Zhuming Xu v Christian Action Research and Education & Ors [2026] EAT 98

[2026] EAT 98Case No EA-2022-000195-TH
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 10 June 2026
Before
HIS HONOUR JUDGE SHANKS
Between
MS ZHUMING XUAppellantCHRISTIAN ACTION RESEARCH AND EDUCATIONRespondentNADIA BATTIOUIRespondentADRIAN CHIRARespondentBENJAMIN DANIELRespondentELS SOLICITORS LIMITEDRespondent
THE APPELLANT appeared in Person for in personMr Gareth Deane (instructed by Edward Connor Solicitors) for 1st to 4th RespondentsMr Mugni Islam-Choudhury (instructed by ELS Solicitors Ltd) for 5th RespondentHearing Hearing date: 10 June 2026
JUDGMENT
PRACTICE AND PROCEDURE:SUMMARYC brought complaints of age and race discrimination (including a claim for personal injury) in the ET against Rs 1-4. She was represented by a firm of solicitors, R5, under a conditional fee agreement. On the fourth day of the FH she settled the case for £12,000 (to include the personal injury claim) on the advice of R5 and counsel instructed by them and the claim was dismissed by the ET. Before she agreed to settle on those terms she had been told in an email from R5 that if she settled the case they would charge no more fees than the £12,000 but that if she did not settle the case they would terminate the CFA and she would be liable to pay their costs in full under it.Having settled the claim she then made applications for reconsideration and revocation of the dismissal of the claim and for a wasted costs order against R5 on the basis that she had been the subject of an improper threat by R5 that if she did not accept the offer from Rs 1-4 she would have to pay them £41,000 in costs. Her applications were refused because the ET found that R5 acted properly in giving the advice and making the statement that the retainer would be terminated and C would become liable for costs to them under the CFA and that she was not subjected to any economic duress (which may have provided the basis for revoking the ET’s dismissal judgment).C appealed and the appeal was allowed to proceed at a rule 3(10) hearing on the basis that it was arguable that under the terms of the CFA, the liability for costs to R5 on the termination of the retainer would have been £25,000 and not £41,000 because R5 would not have been entitled to the 60% uplift provided for in the CFA.The EAT assumed for purposes of the appeal that this was correct as a matter of interpretation of the CFA and that R5 had in fact said that C would have been liable for the full £41,000 if she did not settle the case; but the appeal was nevertheless dismissed because:
[1]This is an appeal by Ms Xu against a judgment of the Employment Tribunal sitting in London Central (Employment Judge Hodgson, Mr T Robinson and Mr D Carter) refusing her applications for a wasted costs order against a firm of solicitors, ELS, and to revoke a judgment dismissing her claim against the first four respondents, CARE (Christian Action Research and Education) and three employees or officials with that organisation. The judgment was dated 22 October 2021; it followed a hearing which is recorded as taking place between 18 and 21 October 2021, though I am told today by Ms Xu that, in fact, the hearing only lasted one day.[2]The appeal was initially rejected on the sift by HHJ Auerbach on 13 September 2023 but it was allowed to proceed on a rule 3(10) hearing by Andrew Burns KC on two specific grounds drafted by ELAAS counsel, Miss Swords-Kieley, on 24 September 2024. The amended grounds of appeal are at pages 31 and 32 in the core bundle prepared for this hearing.

THE BACKGROUND

[3]Ms Xu worked for CARE as a finance officer from 2 November 2016 until 8 October 2018. She brought two sets of proceedings, which were later consolidated, alleging age and race discrimination arising out of actions mainly by the second and third respondents. As well as a claim for injury to feelings and financial loss, she had a claim for personal injury. This claim arose because she had complained that she wanted to work away from the second and third respondents, who she feared would continue to make nasty, harassing comments about Chinese people if she worked in their presence. This led to her being moved to a basement office on 29 January 2018.[4]On 11 April 2018, whilst she was working in that office, an electrician was also working with a drill and, unfortunately, something became lodged in her left eye which caused her injury. Her particulars of claim stated that her left eye “would not have been injured if she had not been moved to the basement” and the move to the basement was attributed to the racial harassment by the second and third respondents.[5]She was represented in the proceedings that I have described by the fifth respondent, ELS. They represented her pursuant to a conditional fee agreement which she signed on 30 May 2018, which is also in the supplementary bundle. ELS instructed Mr Adrian Peck of counsel and he represented her at a preliminary hearing and also at the final hearing, which was listed for 20 to 29 March 2019.[6]Following advice from ELS and Mr Peck, and in particular an email from Mr Ruwala of ELS, sent on 22 March 2019, the third day of the hearing, to which I shall return, Ms Xu settled the claim on 26 March 2019 under the terms of a written agreement. The agreement provided that CARE would pay her £12,000 and she agreed to the dismissal of her claims. In accordance with that agreement, the £12,000 was paid, although in practice it went to ELS and was used to pay legal fees, and the Employment Tribunal gave a judgment dismissing all her claims on withdrawal as recorded in a document sent to the parties on 5 April 2019.[7]On 14 April 2019 Ms Xu applied to the Employment Tribunal to reconsider and revoke that judgment on the grounds that she had agreed to the settlement because of improper pressure/economic duress by ELS and also for a wasted costs order against ELS on the basis that they had behaved improperly. She also applied on 28 September 2021 to add Mr Peck, her barrister, as the sixth respondent so that she could pursue a wasted costs application against him too. That application is at pages 176-189 in the core bundle.[8]There was then a hearing, and I have mentioned the length already, which certainly took place on 18 October 2021 and all three applications – that is the application to revoke the judgment, the wasted costs application against ELS and the application to join Mr Peck as a sixth respondent – were dismissed. She has appealed against that decision but the only grounds on which she is permitted to appeal at this stage are those contained in the amended notice of appeal, which is at page 31 in the core bundle, as I have mentioned.

THE HEARING OF THE APPEAL

[9]The appeal was listed before HHJ Tayler on 11 November 2025. For reasons I have explained in an earlier ruling, that hearing was adjourned and in due course has come before me today.[10]At today’s hearing Ms Xu appears in person with the assistance of an interpreter. At the outset of the hearing she applied for an adjournment. I refused that application for reasons given this morning at about 11.00. One of Ms Xu’s complaints in the course of making that application was that she had not been able to put forward a bundle containing the material that she wanted the Tribunal to see. Since I was determined that the hearing would be completed today, I said I would consider any document she wished to put before me. As the hearing progressed, she emailed an amended supplementary bundle and various other documents, in particular emails with her legal advisers, to my associate who sent them on to me and the barristers for the first to fourth and fifth respondents.[11]It was 11.30 before the application to adjourn had been dealt with and before the bulk of the documents that were supplied during the course of the hearing had been sent to the Tribunal and the other parties. I am afraid responsibility for that delay can only be ascribed to Ms Xu, who chose to sack her ELAAS rep before the last hearing in front of Judge Tayler, for reasons that really make no sense, and who has had many months to prepare for this hearing and who should not have come assuming that an adjournment would be granted today.[12]Once we got going with the substance of the appeal, Ms Xu told me how difficult it was as a litigant in person with limited English and invited me to suggest that the respondents’ counsel went first and that they raise any questions they might wish her to answer. I said that I could not require them to ask her questions but I was content for them to address the Tribunal first. They both referred to their skeleton arguments and they both addressed me briefly, though I have to say it was a time-consuming process given that Ms Xu required her interpreter to translate everything, not just what counsel said but documents that she, as I have indicated, could have considered at length previously given how long the appeal had taken to come on for hearing.[13]That process, whereby the two respondents made their submissions, was finished by about 12.20. Ms Xu then addressed me, in English, for about half an hour, until lunchtime. Before lunch I asked how long she would be and she responded only by asking if the case could go over to another day. I indicated very firmly that it could not and that I would limit her submissions this afternoon to one hour so that we could be sure to finish today. In the event she was given a full hour, although it is fair to say she did not use it all in a productive way and there were periods when we sat in silence waiting for her to find a document or start speaking again.[14]With that long introduction, I turn to the substance of the appeal.

THE ET’S DECISIONS

[15]The basis for the reconsideration and wasted costs applications was that Mr Ruwala, the solicitor at ELS with conduct of the matter, “threatened me and said if I did not accept £12,000 I would have to pay around £41,000 in costs”. Those words are to be found in the document at page 150 of the core bundle. It is also clear from that document, the application in effect, that Ms Xu expressly waived privilege in relation to her communications with her lawyers.[16]At the hearing, it is right to record that Ms Xu acted in person. The first to fourth respondents were represented by a solicitor called Mr Jones, and the fifth respondent was represented apparently by a Mr Searle of counsel.[17]In its judgment, the Employment Tribunal recorded the terms of the conditional fee 20. agreement at paragraph 23 and they stated that:
“We do not need to give full details of the agreement, as the agreement, and its interpretation, is not challenged.”
They recited the history of the final hearing and the email from Mr Ruwala to Ms Xu sent on 22 March 2019, to which I have referred. They set out the full terms of that email at paragraph 42 and I will read that into the record. The solicitor said as follows at 17:38 on 22 March, which was a Friday:
“Your current costs on this case are £25,825.50. With the 60% uplift costs are £41,320.80. Adrian Peck has given you advice on this matter as have I. If you lose your case in its entirety and you then try and bring a claim for personal injury claim, the respondent is likely to raise the defence of res judicata which is the legal principle that a claim cannot be heard again once it has been raised. I cannot comment as to the prospects of such a defence as I am not a personal injury lawyer. Following recent developments, including the evidence that has been given as fed back by Adrian Peck, I am of the view that the respondents’ offer of £12,000 inclusive of all claims is reasonable. Adrian Peck also considers the £12,000 is a reasonable offer of settlement. My advice to you is therefore to settle all claims to £12,000 by 10am on Monday morning. Your options are therefore: (a) to accept the sum of £12,000 inclusive of personal injury before 10am on Monday morning. If you follow our advice we will not charge any further fees to you above the £12,000. Our advice is to communicate your acceptance of £12,000 inclusive of personal injury to Adrian Peck by this time; (b) ...If you do not communicate acceptance of £12,000 to Adrian Peck by 10am on Monday morning, you will be liable for our costs in full and we will send you a bill which will be payable whether you win the case or not.” (a) to accept the sum of £12,000 inclusive of personal injury before 10am on Monday morning. If you follow our advice we will not charge any further fees to you above the £12,000. Our advice is to communicate your acceptance of £12,000 inclusive of personal injury to Adrian Peck by this time; (b) ...If you do not communicate acceptance of £12,000 to Adrian Peck by 10am on Monday morning, you will be liable for our costs in full and we will send you a bill which will be payable whether you win the case or not.”
[18]The Employment Tribunal then recorded advice from Mr Peck in an email dated 24 March 2019 and the advice, in particular, that Ms Xu should enter into the settlement agreement. They recorded that she did indeed enter that agreement and that the details were negotiated as the hearing had gone on. The settlement agreement in due course did include settlement of her personal injury claim.[19]In its judgment the Employment Tribunal considered allegations which were being made against Mr Peck and they rejected them at paragraphs 80 and 81 in the judgment. They said:
“We do not accept there is any evidence that he [that is Mr Peck] entered into improper discussions with Mr Jones [that is counsel for the first four respondents].”
Then it goes on:
“Improper conduct is refuted by Mr Jones. The height of the claimant’s evidence appears to be that a number of Mr Peck’s conversations with the respondents’ representative appeared cordial. There is nothing inappropriate in that.”

And they talk about opposing advocates. Then at paragraph 81 they say:

“It follows that we find there is nothing in the suggestion that Mr Peck behaved inappropriately or negligently at any time.”
Then it goes on: And they talk about opposing advocates. Then at paragraph 81 they say:[20]They then considered whether Mr Ruwala’s conduct was improper and they concluded as 24. follows at paragraph 92:
“We are satisfied that Mr Ruwala acted properly in advising settlement and acting properly in stating that the retainer would be terminated and the claimant would become liable for contractual costs if she refused to accept the advice.”
It followed from that that any claim for wasted costs failed at the first stage.[21]They then turned to the question of whether to revoke the earlier judgment given on withdrawal and they rejected that application at paragraphs 96-99 as follows. First, at paragraph 95 they simply recorded that the claimant, Ms Xu, had understood that she was withdrawing the claims, including the personal injury claim, that she may not have been happy about that, that she may have changed her mind but that that was not relevant. Then at paragraph 96, which I mentioned, they go on:
“The possibility remains that the judgment can be revoked. We would have to find it was in the interests of justice to do so. It is the claimant’s case that she suffered economic duress at the hand of her own solicitor. To establish economic duress she must show that she effectively had no choice. It is fair to say she was faced with a stark reality. That reality was either to take settlement and limit her exposure to costs or reject settlement and continue without the benefit of a conditional fee agreement and in the knowledge that she would have incurred the solicitors’ costs in the sum of £41,000.”
That is the figure for the costs incurred plus uplift that is in the email. Paragraph 97-99:
“97. Conditional fee agreements or no win/no fee arrangements are a useful way of allowing claimants to litigate with limited risk. However, no claimant can expect a solicitor to maintain the arrangement when it is clear the prospects have become limited and that claimant is refusing a reasonable offer. 98. The reality is the claimant was given a proper choice. Her solicitors acted generously in offering to limit their cost to the total settlement sum. The claimant had a real choice. This is not a case in which she had no choice at all. The reality is that she found the prospect of paying the full cost of the proceedings of her case unpalatable. That is however not economic duress. 99. It follows that the basis on which the claimant seeks to revoke the agreement is not made out at all. There was no economic duress of any form. The conduct of the solicitor was not improper. While the claimant may have found the natural consequences, the diminishing prospects of success, unwelcome there was nothing improper.”
At paragraph 100, the Employment Tribunal also consider on a wider basis whether to set aside the judgment and they rejected that idea.

THE GROUNDS OF APPEAL

[22]So I turn finally to the grounds of appeal. The entire premise of the grounds of appeal is that the email of 22 March 2019 sent by Mr Ruwala suggested that if Ms Xu did not settle she would be liable for ELS’s costs, including the 60% uplift, and that that was wrong as a matter of interpretation of the conditional fee agreement. I have looked at the agreement, which is, as I have already said, at pages 3 to 7 in the supplemental bundle. I have looked, in particular, at the clause which enables ELS to terminate the agreement, which is under the heading “Exclusions”, and it says:
“We may terminate this Agreement and/or charge you at the above-mentioned estimated fee regardless of whether your case wins or settles in any of the following circumstances: (i) if you fail to follow our advice with regard to the settlement or withdrawal of one of your claims …”
Looking at the whole agreement, I think as a matter of construction that Ms Xu or her adviser at the rule 3(10) is probably right to say that where solicitors exercised their right to terminate the agreement under that clause they would be limited to claiming fees in accordance with the basis set out in the costs estimate but without the 60% uplift which is payable if the case settles or is won at the Employment Tribunal when the solicitors have not terminated the agreement prematurely.[23]If I am right in that construction, the consequences would be that ELS would, on the figures in the email of 22 March 2019, only have been able to charge £25,825 for their services, counsel being another matter, if Ms Xu refused to settle, rather than £41,320 as was suggested and apparently found by the Employment Tribunal. As a matter of fact, which I need not go into in great detail, it is not clear from the email that they were in fact saying that they would be entitled to £41,320 if she did refuse to accept the offer of settlement of £12,000. It certainly does not say that expressly. But, anyway, I will take it for the purposes of the appeal both that under the agreement they would not have been entitled to £41,000 and that they did suggest that that was the case in the email of 22 March 2019. But I make clear that that is just a basis for considering the appeal and is certainly not a finding of fact or law.[24]On that basis it is said, in effect, that the conclusions of the Employment Tribunal are undermined, both in relation to the wasted costs application and in relation to the revocation of the judgment.

CONCLUSIONS

[25]The first point made by the respondents in answer to the appeal is that, however meritorious this point may be, it is undoubtedly a new one. There is no sign in the papers I have seen or in the judgment that this point was raised before the Employment Tribunal. The Employment Tribunal, as I have said, simply recorded that the agreement and its interpretation were not challenged. Mr Islam-Choudhury drew my attention properly to the case of Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 1857, which makes clear that an Employment Tribunal is not obliged to explore with a litigant in person ways in which her case can be put and improved and I do not consider that there was any such obligation in this case.[26]Towards the end of her submissions, Ms Xu drew my attention to a letter that she had written to ELS with the help of free legal advice on 6 June 2019, which she said she had put before the Employment Tribunal at the reconsideration and wasted costs application hearing . It is right the letter complains about the level of fees that ELS were claiming generally for their work on the case, but it does not complain that the email of 22 March 2019 was wrong or misleading about what would be payable if she did not settle the case. That was the essence of the appeal that was allowed through on the rule 3(10). So I remain of the view that this is a new point and therefore cannot be raised by way of an appeal.[27]The second main submission made by the two barristers is that even if this point had been raised before the Employment Tribunal, it could not have made any significant difference to the decisions made by the Employment Tribunal.[28]In relation to the wasted costs application, Mr Islam-Choudhury for ELS said that even if the Employment Tribunal had taken the point it could not have got Ms Xu anywhere because it was absolutely clear that the case on wasted costs was put on the basis of impropriety and not negligence, which was the only way that this issue could have been put. I am not sure that is necessarily so but the submission highlights very starkly the unfairness of allowing the point to be run at this stage in the EAT because there may have been all kinds of arguments and, indeed, evidence that could be relied on by ELS if the point in relation to the email of 22 March 2019 had in fact been raised in the Employment Tribunal.[29]So far as the revocation application is concerned, Mr Deane, appearing for the first to fourth respondents, submitted that it would have made no difference. The ET’s findings in relation to economic duress and whether the judgment should be revoked I have read out already. They are at paragraphs 96-99 of the judgment. It is plain to me that the detail as to how much was payable if Ms Xu did not settle is really beside the point when looking at that reasoning. It was always going to be effectively impossible to attack the dismissal of the claim on this basis (which is perhaps another way of saying that the rule 3(10) decision was rather lucky). So it would not have made any difference in relation to the revocation application if this point had been before the Tribunal and I am quite clear about that.[30]Those points dispose of the grounds of appeal that were allowed through at the rule 3(10) hearing. The appeal is dismissed. “POST SCRIPT”[31]I should say that in the course of her submissions I allowed Ms Xu to address me at some length about her allegations that she had received a poor service from ELS and Mr Peck, and I did not stop her making allegations to the effect that Mr Peck had somehow been paid off by the respondents in a way that undermined her case. None of that was really relevant to the specific grounds of appeal which had been allowed through at the rule 3(10), though I think she was perhaps grateful for being given the opportunity to complain to me. However, I did push back strongly against her allegations about Mr Peck, which were, as far as I can see, baseless and – I will use the word again – “scandalous” and I would urge her, if matters proceed, to consider her position carefully before she keeps repeating allegations against her various former lawyers, in particular Mr Peck.[32]Apart from when she was making baseless allegations like that, I had some sympathy with Ms Xu’s position overall. On her case she was harassed and discriminated against in her workplace on the grounds of her Chinese nationality and race. She brought a claim which should have been short and simple. She found herself involved in a puzzling, expensive and slow process. It may be that she could have been better served by her legal advisers.[33]However, the fact is that she settled the claim on proper legal advice and was fortunate to the extent that ELS did not seek to recover more than she recovered in damages, though they may have been able to claim a lot more under the terms of the CFA. She was given an opportunity to establish that they had behaved improperly and to seek to set aside the settlement agreement but failed before the ET.