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.
1 min read · Last updated 18 May 2026
Key facts
- The claimant brought claims of protected disclosure detriment and constructive unfair dismissal.
- The claimant's solicitors failed to respond to two tribunal letters and responded late to a third.
- The respondent applied for a wasted costs order against the claimant's solicitors.
- The tribunal found the solicitors' conduct was negligent but not the cause of the costs claimed.
- The respondent's application for wasted costs was refused.
Timeline
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Claim presented
The claimant brought claims of protected disclosure detriment and constructive unfair dismissal.
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Strike out warning
The tribunal issued a strike out warning to the claimant, requiring reasons by 14 December 2021.
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EJ Khalil's letter
EJ Khalil wrote that the claim appeared to include a section 103A unfair dismissal claim and invited comments.
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Respondent's disagreement
The respondent disagreed with EJ Khalil's view by letter.
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Second letter from EJ Khalil
EJ Khalil wrote to the claimant noting no response and attached a copy, asking for reply by 1 November 2022.
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Claimant's late response
The claimant's solicitors replied, apologising for missing the deadline due to administrative oversight.
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Respondent's application for preliminary hearing
The respondent applied to convert the final hearing to a preliminary hearing regarding the section 103A issue.
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Open Preliminary Hearing
Employment Judge Burge held a preliminary hearing, refused the strike out, and case managed the claims.
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Costs judgment
The tribunal refused the respondent's wasted costs application against David Benson Solicitors Ltd.
The legal issue
Whether the respondent could recover the costs of a preliminary hearing from the claimant's solicitors on the basis that the solicitors' negligent failure to respond to tribunal letters caused those costs.
The outcome
The tribunal refused the respondent's application for a wasted costs order against David Benson Solicitors Ltd.
- The solicitors' failure to respond to two tribunal letters and late response to a third was found to be negligent.
- However, the preliminary hearing was requested by the respondent and was necessary to resolve a dispute about the claim, so the costs would have been incurred regardless of the solicitors' conduct.
- No costs were awarded.
Lessons & takeaways
- Wasted costs orders require a direct causal link between the representative's conduct and the costs incurred – negligence alone is not enough.
- If you apply for a hearing yourself, you cannot later claim the other side's conduct caused the costs of that hearing.
- Solicitors should have robust systems to avoid missing tribunal deadlines, as repeated failures may be found negligent.
When negligence doesn't mean liability for costs
This case shows that even when a solicitor's conduct is found to be negligent, a wasted costs application will fail if the costs would have been incurred anyway. The former employee's solicitors admitted they missed two tribunal deadlines and responded late to a third due to 'administrative oversight' and 'human error'. The tribunal described this as poor and negligent – solicitors are expected to have systems in place to prevent such failures.
The causal link that was missing
The respondent, Kentucky Fried Chicken Limited, applied for a wasted costs order to recover the costs of their representative attending an open preliminary hearing. But the tribunal noted that it was the respondent who had asked for that hearing, to strike out the claimant's constructive unfair dismissal claim. The hearing was necessary to resolve a genuine dispute about whether the claim had been properly pleaded. So the costs would have been incurred regardless of the solicitors' late responses.
What this means for similar claims
Wasted costs orders are not a penalty for poor conduct – they are designed to compensate the other party for costs that were unnecessarily caused by the representative's actions. Here, the conduct was negligent but not the cause of the costs. The message for employers is clear: if you request a hearing, you cannot later blame the other side's solicitors for the cost of that hearing, even if they have been dilatory.
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