Employment Appeal Tribunal Dismisses Wasted Costs Claim Against Hill Dickinson LLP
The Employment Appeal Tribunal has dismissed an appeal by Dr C M Day, confirming that no wasted costs order will be issued against Hill Dickinson LLP.
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Tribunal Upholds Decision in Long Running Costs Dispute
The Employment Appeal Tribunal (EAT) has dismissed an appeal by Dr C M Day, confirming that a previous decision to refuse a wasted costs order against solicitors Hill Dickinson LLP must stand. The judgment, delivered by The Honourable Mrs Justice Stacey DBE, brings further clarity to the complex litigation surrounding the whistleblowing claims brought by Dr Day against Health Education England (HEE).
Background to the Wasted Costs Application
The application for wasted costs arose from allegations concerning the non-disclosure of specific documents, known as Learning and Development Agreements (LDAs). Dr Day argued that the failure by HEE's legal representatives, Hill Dickinson LLP, to disclose these documents during earlier proceedings was improper, unreasonable, or negligent. He contended that this failure forced him to incur significant costs while resisting a strike out application.
However, the original Employment Tribunal (ET) found that the legal team was unaware of the specific agreements during the initial stages of the litigation. Furthermore, the ET concluded that the contents of the undisclosed documents did not materially differ from information already available to the claimant through other sources, including the Gold Guide.
EAT Findings on Legal Conduct and Privilege
In her judgment, Mrs Justice Stacey DBE emphasised that the test for a wasted costs order is rigorous. It requires proof that a representative's conduct amounted to an abuse of the court's process, causing the applicant to incur unnecessary costs. The EAT found no error in the ET's conclusion that the threshold for such a sanction had not been met.
The appeal also addressed the role of legal professional privilege. Dr Day argued that the ET erred by allowing the respondent to rely on privilege as a shield. The EAT rejected this, noting that the tribunal had correctly applied established legal principles, including those set out in Ridehalgh v Horsfield. It held that the ET was entitled to consider the evidence without drawing adverse inferences from the non-waiver of privilege, particularly where reasonable explanations for the conduct existed.
Conclusion
The EAT's decision confirms that the ET acted correctly in its assessment of both the law and the facts. Because the appeal failed on its primary grounds, it was unnecessary for the EAT to consider the remaining arguments regarding the construction of previous settlement agreements. The dismissal of the appeal marks the end of this specific challenge to the legal conduct involved in the proceedings.
Read the entire judgment here: Day v Health Education England [2026] EAT 97
