Written by The recent EAT case of Midgley v Vossloh Cogifer UK Ltd exemplifies the manner in which senior legal professionals, including a prominent Head of Employment Law and a leading KC barrister, can manipulate procedural nuances to achieve a strategic advantage, thereby undermining the judicial process. In this case, a costs award of £10,000 was erroneously levied against the claimant. Notably, the case was heard in Leeds, where the respondent’s solicitor, Edward Flanagan, holds a position as Secretary of the Leeds Employment Tribunal User Group, raising additional ethical concerns regarding potential conflicts of interest.
At the core of this matter was a ‘without prejudice’ costs warning letter issued by the respondent’s solicitor to the claimant, Mr Nigel Midgley. Crucially, when this letter was submitted to the Employment Tribunal, it had been redacted to remove references to its ‘without prejudice’ status. This selective redaction was pivotal, as it led the Tribunal to consider and rely upon a document that should have been deemed inadmissible. Consequently, the Employment Appeal Tribunal determined that the Employment Tribunal had been misled, which constituted an inadvertent error of law, ultimately resulting in the quashing of the £10,000 costs order.
The Employment Tribunal’s reliance on this improperly redacted document was instrumental in its decision to award costs. Mr Midgley, who was self-represented and thus lacked the benefit of formal legal representation, faced the considerable legal resources wielded by the respondent’s solicitor and counsel. The EAT’s findings make it unequivocally clear that the redaction had a direct and prejudicial impact on the Tribunal’s ruling. Specifically, the unredacted version of the letter explicitly stated that no application for costs would be pursued if Mr Midgley chose to withdraw his claim, a fact that was intentionally obscured.
The actions of Mr Flanagan, who argued that the redactions were intended to remove admissions while preserving other parts of the correspondence, present a significant ethical dilemma. The Employment Appeal Tribunal found that this selective redaction deprived the document of essential context, thereby misleading the Tribunal. This type of conduct raises profound concerns regarding the ethical duties of solicitors and barristers in the course of litigation.
The implications of this case are far-reaching, as they illustrate the potential for a miscarriage of justice when legal professionals seek to exploit procedural technicalities, particularly against litigants in person who may not be fully conversant with the intricacies of legal privileges such as ‘without prejudice’ communications. Such actions not only erode the integrity of individual proceedings but also undermine public confidence in the fairness of the judicial system.
The governance of tribunals and the requirement for impartiality in adjudication are also called into question by this case. The fact that Mr Flanagan serves as Secretary of the Leeds Employment Tribunal User Group further complicates matters, introducing an additional layer of perceived partiality and conflict of interest that should not be disregarded.
In response to these events, an application for costs or wasted costs has been made against the solicitors involved. Although the outcome of this application remains to be seen, it is anticipated that future proceedings could prompt broader reflections on the ethical boundaries of litigation conduct. By bringing attention to this issue, it is hoped that greater scrutiny and transparency can be brought to bear on the conduct of legal practitioners, thereby fostering adherence to the highest ethical standards. Misleading the court, particularly to secure an undue advantage over an unrepresented party, is a practice that must be rigorously challenged and condemned.
This case serves as a stark reminder of the necessity for vigilance in safeguarding the integrity of legal proceedings, especially in cases involving litigants in person. The legal profession must scrutinise its handling of ‘without prejudice’ communications to ensure that the actions of its representatives do not compromise the fundamental tenets of justice.
References
1. Judgment Document: The full Employment Appeal Tribunal judgment can be found here: Midgley v Vossloh Cogifer UK Ltd (2024) EAT 149.This document provides comprehensive details about the case, including the Tribunal’s reliance on a redacted letter that was misleadingly presented as admissible evidence.
2. Employment Tribunal Rules and Procedures: For a deeper understanding of the Employment Tribunal’s rules and procedural fairness requirements, refer to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
3. Guidance on ‘Without Prejudice’ Correspondence: For guidance on the ‘without prejudice’ principle and its use in legal communications, the Law Society’s Practice Note on Without Prejudice Communications can be a helpful resource.
4. Judicial Guidance on Litigants in Person: The Judicial College’s Equal Treatment Bench Book provides essential guidance on how judges should deal with litigants in person, ensuring they receive fair treatment.
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Disclaimer
This article is intended for informational purposes only and does not constitute legal advice. The details provided are based on publicly available documents and sources, and every effort has been made to ensure accuracy. However, legal outcomes can vary based on individual circumstances. If you require legal assistance, please consult a qualified solicitor or barrister. The views expressed here are personal opinions and do not necessarily reflect those of any professional organisation or entity involved.