An employment judge has refused an application for wasted costs against a lay representative after finding he only ‘did his client’s bidding’.

Employment judge Brewer had struck out claims in M Clements v Secretary of State for Justice and N Stewart  which centred on detriments on health and safety grounds.

In an application for costs brought by the Secretary of State for Justice, the judge ordered Clements to pay £50,186.50 to the justice secretary. However an application for wasted costs against Clements’ representative, named as Mr S Martins, was dismissed.

The wasted costs order application was made after Martins replied to the tribunal stating that this was the first time during proceedings that costs had been raised. This, the judgment said, ‘gave rise to the possibility that Mr Martins had not or not properly advised his client’.

Considering if a wasted costs order was appropriate, the judge said despite ‘one or two lapses’ by Martins ‘for example in relation to his assertion that costs had not been previously mentioned’, there was not sufficient material to conclude that ‘he acted improperly unreasonably or negligently’.

He added: ‘In the end the representative acts according to his or her client’s instructions. Given all I have heard, I do not consider that I am in any position to find other than Mr Martins did his client’s bidding, and it was his client’s behaviour which prevented Mr Martins from dealing with this case more appropriately. I accept that he could have simply come off record and perhaps it is to his credit that he did not.’

The judgment found Clements had behaved unreasonably, deliberately and persistently failed to comply with tribunal orders, and had pursued claims with no reasonable prospects of success.

It added: ‘In all the circumstances I am satisfied that the conduct of the claimant’s case proceeded in a way which was unreasonable, disruptive, and abusive. Thus, the jurisdiction to make a costs award is engaged.’