The Claimant pursued claims of unlawful direct race and sex discrimination (together with claims of indirect disability discrimination which were, in the event, withdrawn on day one of the hearing) and a claim for constructive unfair dismissal.  The claims were all resisted. On day 3 of the hearing, it transpired that the Claimant had diary notes of conversations which should have been disclosed to the Respondent. She then withdrew her claims and the Respondent applied for a wasted costs order against her and her representative. The ET made a wasted order against the representative (but not the Claimant) on the basis that there was a negligent failure to comply with disclosure obligations causing unnecessary costs to be incurred by the Respondent in the substantive proceedings, and it was therefore just to make such an order in the circumstances. The representative appealed.

The EAT allowed the appeal. The ET's finding of negligence was in error in circumstances where privilege was not waived and it had no means of establishing what advice was given to the Claimant about disclosure. Further, the necessary element of breach of duty to the court was not considered by the ET. Finally, the causation finding was flawed by a failure to address the question whether the Claimant would have continued with the claim irrespective of any negative advice she received.