Employment Tribunal Costs: Solicitor Ordered to Pay After “Vindictive” Conduct

Costs orders in the Employment Tribunal remain relatively unusual, but a recent decision involving a solicitor and HM Land Registry demonstrates just how significant litigation conduct can become when the tribunal considers who should pay the costs of proceedings.

In Farthing v HM Land Registry, solicitor Paul Farthing was ordered to pay costs following the failure of his employment claims. The tribunal found that the manner in which he had conducted the litigation went far beyond what could reasonably be expected, with Employment Judge Povey describing aspects of his behaviour as “vindictive”, “outrageous” and “egregious”.

For ARC Costs, the case is another useful example of an important principle, that even in jurisdictions where costs do not ordinarily follow the event, the conduct of a party can create substantial costs exposure.

What happened in Farthing v HM Land Registry?

Mr Farthing had worked as an Assistant Land Registrar before being dismissed for gross misconduct in November 2023.

He subsequently brought Employment Tribunal proceedings against HM Land Registry (HMLR), including claims for unfair dismissal, wrongful dismissal, failure to make reasonable adjustments and discrimination arising from disability.

Those claims were rejected on their merits in October 2025. The tribunal then had to deal with the question of costs.

Unlike most ordinary civil proceedings, losing an Employment Tribunal case does not automatically mean that the unsuccessful party must pay their opponent’s legal costs. However, the tribunal has powers to make costs orders in circumstances including where proceedings have been conducted unreasonably.

It was Mr Farthing’s conduct of the litigation that became particularly significant.

32 examples of alleged misconduct

The tribunal considered 32 separate instances of misconduct during the proceedings.

These included serious and unsubstantiated allegations directed towards HMLR employees, witnesses and members of its legal team.

The behaviour was sufficiently serious that some witnesses reportedly felt intimidated and sought permission not to give evidence in person, as well as protection through anonymity orders.

There were also reports made against HMLR’s lawyers to the police and Solicitors Regulation Authority, while the employee responsible for Mr Farthing’s dismissal was separately sued for malicious falsehood.

Judge Povey concluded that the litigation had been conducted in a manner that was unacceptable.

This distinction is important from a costs perspective. A costs order was not made merely because Mr Farthing’s substantive claims failed. The tribunal was considering the way in which the proceedings had been pursued.

HM Land Registry incurred £115,000 in costs

The figures provide an interesting insight into the potential financial effect of litigation conduct. HMLR’s total legal costs were approximately £115,000.

It argued that the litigation should ordinarily have cost around £35,000, meaning approximately £80,000 of additional expenditure had resulted from Mr Farthing’s conduct.

This is an issue costs professionals regularly encounter in other forms of litigation.

Where one party’s conduct results in additional correspondence, applications, hearings or preparation, the question may arise as to whether the opposing party should have to bear those additional costs.

The fact that expenditure has actually been incurred does not, of course, automatically mean that the whole amount will be recoverable.

Why was the costs order limited to £20,000?

Despite HMLR having incurred £115,000 and attributing £80,000 of that expenditure to the claimant’s conduct, the eventual costs order was capped at £20,000.

The tribunal took account of the circumstances as a whole, including Mr Farthing’s financial position and future employment prospects.

This is an important feature of Employment Tribunal costs.

The amount incurred by one party and the amount ultimately ordered to be paid by the other can be very different figures.

A tribunal considering a costs application may need to address several questions, such as whether the threshold for a costs order has been met, which costs resulted from the relevant conduct and what amount it is appropriate to order the party to pay.

For costs practitioners, separating these issues is crucial.

Does being a litigant in person make a difference?

Mr Farthing represented himself in the proceedings. The tribunal expressly took his status as a litigant in person into account. However, that did not excuse the conduct identified.

The judge also considered it relevant that Mr Farthing was himself a trained solicitor and therefore had professional experience of litigation and the standards expected of those engaging with the legal system.

The judgment does not mean that solicitors acting as litigants in person automatically face a higher threshold. Rather, the tribunal considered his background as part of the overall circumstances.

Costs warnings should be taken seriously

Another practical lesson from the case concerns costs warnings. Where a party believes that its opponent is behaving unreasonably, correspondence warning of the potential costs consequences can become important evidence if an application is subsequently made.

However, costs warnings should not simply be used as a tactical threat.

As the Court of Appeal recently demonstrated in Orton v Barclays Bank, aggressive correspondence cannot be used to circumvent a costs-neutral regime where the underlying conduct does not genuinely justify an award.

The two cases therefore provide a useful contrast.

In Orton, the Court of Appeal protected a party against an overly broad interpretation of unreasonable behaviour in the small claims track. In Farthing, the tribunal was faced with extensive documented conduct that it considered genuinely crossed the threshold.

Robert Collington’s commentary

Robert Collington, Costs Lawyer at ARC Costs, comments:

“The £115,000 figure is particularly interesting from a costs perspective because the tribunal ultimately ordered only £20,000 to be paid. Establishing unreasonable conduct is one issue; establishing what costs should actually be recovered as a consequence of that conduct is another.”

He adds:

“The case also demonstrates why parties should keep costs and conduct under review throughout proceedings. Where particular behaviour is generating additional work, having a clear record of the work undertaken and the additional costs caused can become extremely important if a costs application is ultimately required.”

What can solicitors take from the decision?

The decision is an extreme example, but the underlying costs principles have wider relevance.

Solicitors should ensure that clients understand that jurisdictions with limited costs-shifting rules are not necessarily completely costs-free. Unreasonable conduct can alter the position significantly.

For parties seeking costs, it is equally important to demonstrate the link between the conduct complained of and the additional expenditure incurred. Simply presenting the court or tribunal with the firm’s total legal bill may not adequately demonstrate what costs resulted from the unreasonable behaviour.

That is where careful costs analysis can become particularly valuable.

How ARC Costs can help

ARC Costs assists solicitors with complex costs issues across a wide range of proceedings. Our experienced Costs Lawyers can analyse costs incurred, identify additional expenditure resulting from particular conduct and assist with the preparation and presentation of costs claims and schedules.

We also advise on Bills of Costs, Points of Dispute and Replies, costs budgeting, detailed assessment and wider costs strategy.

Farthing v HM Land Registry is a useful reminder that litigation conduct can have a direct financial consequence. However, even where the threshold for a costs order is met, the amount claimed and the amount ultimately recoverable may be very different.

For legal teams, accurately identifying, recording and evidencing the costs attributable to unreasonable conduct can therefore be just as important as establishing the conduct itself.

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