The Employment Appeal Tribunal (EAT) has held in Brooks v Nottingham University Hospitals NHS Trust that when considering an appeal against an award for costs, tribunals can take into account whether the claimant relied on legal advice indicating that they had a reasonable chance of success. However, positive legal advice does not automatically protect claimants against an award.
Mr Brooks, a consultant plastic surgeon, made 18 protected disclosures relating to health and safety concerns. He claimed that, having made those disclosures, he then experienced a number of detriments by his employer. These included being subjected to fabricated allegations, repeated and extended harassment, chronic undermining and marginalisation.
Although the tribunal accepted that Mr Brooks had made several protected disclosures and had suffered a number of detriments, it dismissed his claims because he could not establish a causal connection between the detriments and the disclosures. This was because of correspondence drafted by Mr Brooks which raised very similar complaints, but which he had written prior to making any disclosures. It did not accept his conspiracy theory.
His employer then made an application for costs against him on the basis that his claims had never had any reasonable prospect of success and he acted unreasonably in pursuing them.
Although Mr Brooks had not been deliberately untruthful or dishonest, the tribunal held that he had a distorted perception about what had happened despite receiving legal advice on the matters he had raised, according to his own evidence. It therefore ordered Mr Brooks to pay his employer’s costs which were in the region of £170,000.
Mr Brooks appealed arguing that the decision to award costs against him was perverse. In particular, he argued that the tribunal was not entitled to conclude that he had ignored legal advice that his claim had no prospect of success, and that he had not been dishonest.
Although relying on legal advice may be taken into account as a factor by the tribunal, it does not automatically insulate a claimant against an award for costs as there can be many reasons why an adviser might reach a different view about an individual’s prospects of success compared to a tribunal.
In this case, Mr Brooks had told the tribunal that he had been advised that he had a good case. However, he failed to disclose any documentation to back up this assertion. That being so, the EAT held that it was entirely reasonable for the tribunal to assume that he had been properly advised as to the risks and weaknesses in his case and of the potential for an adverse costs order.
Likewise, the EAT held that there was no rule of law that a tribunal will only use its discretion to award costs where the claimant has been dishonest (although it would probably make it more likely). This is because the test is not whether there has been dishonest conduct but whether there was unreasonable conduct in bringing proceedings.
The test of reasonableness is an objective one which will encompass a wide range of matters, one of which would be deliberately dishonest conduct, but which might also include an unreasonably distorted perception of matters. It was for the tribunal to judge whether that perception was unreasonable in the circumstances. The tribunal in this case, having heard evidence over 27 days, was entitled to conclude that Mr Brooks’ distorted perception was unreasonable in the circumstances.
The EAT therefore dismissed the appeal.
The claimant backed himself into a corner with his approach. Although he said he was advised by a lawyer that his claims had reasonable prospects of success, he did not produce any evidence of that despite it being easy to do – he could have given the tribunal a copy of that advice. He chose not to even though that did not sit comfortably with his other defence of having been honest throughout.
These things are not incompatible, and there could be very good reasons for his approach, but it doesn’t look good, especially in the face of such a large potential costs liability. It also shows the importance of understanding what you need to argue; if the test is one of reasonableness, then focussing on honesty is only ever going to partially address that test. That is especially so where a tribunal has already found that you had “been shown to be distorting the truth in relation to a central theme of [your] evidence”.