Sweet Lorraine's ET thread

[Pusillanimous]

It wouldn't be tribunal costs, it would the your ex-employer's costs. See Calderbank v Calderbank regarding withdrawing at the eleventh hour. Perhsp you can obtain a medical note to cover your back?

[SweetLorraine]

Thanks Pusillanimous,

 

the only thing I found C. v. C. was a divorce case in 1975.

 

The antics of the respondent affected my health prior to the first (adjourned) hearing; in retrospect the respondent served up more of the same sort of tactics, but supercharged this time, just a day or so from the rescheduled hearing which actually made me affected me worse than the first time. The Tribunal did not step in to stop this. Perhaps it's not their job to do that?

 

If I had been able to turn up for the hearing, at best, I would have been a fumbling mess.

 

And now I might have to pay for the time the respondent took to work up these tactics which affected me so badly? It is a madness surely? What is to stop the respondent claiming that their whole legal department spent six months of their time on this claim?

[becky2585]

It's a bit late now, but what you should have done was make an offer through ACAS that you withdraw and they agree not to pursue you for costs.

 

If they do go for costs (and don't forget they are rarely awarded) then they have to show how much time they wasted in preparation. Solicitors have to record every unit of time they spend on a case with a description of the work done (in 6 minute units) so they can't just pluck a figure out of thin air.

[Pusillanimous]

Try Calderbank v Calderbank judgment in full (should be available on MoJ EAT judgments, or BAILII. What happened was, Calderbank, the claimant, pulled out three weeks before the hearing. The judge gave costs to the other Calderbank, who argued they had made an offer which was turned down, so had wasted further costs.

 

A thought occurs to me that perhaps employers make derisiory "commercial" offers of a few month's salary, simply so the can go for costs should the claimant lose or pull out.

 

It is not anything to do with fairness. There was a case of someone falling ill on the day of the hearing, a PHR, which had to be postponed. Although the judge was sympathetic and the illness was authentic, costs for that hearing became liable, because the respondent applied for them.

 

If you are thinking of withdrawing, always do it well in advance to avoid the threat of costs.

[becky2585]

Try Calderbank v Calderbank judgment in full (should be available on MoJ EAT judgments, or BAILII. What happened was, Calderbank, the claimant, pulled out three weeks before the hearing. The judge gave costs to the other Calderbank, who argued they had made an offer which was turned down, so had wasted further costs.

 

A thought occurs to me that perhaps employers make derisiory "commercial" offers of a few month's salary, simply so the can go for costs should the claimant lose or pull out.

 

It is not anything to do with fairness. There was a case of someone falling ill on the day of the hearing, a PHR, which had to be postponed. Although the judge was sympathetic and the illness was authentic, costs for that hearing became liable, because the respondent applied for them.

 

If you are thinking of withdrawing, always do it well in advance to avoid the threat of costs.

 

Calderbank was a divorce case in the county courts, where costs are often awarded. The ET is different. Plus, whilst I'm not a matrimonial lawyer, I believe the legal system states that to invoke Calderbank, a "Calderbank offer" must be made - similar to on Part 36 CPR grounds, which again relates to the county courts.

 

The ET does take fairness into account when determining costs. They're allowed to take into account the claimants finances compared with the prejudice to the respondent. And very rarely would costs ever be awarded in their entirety - if they got anything, it's likely to be limited to preparation for the hearing itself (ie cross examination and closing submissions) rather than in relation to the whole lot.

 

It's low risk, but you are right when you say the risk increased more towards the end of the case. But here, as a full bundle hadn't even been prepared, therefore no witness statements could have been exchanged, meaning hearing prep can't have commenced, I'd be very surprised if the ET awarded costs.

[SweetLorraine]

Thanks again becky2585,

 

the only 'bundle' the Panel had seen and perused, was the one for the first hearing prepared solely by the respondent.

 

I felt I had a strong case, however I did realise that I was in completely unknown territory in a Tribunal process and so I set my mind at a 50/50 chance of success as things can go wrong.

 

As I would be by myself in the hearing I figured my only two 'friends' would be my witness statement and my evidence and both had to be strong as could be.

 

I believed that the 'loss' of my evidence at such a very late hour weakened my witness statement alarmingly. The Tribunal were willing to discuss this state of affairs before the hearing began - but I strongly felt that a hearing couldn't possibly commence with my evidence missing. I didn't think the Tribunal would postpone the hearing again (which may have been a complete misconception by me), and I hadn't seen the opponent's statements.

 

In the moment, the afternoon before the hearing, it was like someone turned on a pressure value and everything came crashing in on top of me. Awful, awful heavy pressure. I hadn't really cared what the opposition's witness statements had to say, with the documentation I had I was fairly sure it could be shown that they were not telling the truth. but if I didn't have my evidence in place, then how could I counteract such statements? I felt myself shut down. I think it would be fair to say I lost the plot entirely. I shouldn't have.... but I did. I think I got things out of proportion. I had no-one's counsel but my own. I should have spoken to a couple of friends for support/advice. I didn't, and took the decision to withdraw. I think, perhaps, I made the wrong call.

 

I felt dreadful for the next couple of days, but I am now minded of the 50/50 chance I gave myself overall at the beginning. In the face of a legal team who knew how to 'play' the overstretched local Tribunal service, I have had to accept that I put a foot wrong and sank like a rock..... in skunk pee.

 

I'm beginning to feel a bit better each day. If the Tribunal does stick me with some sort of costs I always have the option of an appeal against that decision. So that is something to hold on too. I can begin to concentrate on looking for a new job (my JobCentre job 'advisor' is driving me nuts as well) and put all this behind me. I feel very bashed about at the moment, but I'II be OK.

 

Lessons learned?

 

The respondent screwed you over, that is maybe why you are in an ET process; they may well continue to lie and harass you. It's nothing personal, it's what they do, taking care of business. Try to be objective and don't take it personally (but you may at times).

 

Don't try any do everything on your own (I did). Seek support from family and close friends.

 

Look for legal advice right at the beginning, and get your solicitor to give you advice on the merits of your claim and your chances of success. The first legal person I engaged, thoroughly charming, never advised me on my case strategy etc; just engaged my employer in a series of emails and phone call exchanges that took me nowhere except into the red with a bill for £2k. I asked to see the copious emails he had sent my employer. He refused. Hmmmm. He had to go. I had a strategy brief with a second solicitor. Excellent advice and reasonable fees. I wish I could have used her more. I should have actually.

 

If you have found this site, keep using it; it is wonderful, indeed the advice I have been given at times by the contributors has allowed me a goodnight's sleep instead of lying there waiting for the dawn. If you are new to the ET process there are plenty here who have been down that road many times before you and will be happy to offer you advice.

 

And whatever happens in the end, win, lose or emotionally drawn into it (another mistake I made), you tried as best you could, so many things can go a different way from what you may have antcipated; it happens, nothing is 100% certain, especially when the respondent starts spinning a line or two When it is over try to move on from that episode.

Edited September 23, 2012 by SweetLorraine

[Pusillanimous]

Calderbank was a divorce case in the county courts, where costs are often awarded. The ET is different. - Snip - I'd be very surprised if the ET awarded costs.

 

Sorry, my bad! I must be confused with another case. The following one does exist in Employment Law:

In case law, respondents have been awarded costs because: the claimant, withdrew his claim at the last minute, changed the nature of the claim, made the case last longer than it should, and argued bad points (eg McPherson vs BNP Paribas 2004) where Mr McPherson withdrew his claim two weeks before the hearing.

http://www.bailii.org/uk/cases/UKEAT/2003/0916_02_1407.html

 

I am sure this is nothing like SweetLorraine’s case. However, SL, it might be worth writing to the Tribunal and the other party setting out reasons for non-appearances, as an insurance measure.

 

I have been told that barristers are complaining that EJ’s are more frequently ready to apply costs now than in the past, hence the concern. No alarm intended.

[Pusillanimous]

If the Tribunal does stick me with some sort of costs I always have the option of an appeal against that decision.

 

It is almost impossible to get a costs order overturned. EJ's have wide-ranging powers in this. If by chance the other side do apply for a costs hearing, make sure you have good representation, so that costs are not awarded in the first place.

[Pusillanimous]

 

And whatever happens in the end, win, lose or emotionally drawn into it (another mistake I made), you tried as best you could, so many things can go a different way from what you may have antcipated; it happens, nothing is 100% certain, especially when the respondent starts spinning a line or two When it is over try to move on from that episode.

 

Thanks for the lessons learned. The option of walking away from a bad situation is a valid one, and sometimes the right one. Now is the time to recover and heal.

[lindyhop]

Hi Sweet Lorraine, i sincerely hope that things with you are improving every day. your thread has been invaluable. reading through it has highlighted many of the pitfalls, and i thank you for sharing your experience.

 

there are points you have raised that i need to apply to my own case.

 

i can only hope for you that what goes around comes around and that your employers or the adverseries in your case 'get theirs'

 

The best for the future

 

Regards

[SweetLorraine]

Thanks for you kind words lindyhop,

 

still benused by the turn of events - but, hey ho, onward and upward. I asked the Tribunal to reconsider my withdrawal decision and view it as a postponement request instead. We'll see.

[Gazza01]

Hiya

 

You might want to have a look at the following cases:

 

Roberts v Barley

http://www.bailii.org/uk/cases/UKEAT/2012/0271_11_2004.html

 

Doyle v North West London Hospitals NHS Trust

http://www.bailii.org/uk/cases/UKEAT/2012/0013_12_1403.html

 

These are where costs orders were thrown out.

 

If you PM me privately I'll point out the website that highlighted these for the legal position.

 

Good Luck

[Pusillanimous]

It is a court of law. They call the shots. They do not take kindly to non-appearance by a party without forewarning. It is not like a dental appointment whereby it can be missed and then rebooked. They may have had the hearing in your absence (as they can). Ring them up and find out what is the situation.

[becky2585]

Thanks for you kind words lindyhop,

 

still benused by the turn of events - but, hey ho, onward and upward. I asked the Tribunal to reconsider my withdrawal decision and view it as a postponement request instead. We'll see.

 

Hi Lorraine

 

I hope you're feeling a little better?

 

I don't want to upset you - more prepare you - but case law on that issue is sound - once a claimant has withdrawn the claim, it can't be postponed or reinstated. Harsh, maybe - and perhaps unfair on people like you who withdraw "in the heat of the moment" - but if it was an unequivocal withdrawal, it won't be reinstated. I guess you withdrew a day before the hearing too? Usually such a late postponement wouldn't be allowed, although the respondent is fully expected to have things "in order" by the hearing, which they don't seem to have done here.

[SweetLorraine]

I withdrew the day before te hearing date; turning up without any of my evidence in the bundle (thanks to the respondent) would have been a waste of everybody's time!

 

So no it wasn't a 'no show' on the day, that would have been out of the question, certainly disrespectful to the Panel. The Tribunal emailed me on the day before the hearing to tell me that they had accepted my withdrawal.

 

Looing back I was so confident beforehand, but without my documentary evidence I felt completely lost! Completely bambozzled by the other side.

 

It has been three weeks now, I have heard nothing more. It really is the end of the process then.

 

I need to shake the dust from my sandals and move on.

Edited October 9, 2012 by SweetLorraine