Day v Health Education England: EAT upholds refusal of wasted costs order against Hill Dickinson

The Employment Appeal Tribunal has dismissed an appeal by Dr Chris Day against a decision refusing his application for a wasted costs order against Hill Dickinson LLP, the solicitors who acted for Health Education England (HEE) in his long-running whistleblowing litigation.

Handing down judgement in Day v Health Education England [2026] EAT 97, Mrs Justice Stacey held that Employment Judge Ramsden had made no error of law in concluding that the firm had not acted improperly, unreasonably or negligently, and that its conduct had caused Dr Day no additional cost.

Background

Dr Day, a specialist registrar formerly employed by Lewisham and Greenwich NHS Trust, made protected disclosures about patient safety. He sought to bring whistleblowing claims not only against the Trust but also against HEE, the training body that arranged his placements and funded part of his salary, relying on the extended definition of "worker" in section 43K(1) of the Employment Rights Act 1996.

After a protracted jurisdictional dispute that reached the Court of Appeal in 2017, HEE conceded on the eve of a 2018 rehearing that Dr Day was its worker. The substantive proceedings later settled. A series of settlement agreements addressed costs, including a clause in the October 2018 agreement extending to any claim against a party's representative.

The wasted costs application arose after Dr Day learnt, in 2019, of a Learning and Development Agreement (LDA) obtained by a journalist under freedom of information legislation. He argued that Hill Dickinson's failure to disclose the LDAs, which recorded the terms on which HEE commissioned junior doctors' employment, breached a disclosure order and had forced him to incur costs resisting the strike-out.

The tribunal's reasoning

Employment Judge Ramsden refused the application on multiple bases. The settlement agreements precluded it; there had been no improper, unreasonable or negligent act or omission; and, in any event, no additional costs had been caused. The tribunal accepted evidence from Hill Dickinson partner Michael Wright, who was not authorised to waive HEE's legal professional privilege, that the firm's litigation team had been unaware of the specific LDAs until June 2016.

Crucially, the tribunal found no material difference between the account of the relationship set out in the LDAs and that contained in the Gold Guide, the postgraduate training reference document Dr Day had held since 2011 and relied upon throughout.

The appeal

Although permission was granted on four grounds, Mrs Justice Stacey observed that grounds one to three all depended on ground five, which challenged the tribunal's treatment of privilege and disclosure obligations.

Applying Ridehalgh v Horsfield [1994] Ch 205 and Morris v Roberts (HMIT) [2005] EWHC 1040 (Ch), the appellant argued that a refusal to waive privilege cannot shield conduct that "admits of no reasonable explanation". Mrs Justice Stacey rejected the submission. The tribunal's findings supported several reasonable explanations for the non-disclosure, chief among them that the agreements were not the focus of attention because the Gold Guide already summarised the relationship. No disclosure order had been in force before February 2018, and voluntary disclosure had not been unfairly selective or misleading.

The tribunal had directed itself correctly and reached conclusions properly open to it. Its finding that disclosure of the LDAs would not have altered the Court of Appeal's decision to remit was, Mrs Justice Stacey said, unimpeachable. The appeal failed at the gateway condition, and it was unnecessary to consider the remaining grounds.