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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Dowding v The Character Group PLC (UNFAIR DISMISSAL - COSTS) [2024] EAT 153 (24 September 2024) URL: https://www.bailii.org/uk/cases/UKEAT/2024/153.html Cite as: [2025] ICR D3, [2024] EAT 153 |
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and EA-2022-000111-BA |
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
MR M DOWDING |
Appellant |
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- and - |
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THE CHARACTER GROUP PLC |
Respondent |
____________________
James Laddie KC (instructed by Aria Grace Law CIC) for the Respondent
Hearing date: 30 and 31 July 2024
____________________
Crown Copyright ©
SUMMARY
UNFAIR DISMISSAL
COSTS
The claimant in the employment tribunal was the finance director of the respondent, a company listed on the Alternative Investment Market. Following his dismissal he complained of unfair dismissal for the reason or principal reason that he had made protected disclosures, alternatively ordinary unfair dismissal. The tribunal concluded that the claimant had not, in law, made protected disclosures, because the disclosures relied upon were not believed by him to have been made in the public interest (alternatively, if they were, his belief was not reasonable). Nor in any event was the claimant dismissed by reason of those disclosures. The tribunal found that this was a fair dismissal by reason of a breakdown in trust and confidence that had been caused by the claimant's conduct.
At a further costs hearing the tribunal awarded the respondent costs, in a capped amount, subject to detailed assessment on the indemnity basis. It rejected a costs application by the claimant himself. The respondent also successfully sought its costs in respect of the costs hearing, which it had limited to the maximum that could be summarily awarded, of £20,000.
The claimant's appeal against the decision dismissing the ordinary unfair dismissal complaint was unsuccessful. An appeal against the costs decision succeeded in two respects. The EAT concluded that, under the Employment Tribunal Rules of Procedure 2013, the tribunal does have the power to direct that a detailed costs assessment be on the indemnity basis; but the tribunal had not shown whether, or if so, why, it had decided that such a direction was warranted in this case, applying the guidelines in Howman v Queen Elizabeth Hospital, UKEAT/0509/12/JOJ.
In respect of the "costs of costs" award, the tribunal had not considered whether the sum of £20,000 was warranted having regard to the nature, gravity and effect of the conduct which gave rise to the award; or if it had considered that, it had not sufficiently explained its decision in that respect.
HIS HONOUR JUDGE AUERBACH:
Introduction
The Factual Background
The Tribunal's Liability Decision
"However, the Tribunal concludes that the claimant did not believe that in respect of any of the aforementioned, his disclosures were in the public interest pursuant to the first part of the public interest test in Chesterton. The Tribunal reached this conclusion for a number of reasons:
• The Tribunal took into consideration the claimant's acknowledgment that he was not aware of any shareholder having ever exercised the right to inspect
• The Tribunal took into consideration the respondent's solicitors view (conveyed by the claimant himself) that he was not aware of any prosecution in relation to S.228 (page 302)
• The Tribunal took into consideration the reference in the claimant's email of 10 July 2017 to the breach being a 'technical' breach. The natural meaning of this word in context was that the breach was, to use an explanatory/analogous expression - not a big deal. In fact, under cross examination on this point by Mr Laddie QC he reaffirmed that view when he used the expression "in the eyes of the law". That carries the same meaning as 'technically', in context.
• The claimant sent his memorandum of terms to the Solicitors and copied to Mr Shah in purported compliance with S.228 CA. Most of the terms, apart from salary, were not agreed. This was known to the claimant. The Tribunal questioned the claimant about this document when he confirmed that to be the case. The Tribunal concluded that the claimant could not have believed that it was of major significance that he should provide agreed/up to date terms. If he did, he would have qualified what he said or waited to provide his particulars.
• The claimant's queries of Mr Smyth for Directors' terms comparator information commenced the day after (9 June 2017) Mr Shah had sent him his draft service agreement (8 June 2017). In addition, in his email of 26 June 2017, he stated expressly he needed to see those terms "to progress this" which was a reference to his service agreement negotiations. The claimant's interest was a private one. Whilst that does not exclude a dual/concurrent public interest purpose, for reasons given above/below the Tribunal concludes that wasn't the case at all.
• Whilst it is not a barrier to being a qualifying protected disclosure, the fact that the claimant first alleged he had made a public interest disclosure was not until his appeal against dismissal in October 2017, following advice, suggested to the Tribunal that it was not a thought of the claimant at all."
"There was no causal link to the asserted protected disclosures. Each issue had their own triggering events. There was a proper basis for the instigation of the process. It was key part of the claimant's evidence that he was being 'set up'. He said this more than once in relation to the requests made of him during the contract negotiations and the S&W emails. This troubled the Tribunal. The obviously flaw in that conspiracy theory was that if he had provided his comments tracked in a word document and the S&W emails, these 2 charges against him would have been extinguished. It also required foresight that the claimant would persistently refuse to comply. The requests were not difficult to comply with at all. Instead, his refusal put the respondent in an impossible position, and it was inevitable then that his insubordination would lead to a natural progression and elevation of the issue. The claimant was thus the author of his own misfortune in this regard."
"It was difficult to escape an inevitable conclusion that 2 of the 3 issues for which the claimant was dismissed showed persistent/repeated insubordination towards his boss. The claimant struggled even when giving evidence in Tribunal to accept that he was subordinate. The conspiracy case, as analysed above was hopeless. The claimant accepted in response to Tribunal questions that had he complied with Mr Shah's requests there would have been no case for the respondent to advance in respect of those matters. The Tribunal noted that in fact the claimant's taking of leave, last minute, a few weeks before the Corporation tax deadline was not, ultimately, upheld as a contributing factor to his dismissal. The August incident however was a contributing factor which portrayed a further example of insubordination. The other common factor was that all issues had arisen in a relatively short and very recent period of time. There was no reliance on anything peripheral. The claimant also accepted in evidence that he had deliberately withheld emails from Mr Shah which was what the respondent believed at the time. In fact, at the appeal (against dismissal), Mr King had formed a belief that the claimant had been dishonest in relation to the S&W emails which will be analysed further below. The Tribunal concluded that the claimant was perhaps fortunate that the case against him was not for gross misconduct. The S.228 CA breach did not have any causal relevance to the claimant's dismissal. Its relevance was no more than a chronologically historical fact."
"142. The Tribunal repeats to a large extent, its conclusions in paragraph 131 above. The Tribunal reminds itself that it must apply a test not dissimilar to the Burchell test to the respondent's decision to dismiss the claimant especially as the substantial reason relied upon overlapped considerably if not entirely with matters of conduct. The Tribunal also reminded itself that it must not substitute its view. The range of reasonable responses test also applies both to the decision to dismiss substantively and procedurally. Paragraph 137 above sets out why the Tribunal concludes that the respondent had a genuine belief in the loss of trust and confidence in the claimant and why it had reasonable grounds upon which to hold that belief. In relation to investigation, the Tribunal concluded that the respondent could have spoken with the claimant and Mr Kapadia at least in relation to the August incident and the S&W emails. However, the Tribunal went on to conclude that was not, overall, fatal to the reasonableness of the investigation. This was not about the need to have a pre-disciplinary investigation, but about whether pre-dismissal there was a reasonable investigation. By the time of the disciplinary hearing and indeed by the conclusion of the appeal hearing, the claimant had had a full right of reply including any investigation concerns. It was also apparent to the Tribunal that the email traffic captured a very significant amount of the respondent's concerns and the decision to take the matter further. There was no suggestion that the 'dossier' of evidence given to Mr Kissane by Mr Shah was selective or incomplete.
143. The appeal Hearing was conducted independently and thoroughly. The Tribunal concludes that by the conclusion of the appeal hearing the loss of trust and confidence in the claimant had in fact become more aggravated and had in fact elevated in to disbelief of the claimant – not as a separate charge against him but why his response (s) were rejected. The claimant was disbelieved at the dismissal stage about providing the S&W emails when he returned from leave and by the conclusion of the appeal hearing he was disbelieved about not seeing Mr Shah's emails until 5 September 2017 particularly as the claimant had provided some of the emails on 1 September 2017 and because of the claimant's email of 22 August 2017 (which the Tribunal concluded related to the email at page 516).
144. This dismissal was within the band of reasonable responses both procedurally and substantively. In so far as it might have been alleged, the appeal process through its independence and comprehensiveness, cured any defect with regard to any insufficiency of preparation time, clarity of the case against the claimant or otherwise (which the Tribunal did not find)."
The Tribunal's Costs Decision
"22. The claimant was in breach of the Tribunal's Order to provide a statement of means. His explanation for not doing so – that he was seeking clarification why the Tribunal had not Ordered the respondent to provide a statement of means was wholly inadequate. It did not excuse noncompliance with an Order.
23. The Tribunal took evidence of the claimant's means under oath and invited the respondent to cross examine that evidence if it wishes to do so, on the morning of day 2."
"Unreasonable conduct in that the claimant:
... Gave dishonest evidence in respect of a large number of disputed matters;
... Came up with new and unheralded evidence on a whim;
... Accused the Respondent of not having made disclosure in circumstances where he himself had concealed his possession of the very documents that he was accusing the Respondent of not having disclosed;
... Pursued and failed to concede a ludicrous and distressing allegation of forgery/documentary fabrication against Ms Nahal even though it was obvious;
... Contrived a whistleblowing case in a cynical and misconceived attempt to displace the statutory cap on recovery of awards for ordinary unfair dismissal (thereby enabling him to claim the wholly unrealistic sum of £1,463,567.34 + ACAS uplift in his final schedule of loss. The Tribunal will recall, he said, that the Claimant first raised the possibility of whistleblowing detriment after his dismissal, in his appeal (and even then it was barely related to the Companies Act s.228 issue); whilst not specifically referred to in the Judgment, there are numerous passages in the Claimant's witness evidence where he claimed that he knew that the writing was on the wall shortly after making his alleged protected disclosures. Plainly, that evidence was false. He knew that his "whistleblowing" had nothing to do with the events leading up to and culminating in his dismissal. Why, then, did he bring a whistleblowing claim? The answer is obvious – to be able to serve an intimidating and grossly inflated schedule of loss.
... The nature, gravity and effect of the unreasonable conduct was profound. The Claimant advanced a claim that was in large part false, presumably designed to embarrass the Respondent and/or pressurise it into compromising the dispute at an unrealistic and disproportionate level. The Claimant's unreasonable conduct led directly to the trial being far longer than it needed to be, with far more documents and witnesses than were necessary. Had the Claimant limited himself to an ordinary unfair dismissal claim, as he ought to have done, the claim is unlikely to have been heard at all (i.e. it would have been compromised on a commercial basis, consistent with the sensible approach taken by the Respondent immediately prior to the Claimant's dismissal). If it had been heard, it would have taken no more than a couple of days of Tribunal time and the Respondent would have had to call many fewer witnesses and would not have needed to instruct a QC.
The Claimant's whistleblowing claims – i.e. his claims under ERA, s.47B and s.103A had no reasonable prospect of success. In particular:
... The Claimant knew at all times that he had no subjective belief that his disclosure of information relating to the technical breach of the Companies Act 2006, s.228, was in the public interest.
... The Claimant knew at all times that his dismissal and any detriments that he suffered had nothing whatsoever to do with his communications about the technical breach of s.228, but were caused by his own sub-optimal conduct whilst in post. In this regard, the Respondent relies in part on the Claimant's appreciation that the Respondent's reaction to the S.228 information was both appreciative and unworried.
... The points made at sub-paragraphs (a) (v) ('contrived a whistleblowing case) and (b) ('the nature, gravity and effect of the unreasonable conduct was profound') above are repeated and reiterated in respect of the contention that the whistleblowing claims had no reasonable prospect of success.
Costs/amount sought by the respondent
... As to the proportion of the Respondent's costs that the Claimant ought to pay, the Respondent is prepared to make the following concession of principle. A significant element of the Respondent's costs were incurred because the trial was twice adjourned, on both occasions not due to the fault of either party. That said, the lion's share of the costs of pleadings, disclosure, preparation of witness statements and attendance at trial were and would always have been incurred regardless."
"27. In submissions, the respondent also sought reliance on the without prejudice save as to cost correspondence which the claimant had included in his bundle. The rejection of the pre-trial offer, it said was unreasonable. It said, essentially, that the claimant did so because the claimant had advanced a dishonest case on whistleblowing to remove the statutory cap.
28. In addition, the respondent said the claimant's whistleblowing claim was founded on a lie because the claimant did not have the public interest in mind. This was in support of the no reasonable prospects of success limb of its application. The respondent said the issue of whistleblowing was not raised until the claimant's appeal against dismissal and even then, was not about S.228 Companies Act 2006. The respondent submitted that the litigation would not have continued/taken place had it not been for the claimant's cynical and untruthful whistleblowing claim."
"34. On 5 February 2018, the respondent made a without prejudice save as to costs offer to the claimant in settlement of all of his claims, including a putative high court claim in relation to shares. That claim was never before the Tribunal and/or within the Tribunal's jurisdiction.
35.The offer was expressly stated to include the claimant's unfair dismissal claim and was also expressly stated to be on a commercial basis. The whistleblowing claims were stated to be 'wholly without merit'. The offer was for £200,000, including breach of contract claims. The claimant was forewarned of an application under Rule 76 if the offer was refused.
36.This offer was rejected. This correspondence was in the claimant's bundle for the Costs Hearing. The claimant's reply was not in the bundle. The claimant said in submissions it was not about the money. The Tribunal asked the claimant if he had said in his response said he was seeking a declaration. He said he had but there was no correspondence in the bundle at all in relation to his response.
37.There was a further offer made to the claimant without prejudice save as to costs after the Hearing had taken place but before the Tribunal had decided the case. This offer was for £55,000 and was expressed to be in the context of the respondent's assessment of the claimant's case and evidence at trial and in relation to the threatened outstanding High Court claim. This offer was rejected too. The response to this letter was also not in the bundle.
38.The Tribunal noted that the claimant, in his written skeleton argument for the Costs Hearing was relying on the case of Telephone Information Services v Wilkinson 1991 IRLR 148 in which case an offer from the respondent for the maximum Unfair Dismissal claim had been refused in circumstances where an express declaration had been sought. That had not happened in this case. The claimant would thus have appreciated the potential relevance of that factor, yet there was no evidence before the Tribunal of the claimant's written response via his Solicitors after the offer was made on 5 February 2018. The Tribunal thus found, on a balance of probabilities, that there was no such request made."
"64. The Tribunal first considered the respondent's application for costs based on its assertion that the claimant's whistleblowing claim had no reasonable prospect of success.
65. The Tribunal considered in some detail its own conclusions in paragraph 119 of the Liability Judgment which set out multiple reasons why the Tribunal concluded that the claimant did not have a subjectively held belief that the disclosure of information relied upon was in the public interest. Those reasons are not repeated herein but they were all very compelling reasons why the Tribunal concluded as it did, in particular that the claimant only believed he was raising a 'technical' breach with the respondent. The Tribunal also noted its conclusion and remarks on the triviality and inadvertency of the breach referred to in paragraph 123 of the Liability Judgment and that the claimant himself was prepared to send on a memorandum of terms to the Solicitors, copied to Mr Shah, without qualification, in purported compliance with S.228 CA, knowing that on his case, most of the terms were not agreed (paragraph 119, bullet 4 of the Liability Judgment). This was wholly contradictory to a Director holding a subjective belief that the reporting of the S.228 CA breach was in the public interest.
66. The Tribunal concluded in the light of its own conclusions that the claimant knew or ought to have reasonably known that he did not have a subjective belief in the public interest and that even if he did, it was not objectively reasonable. With regard to the latter, the Tribunal considered its own conclusion in paragraph 122 of the Liability Judgment and found it particularly notable that the claimant did not assert a reference to whistleblowing until after his dismissal and that when he did, it was not in reference to the S.228 CA breach issue at all, but something altogether separate which never formed part of his claim.
67. The whistleblowing claim was on any analysis the key and main claim of the claimant. The escalating and considerable schedules of loss made that plain. There was no prospect of the sums being sought being 'awardable' unless the statutory cap on an unfair dismissal claim was removed.
68. The Tribunal has concluded in its liability Judgment that none of the detriments relied upon by the claimant had occurred. This view was expressed in the alternative to the conclusions that the claimant did not have a subjective belief and if he did, was not objectively held. Conclusions in the alternative are not uncommon and are open to be made by a Tribunal. The alternative conclusions do not undermine or dilute its earlier conclusions. Within the context of a costs application where the prospects of success are being analysed, the Tribunal concluded that the alternative 'in any event' conclusions of no detriment did in fact have force in support of such an application rather than if some or all of the detriments were found to have occurred. This was not a case where the claimant would have succeeded on his claims for detriment or detriments had his disclosure of information been found to be a qualifying protected disclosure.
69. In relation to at least 2 of the key components of the disciplinary case against the claimant, there was a complete answer as to the reason why the claimant had been charged – first, his repeated refusal to provide changes/comments on his contract in a marked up Word document and his refusal to provide S&W emails as requested by Mr Shah. In respect of both, the Tribunal has already concluded in its liability judgment that the claimant's 'conspiracy case' was hopeless and flawed (paragraphs 138 & 141). This fundamentally undermined the claimant's assertion on his case that the reason (or principal reason) why he was dismissed was the whistleblowing.
70. The Tribunal thus concluded that the whistleblowing claim had no reasonable prospect of success and this was known or ought to have been known to the claimant. It was the main reason why the case had not been capable of a commercial resolution. The claimant had turned down, unreasonably, a £200,000 offer, wherein the respondent had expressly stated the whistleblowing claims to be wholly without merit. The pursuit of the whistleblowing claims was the main reason why the Hearing was listed for the number of days it was and before a full panel. It was the main reason why the respondent had to call the number and/or nature/extent of its evidence and documentation running to several lever arch bundles and a volume of witness statements and rebuttal witness statements from the claimant. The overwhelming share of the preparation was engaged on the whistleblowing claims under S.47B and S.103A - to advance them or to resist them.
71. In addition, the claimant's conduct in relation to his conduct of the proceedings was unreasonable – collectively for the all the reasons set out in the Tribunal's findings and conclusions in its liability judgment, in particular, under its credibility findings, including by way of emphasis being dishonest and unreasonably accusing others of fabrication in furtherance of his case and in so doing causing or risking reputational or economic harm to them. That was the effect. The basis of the claimant's own costs application was about disclosure, yet it was his own position on multiple requests for disclosure which ultimately exposed the claimant. In addition, the claimant unreasonably turned down an offer of £200,000 intertwined with submitting increasing and grossly exaggerated/inflated compensation in his schedules of loss, ultimately seeking £1.464 million plus an uplift. The offer was way above the Statutory maximum for 'ordinary' unfair dismissal (and in circumstances where no other breach of contract claim was ever advanced). No declaration (for unfair dismissal or otherwise) was sought, even if it had been, the Tribunal was not satisfied that it would have been in the overriding interest of proportionality or saving expense to (still) pursue the claim.
72. In considering whether to exercise its discretion to award costs in relation to the threshold being met in relation to both limbs of the respondent's costs application, the Tribunal noted that the claimant was represented by counsel and had previously been represented by Solicitors. He knew or ought to have known the stakes of pursuing a bad claim and of not conducting himself reasonably. In addition, the nature and gravity of his conduct was extremely serious. He gave dishonest evidence under oath. He made very serious allegations of fraud against at least 2 other employees causing actual or risking significant harm to reputation and/or livelihood to those individuals. The whistleblowing claim, (which also had no reasonable prospect of success), risked significant reputational and/or financial risk to the respondent and the individual employees who were targeted by that claim."
"80. The Tribunal concluded the respondent's costs of the costs Hearing should be met by the claimant. The Tribunal had regard to the claimant's conduct referred to in the respondent's skeleton argument, paragraph 15 and in its submissions in paragraph 22.
81. The claimant had not provided a statement of means, in breach of the Tribunal's Order. In evidence, the claimant referred to a lower value of his flat (£600,000) which was a figure lower than he had paid for it 7 years earlier, without explanation. He also submitted a document which stated it was a 1-bedroom flat when he knew it wasn't. The Tribunal concluded he did this to distinguish the value from that of the other 2-bedroom flat, particulars for which he had submitted, which had a January 2020 value of £735,000. This was misleading. The claimant was also evasive about the disposal of his savings and the amount of those savings. The Tribunal also concluded that the claimant had also inflated his own costs application to negate and detract from the Respondent's application, not because his own application had any merit. The claimant referred almost exclusively to the liability judgment being wrong. That was an improper basis to defend the costs application.
82. The Tribunal exercises its discretion to award the respondent's costs of £20,000 as it considers the claimant's conduct to be serious and wilful. The respondent's overall costs were £28,000. The claimant sought advice and was represented by solicitors in relation to the costs applications until September 2021. He would thus have known, or ought to have known of the risks involved. The respondent was reasonable in continuing to instruct Mr Laddie QC for the Costs Hearing, which took place over 2 days and the preparation for which would have been disproportionate owing to the sizeable bundle and substantial witness statements submitted by the claimant. The same means consideration as above have been taken into account in relation to the costs Hearing too."
The Liability Appeal
Ground 11
Ground 9
The Costs Appeal
Ground 1
Ground 2
Ground 3
"It is, we think, important for an ET, when it is dealing with the question whether the conduct of litigation is unreasonable, to keep in mind that in many (though not all) circumstances there may be more than one reasonable course to take. The question for the ET is whether the course taken was reasonable; the ET must be careful not to substitute its own view but rather to review the decision taken by the litigant."
"So, once it is appreciated that the true task of the ET was to examine why she took the decision to refuse the offer and whether that decision was within the parameters of reasonableness, a key question may be whether it was reasonable for her to hold these underlying views about her case. The question … might also arise: was it reasonable for her to wish to have her case determined by the ET?"
Ground 4
"Any costs required by an order under this rule to be taxed may be taxed in the county court according to such of the scales prescribed by the county court rules for proceedings in the county court as shall be directed by the order."
"29. Then, as to quantification of costs, Mr Galbraith-Marten referred to Rule 12 (6) supra as enabling costs to be taxed on "Such of the scales prescribed by the County Court Rules for proceedings in the County Court as shall be directed by the order". That Rule, he points out, makes no provision as to the basis of such taxation. There is therefore no jurisdiction, he argues, to order a taxation on the indemnity basis and in any event, even if there had been, in point of discretion there was no sufficient reason to order taxation to be on that basis. He does not quarrel (in this part of his case) with the requirement that the scale of costs should be "The higher County Court scale" - namely scale 2.
30. The appellants' argument that there is no jurisdiction to order an indemnity basis of taxation transpired to depend on Order 62 Rule 12 of the Rules of the Supreme Court which provides at (3):-
"(3) Where the Court makes an order for costs without indicating the basis of taxation or an order that costs be taxed on [a] basis other than the standard basis or the indemnity basis, the costs shall be taxed on the standard basis".
Mr Galbraith-Marten argues that consequently, as Rule 12 (6) is silent as to the basis of taxation, the costs must be taxed on the standard basis. However, as Mr Booth for the Respondents points out, Order 62 Rule 12 (3), even if otherwise applicable (which he accepts it is) deals, so far as relevant, only with the position where the Court makes an order for costs "Without indicating the basis of taxation". Here the Tribunal specifically did indicate a basis - the indemnity basis. Order 62 Rule 12 (3) thus has no application to exclude the indemnity basis. The fact that Rule 12 (6) of the Industrial Tribunal Rules does not in terms provide for a basis of taxation to be specified is without significance, says Mr Booth, as every order for costs has to be on one of two bases - the standard or the indemnity - and that that is as much the case under the County Court Rules (to which IT Rule 12 (6) refers) as it is in the High Court - see e.g. the County Court Practice 1998 pages 1656-1657. We accept Mr Booth's argument; nothing in Rule 12 (6) prohibits an order, in an appropriate case, for the taxation to be on the indemnity basis."
"…by way of detailed assessment in a County Court in accordance with the Civil Procedure Rules 1998 … as shall be directed by the order."
"So when should an assessment on the indemnity basis be ordered? In civil proceedings in the courts, costs will be assessed on the indemnity basis rather than the standard basis where the conduct of the party has taken the situation away from the norm. The norm in civil proceedings in the courts has been that the unsuccessful party would be ordered to pay the costs of the successful party. That is to be contrasted with proceedings in employment tribunals where it is only in the particular circumstances identified in rule 40(3) that a party will be ordered to pay the other party's costs. In our view, therefore, costs incurred in proceedings in employment tribunals should only be assessed on the indemnity rather than the standard basis when the conduct of the paying party has taken the situation away from even that very limited number of cases in the employment tribunal where it is appropriate to make orders for costs. That is why we think that the employment judge was right to say that it was very rare for an order to be made for costs to be assessed on the indemnity basis. In our opinion, it was open for the reasons which the employment judge gave to treat this case as one of those very rare cases in which such an order was appropriate. ..."
"…by way of detailed assessment carried out by a County Court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles;"
Ground 7
"The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring BNP Paribas to prove that specific unreasonable conduct of Mr Macpherson caused particular costs to be incurred."
"The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances."
Outcome