The Claimant was represented by a barrister when she brought various claims to the ET including unfair dismissal, age discrimination and other monetary related claims. The Respondent offered to settle but the offer was rejected. The claims were dismissed at the ET, the ET saying that they did not have jurisdiction to hear the claims as the Claimant was self employed. The Respondent applied for costs against the Claimant and wasted costs against the barrister alleging that he was negligent, unreasonable, or improper. The application focussed on the assertion that the barrister had been negligent. There was one specific assertion of unreasonable conduct: bringing and pursuing the unparticularised age discrimination complaint. The ET dismissed both applications and the Respondent appealed against the wasted costs decision.

The EAT dismissed the appeal. The first ground of appeal was that the ET had misdirected itself to the correct test for "unreasonable" or "improper" conduct required for the award of wasted costs. The application for costs advanced before the ET focussed almost entirely on the term “negligent”. The only reference to unreasonable conduct in the skeleton argument for the costs hearing produced by the Respondent was to the unparticularised age discrimination complaint. In those circumstances it was not surprising that the Employment Judge focussed on the allegations of negligence. The finding that there was no evidence of abuse of process also meant that the very limited assertions of "unreasonable" and "improper" conduct were properly dismissed. The second ground of appeal, asserting that the decision that the barrister did not act improperly, unreasonably, or negligently was perverse, was also rejected. There was no proper basis to overturn the factual finding of the ET that the barrister was not guilty of anything akin to abuse of process. The third ground of appeal, asserting that the ET made a perverse finding that the barrister should not be held to have acted improperly, unreasonably, or negligently simply because the claim was doomed to fail, was also dismissed.