![Willis v GWB Harthills LLP & Others [2025] EAT 79, His Honour Judge James Tayler, Rule 76 Employment Tribunal Rules 2013, Rule 84 Employment Tribunal Rules 2013, Rule 74 Employment Tribunal Rules 2024, Rule 82 Employment Tribunal Rules 2024, Stage 1 Threshold Conduct, Stage 2 Discretionary Decision, Stage 3 Quantum Decision, Ability to Pay, Costs Discretion, Unreasonable Conduct, Capital Assets in Costs Assessment, Family Home Valuation, Equity Release, Joint Ownership of Property, Detailed Assessment, Standard Basis, Profit Share Entitlement, PHI Payments, Costs Capping, Broad-Brush Assessment, Means Assessment, Proportionality of Costs, Discretionary Factors in Costs Awards, Effect on Third Parties, Honesty of Party, Costs Application Principles, Conduct of Proceedings, Stage 4 Bowel Cancer Context, Zoopla Valuation Evidence, Stage 3 Costs Quantum, Shields Automotive Ltd v Greig, Howman v The Queen Elizabeth Hospital Kings Lynn, Jilley v Birmingham and Solihull Mental Health NHS Trust, Arrowsmith v Nottingham Trent University [2012] ICR 159, Vaughan v London Borough of Lewisham (No 2) [2013] IRLR 713, Doyle v North West London Hospitals NHS Trust, County Court Detailed Assessment, Costs Decision in Employment Tribunals](https://tmclegal.co.uk/wp-content/uploads/2025/06/Shutterstock_351049592-80x80.webp)
In this case …
The Defendant firm of solicitors represented the Claimant in a clinical negligence claim in the County Court at Manchester from March 2014 to 21 June 2021.
The claim was related to a surgery the claimant underwent in 2010, which she claimed led to a serious nerve injury causing severe pain and symptoms that affected her ability to work. She was employed as an air stewardess for British Airways, and her case was that her hours and salary had been reduced by two-thirds due to her condition.
On 21 June 2021, the Defendant terminated its contract of retainer with the Claimant due to inconsistencies in the Claimant’s account of her employment and income, which raised concerns about the veracity of her claims.
On 14 September 2021, the Defendant delivered a final Bill of Costs for the work undertaken on the Claimant’s behalf.
The Claimant contended that the Defendant had wrongfully ended the retainer and was not entitled to any payment for its services.
The sole issue to be decided by the court was whether the Defendant wrongfully ended the retainer with the Claimant, and therefore, whether the Defendant was entitled to any payment for its services.
Defendant’s Position
“We may end this agreement (and therefore cease acting for you) in relation to any matter or all matters of yours but only on written notice and for good reason. Examples of a good reason included where you have not given us sufficient instructions… or where we reasonably believe that the relationship between you and us has broken down. If your matter does not conclude, or we are prevented from continuing to act because of our legal obligations or professional rules, we will charge you for any work we have actually done. Our charges will be based on our hourly rates set out in this agreement… If we cease acting for you we shall (where relevant) inform the court… that we no longer act for you and shall apply to be removed from their records. We may charge you for doing so…”
Claimant’s Position
Costs Judge Leonard made the following findings
The Claimant’s Medical Problems
The Judge concluded that the claimant was exaggerating the impact of her medical problems on her life and underrepresenting her active role in the beauty business in order to enhance her damages claim and to oppose the defendant’s claim for costs.
“I do not doubt that the Claimant has experienced, and (as medical evidence exhibited to her witness statement demonstrates) continues to experience severe physical and psychological distress, including pain which seems, on the expert evidence, itself to have a major psychological element. She is entitled to every sympathy for those problems, which may well distort her judgment and her perception of events. It does not follow that she is not to be held responsible for what she says and does. On the evidence that has emerged in these proceedings, I cannot avoid the conclusion that the Claimant has been overstating the effect on her of her medical problems and underplaying her active role in the beauty business, first to support her damages claim and then to resist the Defendant’s claim for costs.”
The Defendant’s File Record
The judge concluded that the defendant’s file record, created by Dr. Handley, was a reliable and accurate record of events. This conclusion was based on the support of other contemporaneous records and Dr. Handley’s credibility as a witness. In contrast, the judge found the claimant’s evidence to be generally not credible.
“One difficulty faced by the Claimant in her attempts to discredit Dr Handley’s file record is that by her own account she was, after her mother’s death in September 2018, so distressed and in such poor health as to lack the capacity to make decisions. Now however she claims to have sufficient recall of key conversations held at the time, to be able to challenge the accuracy of Dr Handley’s notes on the detail of what was said. The two contentions are not consistent.”
The Claimant’s Credibility
The judge found that the claimant’s credibility was severely compromised as she presented conflicting versions of her life. While claiming disability for a clinical negligence claim, she portrayed herself as a successful beautician in her beauty business. He found that she had misrepresented herself on social media and press, engaged in fraudulent activities, and disowned evidence that demonstrated her active role in the business. Additionally, her statements in the Department for Work and Pensions records contradicted her claims of disability.
“The Claimant has admitted to treating celebrity customers Including Victoria Beckham, Jesy Nelson, Petra Ecclestone, and members of the Coronation Street cast. Mr Exall for the Claimant described her business, consistently with her evidence, as a ‘microbusiness’ for family and friends. I hope that Mr Exall will forgive my observing that he presented a very weak case as effectively as one could possibly expect, but the proposition that the Claimant could attract such clients on the back of such a business, thanks to a completely misleading social media profile, does not really bear examination. Whether the Claimant was paid for that work, or (as she says) it was done without charge to raise her profile, is not to the point.”
Responsibility for the Development of the Claimant’s Clinical Negligence Case
The judge found that the defendant did not coerce the claimant into making or maintaining a loss of earnings claim, and the claimant had a tendency to shift responsibility onto others. The claimant’s instructions and claims were inconsistent, and it was Dr Handley who persuaded the claimant to drop the loss of earnings claim. The judge also concluded that the claimant, not Dr Handley, was responsible for the information given to medical experts and that the claimant attempted to pass responsibility for her actions onto the defendant.
“I do not accept that the Defendant in any way coerced the Claimant into making or maintaining a loss of earnings claim, any more than I accept that the Claimant’s union coerced her into making an unfair dismissal claim. The Claimant appears to have a habit of attempting to shift responsibility for her actions on to others, as if she had no will of her own.”
The Claimant’s Other Complaints about the Defendant’s Conduct
The judge found that the claimant’s complaint about the defendant’s failure to investigate her earnings from her beauty business was irrelevant. The claimant provided no evidence or records to substantiate her claims, and her inconsistent statements undermined her credibility. Therefore, the judge considered the claimant’s earnings from the beauty business to be unknown and disregarded her evidence.
“I find it remarkable that the Claimant criticises Dr Handley for not ascertaining the level of her earnings from the beauty business when the Claimant herself in her witness statement has volunteered nothing about the level of those earnings (other than a broad statement that she made no money from “By Kaso”). She has disclosed no records that might substantiate what she says. It was only on reexamination that she claimed to have earned about £2,500 per annum in 2016 and 2017 (notwithstanding that she told the DWP in April 2018 that she had not worked since January 2017), very little in 2018 due to the illness and death of her mother, and just under £3,000 in 2019, with no income to speak of in 2020 or 2021 due to the pandemic…. Under the circumstances, I can attach no weight to that evidence. The true level of the Claimant’s earnings from the beauty business, as far as I am concerned, remains unknown.”
The Expert Evidence
The judge found that the expert evidence presented by the claimant was not helpful and lacked credibility. The claimant had withheld information about her beauty business from the experts, and their reports did not support her claims. The judge noted inconsistencies in the claimant’s accounts and concluded that the expert evidence would have been significantly different if they had been aware of the additional evidence provided by the defendant. The experts also questioned the claimant’s credibility and suggested the possibility of exaggeration or fraud for financial gain.
“As for whether the expert evidence is generally supportive of the Claimant’s case, I must quote this passage from Dr Sharma’s report of January 2019 and repeated in his subsequent reports: ‘Pain is a subjective, self-reported symptom not amenable to independent verification. Only Mrs Hulme can know the true nature and severity of the pain that she suffers. Medical assessment and opinion rely on her being honest and reliable in providing her testimony and being genuine in presentation.’”
The judge ultimately found that Dr Handley had the right to terminate the retainer. The claimant’s dishonesty and failure to cooperate justified the termination. The defendant was accordingly entitled to seek payment of its costs and disbursements from the claimant.
“Dr Handley was in my view entirely correct, on 21 June 2021, to conclude that MPS had raised allegations of dishonesty against the Claimant that were, in accordance with the terms of the retainer, substantive enough to justify its termination.”
CONDITIONAL FEE AGREEMENT | TERMINATION OF RETAINER | CLINICAL NEGLIGENCE CLAIM
“I do not doubt that the Claimant has experienced, and (as medical evidence exhibited to her witness statement demonstrates) continues to experience severe physical and psychological distress, including pain which seems, on the expert evidence, itself to have a major psychological element. She is entitled to every sympathy for those problems, which may well distort her judgment and her perception of events. It does not follow that she is not to be held responsible for what she says and does. On the evidence that has emerged in these proceedings, I cannot avoid the conclusion that the Claimant has been overstating the effect on her of her medical problems and underplaying her active role in the beauty business, first to support her damages claim and then to resist the Defendant’s claim for costs. I will explain that conclusion.” [118]
“In this case, I have to decide whether the Defendant’s file record is, as the Claimant says, inaccurate in critical respects or whether it can be relied upon as a contemporaneous record of events. My conclusion that it is a reliable record derives first from the fact that Dr Handley’s attendance notes are supported by other contemporaneous records and second that its accuracy is vouched for by its creator Dr Handley, whose evidence generally I find to be credible, whereas (for reasons I shall give) I find the Claimant’s evidence generally not to be credible.” [122]
“One difficulty faced by the Claimant in her attempts to discredit Dr Handley’s file record is that by her own account she was, after her mother’s death in September 2018, so distressed and in such poor health as to lack the capacity to make decisions. Now however she claims to have sufficient recall of key conversations held at the time, to be able to challenge the accuracy of Dr Handley’s notes on the detail of what was said. The two contentions are not consistent.” [123]
“I have seen nothing to substantiate the contention that Dr Handley was unable to take accurate notes of the Claimant’s instructions. Some points of detail may have been misunderstood from time to time, but that is a normal part of the process of gathering and refining a client’s evidence.” [124]
“The Claimant has over a period of years presented two very different versions of her life: one for the purposes of her beauty business and the other for the purposes of maintaining her clinical negligence claim. In the first she is a busy, successful and active beautician with long experience in the beauty industry, who at the beginning of 2020 opened her own salon, “By Kaso”, with a business partner, and who (after a break brought about by the pandemic) held training sessions in 2021 for aspiring beauticians. In the second, she is disabled to the point of being unable to do more than a very limited amount of work from time to time (and on some of her accounts, barely able to leave the house). In that version, notwithstanding that she was a director and co-owner of “By Kaso” and presented publicly as the face of the business, she was really nothing more than an investor with no practical involvement.” [132]
“In order to support the version of her life that she advanced for the purposes of the clinical negligence claim, she asserts that there is no reality whatsoever in the information she presented about herself, over a period of years, through the press and social media.” [133]
“I appreciate that the Claimant will not have wished to advertise her health problems to customers of her lash and brow business. I accept that the Claimant presented to her social media contacts and customers a fraudulent account of being a finalist in a fictitious set of beauty awards; that the review of her training by “@cheshirelashcompany” in March 2021 was set up by her giving free training to a friend’s daughter in return for the review; and that her advertised candle business was part of a pyramid scheme (in relation to which her degree of culpability is unclear).” [134]
“Those matters are, however, in themselves also damaging to the Claimant’s credibility and do not begin to show that her presentation on social media and in the press was entirely false.” [135]
“The Claimant has admitted to treating celebrity customers Including Victoria Beckham, Jesy Nelson, Petra Ecclestone, and members of the Coronation Street cast. Mr Exall for the Claimant described her business, consistently with her evidence, as a ‘microbusiness’ for family and friends. I hope that Mr Exall will forgive my observing that he presented a very weak case as effectively as one could possibly expect, but the proposition that the Claimant could attract such clients on the back of such a business, thanks to a completely misleading social media profile, does not really bear examination. Whether the Claimant was paid for that work, or (as she says) it was done without charge to raise her profile, is not to the point.” [136]
“The same is true of her attempts to disown the report of the Manchester Evening News and her quite evidently central role in the establishment and management of ‘By Kaso’. Everything in the report shows her as taking the lead, with Ms Dumville in a nonspeaking supporting role. She, not Ms Dumville, is pictured demonstrating how to give treatments safely. In the Tik Tok video she is dancing in the foreground, with Ms Dumville in the background. Even the name of the business is an amalgam of Katie and Sophie, with Katie to the fore. Her insistence that she played no active part in the business is not credible.” [137]
“The Claimant has explained away the ‘@cheshirelashcompany’ review of her training as not a genuine review. She has not, however, addressed the fact that it demonstrates that she was supplying training in ‘her pristine salon @bykasoltd’, which contradicts her oral evidence to the effect that the only use she was able to make of the ‘By Kaso’ premises was to treat clients without having to pay for the chair.” [138]
“There is then the DWP record. I have already referred to the entry from March 2021. Dr Handley has referred to an Industrial Injuries Disablement Benefit form completed by the Claimant on 2 April 2018 in which she says: ‘Since my last assessment on 7th March 2016 my head injury is alright but my neck, left shoulder, depression, and anxiety have not changed and are still the same. I have not had any specialist treatment and I have been discharged from specialist follow up. I was not coping at work and I have not worked since January 2017 and I am still off work. I continue having pain, anxiety and depression, and I still suffer from pain, anxiety, and depression every day. I take sertraline 50mg daily for depression and for anxiety and .pregabalin… For pain relief, I have difficulty lifting and reaching. I am alright showering, dressing, and driving an automatic car, I have not had any further injury or accident I have been suffering from bladder incontinence for 5 years. I do not have any other health conditions and am otherwise healthy. I still have constant pain in my neck, left shoulder, and arm.'” [139]
“This entry is notable for two reasons. First, there is a clear statement to the effect that the Claimant has not worked since January 2017, with no mention of the beauty business. Second, there is no reference to the Claimant’s surgery or to resulting groin pain. On the contrary, there is a positive assertion to the effect that the Claimant has no medical problems other than the shoulder/neck injury sustained at work, depression and anxiety, and an incontinence problem. Dr Handley points out that the DWP records go back to 2012 and states that there is no reference in them to gynecological pain, groin pain, or the Claimant’s surgery. I have seen nothing to contradict that. The Claimant is not in a position to rely upon her DWP record: quite the contrary.” [140]
“Having revealed to the Defendant in February/March 2018 that she had some income from beauty work, the Defendant changed her position and in October 2018 advised Dr Handley that she had given it up years before. She maintained that position until the truth was exposed in June 2018, at which point she attempted to deny the obvious, even to the extent of saying that ‘By Kaso’ was Ms Dumville’s project and not hers.” [142]
“I do not accept that the Defendant in any way coerced the Claimant into making or maintaining a loss of earnings claim, any more than I accept that the Claimant’s union coerced her into making an unfair dismissal claim. The Claimant appears to have a habit of attempting to shift responsibility for her actions on to others, as if she had no will of her own.” [143]
“The letter of 28 February 2018 referred to by the Claimant is nothing more than a request for confirmation of instructions apparently given in 2017 to the effect that the only claim in the clinical negligence action was going to be for painkillers. Evidently that confirmation was not forthcoming, and the purported instructions of 2017 would have been entirely inconsistent with the way in which the Claimant still presents her case. As I have mentioned, even after the claim for loss of earnings and pension (pleaded at over £500,000) was dropped the Claimant maintained other claims based upon a serious degree of disability, including care costs, quantified at over £110,000.” [144]
“On the evidence, the Claimant maintained the loss of earnings claim until Dr Handley pointed out to her that it was hopelessly inconsistent for her to maintain a claim against British Airways on the basis that she was fit to work whilst maintaining a clinical negligence claim on the basis that she was not. The only influence Dr Handley had upon the Claimant’s loss of earnings claim was in persuading her to drop it.” [145]
“Nor do I accept that Dr Handley, as the Claimant says, instructed the Claimant to present a misleading ‘worst case scenario’ to her medical experts. As I have observed, the transcript of 16 October 2020 does not support that allegation. Her assurance to Dr Handley in her email of 16 September 2019, that she was honest with the experts about her shoulder injury, is plainly inconsistent with it. The file records show Dr Handley advising the Claimant to be as frank as she could in her evidence. The Claimant, not Dr Handley, is responsible for the information she gave to the experts, and her allegation of necessity implies that she did mislead them.” [146]
“The complaint that Dr Handley, in March 2021, was encouraging the Claimant to continue without considering the risks is another example of the Claimant attempting to pass to the Defendant responsibility for the consequences of her own actions. Dr Handley, as she should, worked on the basis that her client’s account was true, and encouraged her to be frank and open with her disclosure to demonstrate that she had nothing to hide. It was not until 18 June 2021 that she realized that her client had a great deal to hide, and had indeed been hiding it.” [147]
“Mr Exall argued that the Defendant should have looked into the level of earnings derived from the Claimant’s beauty business, which she describes as minimal. Dr Handley, he suggested, should before terminating the retainer have taken up the Claimant’s offer to send bank statements. That seems to me to be rather beside the point. The question was not what the Claimant was earning but what she was doing, and its inconsistency with what she had repeatedly told the Defendant.” [148]
“I find it remarkable that the Claimant criticises Dr Handley for not ascertaining the level of her earnings from the beauty business when the Claimant herself in her witness statement has volunteered nothing about the level of those earnings (other than a broad statement that she made no money from “By Kaso”). She has disclosed no records that might substantiate what she says. It was only on reexamination that she claimed to have earned about £2,500 per annum in 2016 and 2017 (notwithstanding that she told the DWP in April 2018 that she had not worked since January 2017), very little in 2018 due to the illness and death of her mother, and just under £3,000 in 2019, with no income to speak of in 2020 or 2021 due to the pandemic…. Under the circumstances, I can attach no weight to that evidence. The true level of the Claimant’s earnings from the beauty business, as far as I am concerned, remains unknown.” [150/1]
“The Claimant also cites in support of her case the expert evidence. Mr Exall submitted that the Defendant should have referred MPS’s new evidence to the experts for comment before terminating the retainer.” [155]
“I do not think that the expert evidence is at all helpful to the Claimant. On cross-examination she admitted that she had never mentioned her beauty business to Mr Frenkel for the purposes of his June 2019 report on loss of earnings, giving as her reason that it was not a reliable source of income. That is an entirely implausible explanation given the earnings to which she was prepared to admit between 2016 and 2019.” [156]
“As for the medical experts, the Claimant’s attempt to assert that it was the Defendant’s responsibility to make her medical experts aware of her beauty business does not bear examination. That is first because she herself told the Defendant that she had no such business. It is second because, as one would expect, the medical experts went into the Claimant’s day-to-day activities with her in some detail, extending to matters such as work, hobbies, and social life. As Dr Handley said in evidence, that was a task for them: they did not need additional instructions from the Defendant. The only credible explanation for so much of the expert evidence failing to mention the Claimant’s beauty business is that the Claimant withheld that information.” [157]
“To recap, in January 2019 the Claimant told Dr Jackson that her occupation was ‘cabin crew’, and that she had cut her hours due to her medical condition. She did not mention a beauty business and described the supermarket as the only place where she went. In November 2020, she told him that she no longer worked for British Airways and that she did not leave the house. There was no mention of a beauty business, much less that she had opened a salon at the beginning of that year.” [158]
“The Claimant told Dr Sharma in January 2019 that she worked with British Airways. She did not mention a beauty business. In February 2020, she told him that she had in August 2019 trained as a beauty therapist and believed that she could work self-employed. This was presented as a new development and a possible future venture, not as an accomplished fact extending back over a period of years. There was no mention of having opened a salon at the beginning of the year.” [159]
“The Claimant did not mention her beauty business to Dr Scott in May 2019. She mentioned income from property, but not from any other source.” [160]
“The Claimant did not mention her beauty business to Mr Parkinson or Dr Cutting, only her employment as cabin crew. She told Dr Cutting on 26 January 2021 that in April 2019 she had gone back to work for 3 days ‘following which she never worked again’. She told Mr Parkinson in November 2020 that she had lost her job. There was no mention of beauty work, opening a salon, or offering training.” [161]
“The nearest that the Claimant seems to have come to telling an expert that she was active in the beauty business was in telling Dr Logan, on 15 January 2021, that after she lost her job in July 2019 she undertook beauty treatments on a self-employed basis but struggled to do it.” [162]
“This was presented to me as an example of the Claimant being frank and honest. It strikes me rather as an example of the Claimant’s inconsistency in the little she did reveal, from time to time, about the beauty business. It is not consistent with what she told other experts. It is not consistent with the record of her activities. It is not consistent with the fact that she had been running her beauty business long before she left British Airways. It is not consistent with her last-minute evidence to the effect that her 2019 earnings exceeded those from previous years.” [163]
“As for whether the expert evidence is generally supportive of the Claimant’s case, I must quote this passage from Dr Sharma’s report of January 2019 and repeated in his subsequent reports: ‘Pain is a subjective, self-reported symptom not amenable to independent verification. Only Mrs Hulme can know the true nature and severity of the pain that she suffers. Medical assessment and opinion rely on her being honest and reliable in providing her testimony and being genuine in presentation.'” [164]
“Dr Sharma thought that the Claimant’s pain presentation had a significant psychological element, although he evidently felt obliged to include exaggeration within the range of opinion appropriate to her case. In March 2020 he noted inconsistencies between the Claimant’s account of her pain and her medical records, which he felt unable to explain. It seems reasonable to conclude that he would have had to revise his view quite radically had he seen the evidence produced by the MPS.” [165]
“Other experts also noted that the Claimant’s medical records did not support her account of pain starting after her surgery. Dr Cutting, in his June 2021 report, concluded that the Claimant was exaggerating the pain in her pelvis relative to that in her shoulder.” [166]
“Dr Logan found the discrepancy between the Claimant’s account in her medical records to be so marked as to lead him to the conclusion that the Claimant’s account was exaggerated. He attributed that possibly to her severe distress and depression, alternatively that she had developed pain after the operation but attributed her symptoms to the operation, backdating her symptoms either consciously or unconsciously. He did not rule out the possibility of fraud for financial gain. Again, it seems likely that his opinion would have hardened significantly had he been asked to comment upon the evidence unearthed by the MPS.” [167]
“Dr Handley received MPS’s crucial letter and enclosures on Friday 18 June 2021. She and the Claimant reviewed the documents over the weekend and she effectively terminated the retainer on 21 June 2021. The Claimant says that that was premature and that Dr Handley did not have a right to terminate the retainer.” [168]
“The one inconsistency I have identified in Dr Handley’s evidence is that she says that she referred the Claimant’s response to Counsel and the ATE insurer for consideration, whereas her attendance note of 21 March 2021 indicates that Counsel had already refused to act further and the ATE insurer had already withdrawn cover before she heard what the Claimant had to say.” [170]
“I do not regard that as material. Dr Handley’s attendance note of 21 June 2021 reads as if she herself had already made up her mind, but she would have been entitled to do so. Dr Handley will have been aware by then that the Claimant had repeatedly lied to her concerning her beauty business; that the Claimant’s account of her physical and psychological condition was flatly contradicted by the evidence of her business activities; and that the evidence produced by the MPS in June 2018 showed a level of physical and social activity entirely incompatible with the Claimant’s stated case. The Claimant’s blustering response did not offer any credible explanation, but no credible explanation was really possible. The withdrawal of counsel and the ATE insurer and the termination of the retainer between the Claimant and the Defendant was inevitable, whatever the exact sequence of events.” [171]
“It would have been clear to Dr Handley by 21 June 2021, as it appears clear to me now, that the Claimant had not cooperated with the Defendant in the management of her claim; that she had not adhered to her responsibilities under the terms of the retainer, in particular not to mislead the Defendant; that the Claimant’s clinical negligence claim had consistently been pursued in a dishonest manner; that professional rules prevented the Defendant from acting for the Claimant further; and that the Defendant was entitled forthwith to terminate the retainer and seek from the Claimant payment of its costs and disbursements in accordance with the retainer’s terms.” [173]
“Dr Handley had already invested much of her firm’s time and resources, on a conditional fee basis, on a case that she could no longer properly support. It was not incumbent upon her to make further enquiries or to re-instruct experts. Dr Handley was fully entitled, on 21 June 2021, to terminate the contract of retainer between the Claimant and the Defendant with immediate effect, and the Defendant is fully entitled to seek payments of its costs and disbursements from the Claimant.” [174]
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