In dealing with an application for costs, can a tribunal take account of the positive legal advice received by an unsuccessful Claimant?
Yes, held the EAT in Brooks v Nottingham University Hospitals NHS Trust.
Whilst reliance upon advice is a factor that may be taken into account by the tribunal, positive professional advice will not necessarily insulate a Claimant against a costs award.
In the absence of any evidence as to the actual advice given and the basis on which that advice was provided, it would be a reasonable for a tribunal to assume that a legally represented Claimant has been properly advised as to the risks and weaknesses of his or her case and of the potential for an adverse costs order.
Where privilege was waived, such evidence would ordinarily need to explain the instructions given, the context in which the advice was provided and the evidence considered.
Thanks to Tim Kenward of 7 Harrington Street Chambers for preparing this case summary.