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Cost Awards Against Litigants in Person

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If you have ever been involved in an employment tribunal claim against an unrepresented individual, you will know how challenging the process can be. Where a litigant in person is setting out their own case, it can be unclear what is alleged, and difficult to extricate valid legal claims from other complaints.

Employment tribunals recognise that litigation is daunting for self-represented Claimants (often intervening to assist them) and it is uncommon for a tribunal to award costs against an unrepresented individual for failing to present their claim properly. However, in the case of Liddington v 2gether NHS Trust, the employment tribunal and EAT held that the failure of a litigant in person to provide proper details of her claim was unreasonable conduct and made a costs award in favour of her employer.

Ms Liddington was a community practitioner working for an NHS Trust. She alleged that, after making a safeguarding referral in relation to a patient care issue at a private care home (which she claimed was a protected act of whistleblowing), she was subjected to a number of detriments by her employer and was ultimately dismissed. The employment tribunal did not feel that Ms Liddington had provided adequate details of her claim and, over the course of a number of preliminary hearings and in correspondence, attempts were made by three different employment judges to help her to set out her claim more clearly. She failed to provide the dates and details requested and eventually was ordered to pay a deposit order as a condition of continuing her claim, but failed to comply. She ended up withdrawing her claims.

The employment tribunal acknowledged that the standards applied to a lawyer should not be applied to a lay person and said that it did not expect Ms Liddington to produce a detailed legal document. However, she had failed to provide basic information regarding what was allegedly said or done, by whom and when. Crucially, she had been unable to pinpoint dates for the acts she said had occurred as a consequence of whistleblowing and, in fact, conceded that some of these incidents may have pre-dated her disclosure. Interestingly, the employment tribunal made clear that Ms Liddington had not been obstructive but had simply failed to prepare her case adequately. Importantly, she had not been hampered by stress, anxiety or illness.

The EAT agreed with this decision. But one suspects this case may be the exception rather than the rule. A failure to particularise key dates will not normally be unreasonable conduct. However, it shows that litigants in person are not immune from being ordered to pay costs where there has been a repeated failure to provide crucial information.

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