The summary below is that provided by HHJ Shanks as part of the EAT judgment

C brought complaints of age and race discrimination (including a claim for personal injury) in the ET against Rs 1-4. She was represented by a firm of solicitors, R5, under a conditional fee agreement. On the fourth day of the FH she settled the case for £12,000 (to include the personal injury claim) on the advice of R5 and counsel instructed by them and the claim was dismissed by the ET. Before she agreed to settle on those terms she had been told in an email from R5 that if she settled the case they would charge no more fees than the £12,000 but that if she did not settle the case they would terminate the CFA and she would be liable to pay their costs in full under it. Having settled the claim she then made applications for reconsideration and revocation of the dismissal of the claim and for a wasted costs order against R5 on the basis that she had been the subject of an improper threat by R5 that if she did not accept the offer from Rs 1-4 she would have to pay them £41,000 in costs.

Her applications were refused because the ET found that R5 acted properly in giving the advice and making the statement that the retainer would be terminated and C would become liable for costs to them under the CFA and that she was not subjected to any economic duress (which may have provided the basis for revoking the ET’s dismissal judgment). C appealed and the appeal was allowed to proceed at a rule 3(10) hearing on the basis that it was arguable that under the terms of the CFA, the liability for costs to R5 on the termination of the retainer would have been £25,000 and not £41,000 because R5 would not have been entitled to the 60% uplift provided for in the CFA.
The EAT assumed for the purposes of the appeal that this was correct as a matter of interpretation of the CFA and that R5 had in fact said that C would have been liable for the full £41,000 if she did not settle the case; but the appeal was nevertheless dismissed because: (1) The point about the proper interpretation of the CFA and the amount that would have been due on a termination of the CFA by R5 had not been raised or argued before the ET at the hearing of the applications for reconsideration of the dismissal of the claim and a wasted costs order; and furthermore (2) At least in relation to the application to reconsider and revoke the dismissal of the claim, the EAT was satisfied that the point would have made no difference to the conclusion by the ET that there was no economic duress and that the dismissal judgment should not be revoked.