McPherson v BNP Paribas (London Branch), CA, 13 May 2004 EWCACiv 569z

Unreasonable behaviour triggers costs award: McPherson claimed unfair constructive dismissal against BNP. Shortly before the hearing was due, he was granted an adjournment as he had a potentially serious heart complaint that needed treatment.

He subsequently failed to disclose remuneration details from his new employer, and refused to confirm whether he’d had the recommended treatment for his heart condition.

Three weeks before the new hearing, his solicitors suggested mediation instead, but BNP refused and he withdrew his claim. BNP applied for a costs order and the tribunal ordered McPherson to pay BNP’s costs (approximately £90,000). The Employment Appeal Tribunal (EAT) upheld this decision and he went to the Court of Appeal.

The court held that in deciding whether to award costs against a claimant who had withdrawn a complaint, the crucial question was whether the claimant had conducted the proceedings unreasonably and not whether the withdrawal of the case was unreasonable (which might otherwise deter applicants from withdrawing non-meritorious claims).

In this case, there was sufficient evidence to justify the tribunal’s conclusion that the unreasonable conduct began when McPherson requested an adjournment on medical grounds, and the costs order was reduced accordingly.

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