How Solicitors and Barristers Can Mislead the Court: A Case Study

The case issue

The reported Employment Appeal Tribunal decision in Midgley v Vossloh Cogifer UK Ltd concerns a costs order of £10,000 made against the claimant, Mr Nigel Midgley. The central issue, as described in the draft material, was the tribunal’s reliance on a redacted costs warning letter that had originally been marked “without prejudice”.

The importance of the case lies in the practical effect of context. A document may look admissible, neutral or probative when presented in one form. It may look very different when restored to its original form, including its heading, privilege status, settlement context and full wording.

On the account given, the EAT concluded that the tribunal had been misled by the redacted form of the document and that this produced an error of law. That conclusion, if accurately reflected in the judgment, is significant. It shows that redaction is not merely an administrative exercise. It can alter the legal meaning and procedural fairness of the material placed before the tribunal.

The redaction problem

The draft material states that the respondent’s solicitor submitted a costs warning letter to the Employment Tribunal after removing references to its “without prejudice” status. It also states that the unredacted version made clear that no application for costs would be pursued if Mr Midgley withdrew his claim.

If that is an accurate summary of the judgment, the procedural concern is serious. A tribunal considering costs needs to understand the true status and context of the material relied on. A redacted extract that removes the settlement or privilege context may risk presenting a partial and distorted picture.

1. 1
   Original communication.

   A costs warning letter is said to have been sent in a “without prejudice” context.

2. 2
   Selective redaction.

   Material said to identify the privileged or settlement-related context was removed before the tribunal saw the document.

3. 3
   Tribunal reliance.

   The tribunal is said to have relied on the redacted document when making a costs order.

4. 4
   Appeal outcome.

   The EAT is said to have found that the redaction deprived the tribunal of essential context and led to an error of law.

This is precisely the type of procedural issue that can be difficult for a litigant in person to identify in real time. The unfairness may not be obvious until the original document, the redacted version and the tribunal’s reasoning are placed side by side.

The litigant-in-person dimension

Mr Midgley was self-represented. That matters. A represented party may have solicitors and counsel who understand privilege, admissibility, costs warnings, settlement correspondence and redaction practice. A litigant in person may not know how to object, how to identify the privilege issue, or how to explain the unfairness quickly enough during a hearing.

This does not mean that litigants in person should be exempt from costs risk or procedural discipline. Employment Tribunals must be able to manage cases fairly, and costs may be available where the legal test is met. But where a represented party relies on redacted material against an unrepresented claimant, the tribunal must be able to trust that the document has not been stripped of essential context.

Professional conduct and the duty not to mislead

The draft material raises concern about the conduct of the respondent’s legal representatives, including the solicitor said to have been involved in presenting the redacted document and counsel said to have advanced the respondent’s position. Those concerns require precise handling.

It is legitimate to scrutinise litigation conduct where an appeal judgment records that a tribunal was misled by the form in which material was presented. It is not safe, without more, to assert that any named professional deliberately misled the tribunal or acted dishonestly. Deliberate misconduct, professional breach and wasted-costs liability are separate questions requiring evidence, procedure and, where applicable, findings by the relevant tribunal or regulator.

The public-interest issue is therefore framed more carefully: what safeguards should exist when professionally represented parties place redacted settlement-related material before a tribunal, and what consequences should follow if that presentation deprives the tribunal of essential context?

Tribunal governance and perceived conflict

The draft also raises a concern that the respondent’s solicitor, Edward Flanagan, is said to hold a role as Secretary of the Leeds Employment Tribunal User Group. That point should be verified before publication and handled as a perceived-conflict or public-confidence issue, not as a finding of improper influence.

Tribunal user groups can perform legitimate administrative and consultative functions. A role in such a group does not, without more, prove partiality, influence or conflict in an individual case. However, where a case is heard in the same regional tribunal environment, and where the appeal concerns whether the tribunal was misled by material presented by a representative, the public-confidence optics may reasonably be questioned.

The strongest criticism is therefore institutional rather than personal: justice must not only be done, but be seen to be done. Where professional networks intersect with tribunal settings, transparency about roles and safeguards matters.

The reform point

This case, if accurately summarised, should prompt careful reflection on how Employment Tribunals handle redacted material, without-prejudice correspondence and costs applications involving litigants in person. The lesson is not that every costs warning is improper or every professional representative acts unfairly. The lesson is that context is part of fairness.

Practical reform could include clearer directions where costs-warning correspondence is relied on, explicit identification of whether documents are open, privileged or redacted, and a requirement that redactions do not remove context necessary for the tribunal to understand admissibility or fairness.

The integrity of the tribunal system depends on confidence that professional representatives will not use procedural technicality to distort the record. Where that confidence is damaged, the answer is not rhetoric. It is transparent reasoning, careful documentary practice and meaningful accountability where the evidence justifies it.

References and source points

The key source for this article should be the full EAT judgment in Midgley v Vossloh Cogifer UK Ltd, reported in the draft as [2024] EAT 149. Before publication, the citation, link, paragraph references, parties, representatives, costs order and wording of the EAT’s findings should be checked against the judgment itself.

Relevant supporting materials may include the Employment Tribunals Rules of Procedure, the applicable Employment Appeal Tribunal materials, guidance on without-prejudice correspondence, professional-conduct duties and the Equal Treatment Bench Book guidance on litigants in person.