors of law, and remitted the worker status issue to the Employment Tribunal.
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Disclosure of 2012 Template LDA
HEE disclosed the 2012 Template Learning and Development Agreement to the claimant.
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HEE concedes worker status
HEE conceded that the claimant was a worker under s.43K ERA, and the claimant received £55,000 in costs for the worker issue.
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Settlement agreement
The claimant entered into a settlement agreement with both respondents, releasing all claims including costs against parties and their representatives.
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Wasted costs application
The claimant applied for a wasted costs order against Hill Dickinson, alleging non-disclosure of the LDA.
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Wasted costs application dismissed
Employment Judge Ramsden dismissed the wasted costs application, finding it precluded by the settlement agreement and no improper conduct.
The legal issue
The tribunal had to decide whether a wasted costs order could be made against the respondent's solicitors for alleged non-disclosure of a key document, given that the claimant had signed a settlement agreement that released all costs claims, and whether the solicitors' conduct met the high threshold for a wasted costs order.
The outcome
The tribunal dismissed the application for a wasted costs order against Hill Dickinson LLP, the solicitors for Health Education England (HEE).
The key reasons were:
- The settlement agreement signed in October 2018 released all costs claims against the parties and their representatives, including the solicitors.
- Even if the settlement agreement did not apply, there was no improper, unreasonable or negligent conduct by Hill Dickinson. The non-disclosure of the Learning and Development Agreement (LDA) was not deliberate and did not cause any waste of costs, as the document was disclosed in February 2018 and HEE conceded the worker status issue shortly after.
No compensation was awarded as the application was dismissed.
Lessons & takeaways
- A settlement agreement that releases all claims against parties and their representatives can bar a later wasted costs application against solicitors.
- Wasted costs orders require a high threshold of improper, unreasonable or negligent conduct; mere non-disclosure of a document may not suffice if it is not deliberate and does not cause wasted costs.
- If you suspect non-disclosure of documents, raise the issue promptly and before entering into a settlement agreement that might waive future claims.
- The timing of disclosure matters: if a document is disclosed before a key concession, it may be difficult to argue that the delay caused significant wasted costs.
What this case shows in practice
This case highlights the limits of wasted costs applications in employment tribunals, particularly when a settlement agreement has been signed. The junior doctor had been pursuing whistleblowing claims against Lewisham and Greenwich NHS Trust and Health Education England (HEE) since 2014. A central issue was whether HEE was his 'worker' under section 43K of the Employment Rights Act 1996. HEE initially challenged this, and the claim was struck out, but the Court of Appeal later remitted the issue. In May 2018, HEE conceded worker status, and the doctor received £55,000 in costs. However, he later discovered that HEE's solicitors, Hill Dickinson, had drafted a Learning and Development Agreement (LDA) that was relevant to the worker status issue. He argued that this document should have been disclosed earlier and applied for a wasted costs order.
What the losing side could have done differently
The tribunal found that the settlement agreement signed in October 2018 released all costs claims against the parties and their representatives. This was a complete bar to the wasted costs application. Even if the settlement agreement had not applied, the tribunal found no improper conduct by Hill Dickinson. The LDA was disclosed in February 2018, before HEE conceded worker status in May 2018. The tribunal noted that the delay in disclosure did not cause any waste of costs because the concession came shortly after. The doctor could have raised the non-disclosure issue before signing the settlement agreement, or sought to exclude costs claims from the settlement.
Why the result matters for similar claims
This decision reinforces that wasted costs orders are exceptional and require clear evidence of improper, unreasonable or negligent conduct by a legal representative. It also underscores the importance of carefully reviewing settlement agreements before signing, as they can waive future claims against parties and their representatives. For claimants, the message is to act promptly if you suspect non-disclosure, and to ensure that any settlement agreement does not inadvertently bar legitimate applications for costs.
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