Tribunal: Solicitor was not unreasonable in approach to settlement
A former managing partner has been ordered to pay costs for trying to mislead an employment tribunal in his claim against his firm.
However, Michael Willis will not have to pay anything like as much as Sheffield-based GWBHarthills had sought.
The long-running claim followed Mr Willis’s absence due to ill-health from July 2018 – initially due to cancer and later depression and then stress – and he retired from the partnership in March 2021.
He brought two claims against the firm and partners Hester Russell and Elizabeth Lord. In the first, the respondents admitted both direct and indirect disability discrimination, as well as a failure to make reasonable adjustments. There was no hearing for this.
The conduct started in November 2019 and stopped on 7 January 2020 following the intervention of Mr Willis’s solicitors and corrective action being taken.
The second claim of disability discrimination and victimisation was rejected, with the tribunal “very reluctantly” finding that Mr Willis “was not a truthful witness” and tried to mislead it “in some material aspects by the evidence he gave”.
At the remedy hearing, which considered both findings, the tribunal rejected his claim for £80,000 in damages for personal injury, injury to feelings and special damages in relation to the first case. This was upheld last summer on reconsideration.
Mr Willis has already been ordered to pay costs, limited to £210,000, for his unreasonable conduct of the second claim. In the latest hearing, before Regional Employment Judge Robertson in Leeds, the respondents sought costs capped at £277,000 for his conduct of the first claim.
The judge rejected Mr Willis’s urging to go behind the findings of the earlier tribunal. “They found that the claimant cannot genuinely have believed that he had been expelled in November or December 2019. They found that the claimant had not suffered injury to feelings or psychiatric injury when he was admitting to Aviva that he was unable to work.
“These were important components of the claimant’s remedy claim and the [earlier tribunal under a different judge] found that the claimant lied in his evidence about them.
“Based on those conclusions, I find that the claimant acted unreasonably within rule 76(1)(b) in giving evidence at the remedy hearing in this case that was deliberately untrue about important components of his remedy claim.”
At the same time, Judge Robertson said, the respondents had submitted to judgment in respect of acts of admitted unlawful disability discrimination and the remedy claim “was not in any sense unarguable: the respondents had attempted to remove the claimant from the firm and there was expert evidence in support of the psychiatric injury he contended he had suffered”.
He decided to make a costs order but confined it to the respondents’ counsel’s fees for the remedy hearing, which were £32,500, subject to detailed assessment.
Judge Robertson rejected the respondents’ argument that Mr Willis had acted unreasonably in his approach to settlement, even though he considered the amount the solicitor sought – initially £3m – to be “unrealistic”.
In the early stages, there was “little evidence… of any realistic wish to settle… but on the other hand, the respondents themselves withdrew from judicial mediation in August 2020 on the ground there was too much between the parties”.
The judge said: “Experience says that even where there appears to be much between the parties, mediation may find a way through. In my judgment, the respondents cannot properly criticise the claimant for declining to participate in mediation when they had themselves done the same thing.”
A final bid to settle in summer 2022 came close but foundered on the respondents’ requirement that their costs incurred since the expiry of an offer should be deducted from it.
“I understand why the respondents adopted that position, but I am unable to conclude that the claimant’s rejection of that final position was unreasonable,” the judge said.
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