I Won My Tribunal But They Won't Pay

[steampowered]

All solicitors and barristers are required to have PI insurance. But this only helps you if you have a decent professional negligence claim to start with. I'm not sure there is enough here to provide professional negligence.

 

 

Did you ever find out whether the company had any assets before it was dissolved or where those assets went?

[Hair Bear]

According to CompanyCheck.co.uk ...

ASSETS............£64,786

CASH...............£12,286

NET WORTH.....£ minus 54,769

LIABILITIES.....£34,694

There's nothing on Companies House website that seems to correspond to'Assets', unless it's "STATEMENT OF CAPITAL" below?

GAZ2(A)13/11/2012 FINAL GAZETTE: DISSOLVED VIA VOLUNTARY STRIKE-OFF

AA29/10/2012 31/01/12 TOTAL EXEMPTION SMALL

SOAS(A)31/07/2012 VOLUNTARY STRIKE OFF SUSPENDED

GAZ1(A)26/06/2012 FIRST GAZETTE NOTICE FOR VOLUNTARY STRIKE-OFF

DS0113/06/2012 APPLICATION FOR STRIKING-OFF

AR0103/02/2012 25/01/12 FULL LIST

LATEST SOC 03/02/2012 03/02/12 STATEMENT OF CAPITAL;GBP 1

TM0101/11/2011 APPOINTMENT TERMINATED, DIRECTOR XXXXXXXX

AA25/10/2011 31/01/11 TOTAL EXEMPTION SMALL

AR0124/02/2011 25/01/11 FULL LIST

CH0324/02/2011 SECRETARY'S CHANGE OF PARTICULARS / MR XXXXX/ 16/08/2010

AP0124/02/2011 DIRECTOR APPOINTED XXXXXXX

CH0124/02/2011 DIRECTOR'S CHANGE OF PARTICULARS / MR XXXXX / 16/08/2010

AD0124/02/2011 REGISTERED OFFICE CHANGED ON 24/02/2011 FROM

XXXXXXX Birmingham

AD0125/09/2010 REGISTERED OFFICE CHANGED ON 25/09/2010 FROM

XXXXXXXX Manchester

MG0118/08/2010 PARTICULARS OF A MORTGAGE OR CHARGE / CHARGE NO: 1

NEWINC25/01/2010 CERTIFICATE OF INCORPORATION

GENERAL COMPANY DETAILS & STATEMENTS OF;

OFFICERS, CAPITAL & SHAREHOLDINGS, GUARANTEE, COMPLIANCE

MEMORANDUM OF ASSOCIATION

ARTICLES OF ASSOCIATION

MODEL ARTICLES 25/01/2010 MODEL ARTICLES ADOPTED: PRIVATE LIMITEDBY SHARES (AMENDED PROVISIONS)

[Hair Bear]

Breaking News

 

Two things. Firstly, Companies House have come back to me to say that they won't be taking the matter any further. The grounds for this lie squarely with what everyone has said on here already: my lawyer shouldn't have taken as truthful the opposition's verbal assurance that they weren't continuing their efforts to dissolve the company.

 

Secondly, my lawyer has written to me saying "It seems XXX have been successful in persuading a Judge to have a further hearing". He also says he doesn't believe I will obtain any money (no, not when your lawyer fails to adhere to basic principles) and so will not be representing me and I am therefore on my own.

 

There is also a copy of a further Employment Tribunal Hearing, which I am hoping someone can lend some advice for. I've got to return "form 3" by the 25th of this month. They also say I should reply with dates that I am or aren't free "within seven days of the date of this letter" (seven days was up yesterday!!!!). And my printer has decided it won't print. And now I'm panicking. It reads that I need to get a bundle together, but if I don't know on what grounds I am fighting this, how do I know what sort of bundle they want. Do I just reproduce an old one? HELP.

[steampowered]

"It seems XXX have been successful in persuading a Judge to have a further hearing"

A further hearing for what? Not sure I follow.

There is also a copy of a further Employment Tribunal Hearing, which I am hoping someone can lend some advice for. I've got to return ;form 3" by the 25th of this month. They also say I should reply with dates that I am or aren't free "within seven days of the date of this letter" (seven days was up yesterday!!!!). And my printer has decided it won't print. And now I'm panicking. It reads that I need to get a bundle together, but if I don't know on what grounds I am fighting this, how do I know what sort of bundle they want. Do I just reproduce an old one? HELP.

What is this ET hearing all about?

 

I wouldn't be too worried about missing the form 3 deadline by a few days especially if you got the form late. I have received similar documents after the deadline before. Just get it in ASAP. Perhaps call the Tribunal by phone and tell them about any dates to avoid if there are any.

 

The bundle should include everything the Tribunal might need to look at for the hearing - all the statements of case (ET1 / ET3), witness statements, any documentary evidence, relevant correspondence and so on. The normal practice is to agree a bundle index with the other side, one of the parties would then produce the bundle based on that index.

[Hair Bear]

Not sure I follow either! Having had three Tribunals now, this last one almost a year ago, the opposition were allowed to apply for an appeal regarding only the last Tribunal, which was solely to determine whether I was employed or not. They argued that the Tribunal erred in law in that...

 

The judge "(sitting alone) relied heavily on evidence before him that he...got wrong" and had "relied heavily on evidence that was not before him and had not been properly introduced by either party, evidence that did not exist". They also said the judge had "erred in law in his findings of fact, and that no reasonable tribunal, on proper consideration of the evidence before them, could have arrived at the same findings". Two other points were made. That the judge "erred in the application of the law, by his misinterpretation in relation to the facts of this case, by the judgment of McKenna J in Ready-Mixed concrete v. Minister of Pensions (1968)". And also "the hearing was not properly conducted by judge XXX and was...contrary to common law in that the burden of proof of employment was on the claimant, whereas the hearing was arranged by Judge XXX in such a way that it placed a burden of proof on the respondent."

 

In allowing their appeal, the new judge gave his reasons thus...

 

"Surprisingly the Appellant's rep (not a lawyer) was able to persuade me that there were a number of important findings of fact which were arguably perverse and/or unsupported by evidence; in particular:

 

(1) the finding that 'Hair Bear' had signed a contract at p54 of the ET bundle in 2000 (judgement para 20); this was not alleged in his own witness statement (para 8) and was inconsistent with the fact that [my old door company] was not incorporated till 2007/8. [NOTE: the contract offered by the door firm was merely a replica of what I would have signed, not the actual one. The 2007/8 thing was that my old door firm changed names and ownership several times, so it wasn't a different company, but just a different name.]

 

(2) the remittance advices: para 51 of the judgment does not really make sense; [NOTE: not sure what he means, but the remittance notes were wage slips. The opposition argued that 'remittance' indicated self employment, but since my old doorfirm had switched to using self-employed doorstaff, I argued that they just used the same slips for everyone, including those who had remained PAYE. Had this come out in the first Tribunal, doubtless the old door company's rep could have confirmed this!]

 

(3) asking [the old door firm] for holiday in email at p49 of ET bundle: finding at para 47 was contrary to Hair Bear's own evidence in his first statement that [the old door firm] had little/nothing to do with his work at [the nightclub] other than to process funds. [NOTE: I find this extraordinary! If I don't tell the handlers of my money that I'm going on holiday, how am I supposed to expect any pay???!!!]

 

(4) holiday pay was inconsistent with finding that Hair Bear had to pay any replacement; [NOTE. I wasn't expecting this question at the Tribunal, and couldn't recall how I paid the people who covered me (if I paid them, it might indicate self-employment). It was only later, when the question had gone, that I recalled that the owner of the nightclub paid them directly. It never came out of my pocket.]

 

(5) there was no evidence for finding Hair Bear highly skilled or of good record and ability (which was contrary to the App's entire case). [Note. Again, this is extraordinary on several levels. For one, why should it be my "entire" case? The case was that I was employed for ten years and the next minute I wasn't! A new owner should determine whether an employee is or isn't any good at his job before getting rid of him. Moreover, in the first Tribunal both the old owner and door firm rep were asked if I was any good and they both said I was better than good. And in the second Tribunal, the new owner's new doorman even said there was no way I could do that job for ten years and be anything but good. The judge who sat through three Tribunals heard all this. That he didn't specifically allude to this in his summation of Tribunal three was surely irrelevant, because Tribunal three was only to determine whether or not I was self employed.]

[steampowered]

This is all becoming a bit confused. Most of the thread was about how you might go about enforcing your ET judgment. But the above seems to indicate that the other side successfully appealed against the ET's findings? Needless to say you can't enforce an ET judgment which has been overturned.

 

 

I'm not sure what help you are looking for now, if any. Let us know if you need anything.

[Hair Bear]

This is all becoming a bit confused. Most of the thread was about how you might go about enforcing your ET judgment. But the above seems to indicate that the other side successfully appealed against the ET's findings? Needless to say you can't enforce an ET judgment which has been overturned.

 

 

I'm not sure what help you are looking for now, if any. Let us know if you need anything.

 

Up until now I had assumed the case was won and that any subsequent appeal in relation to erring by the Judge would prove to be fruitless. Based on this, I concentrated on trying to get advice in how to get my money. The general consensus was that I put the case to Companies House before I attempted any civil proceedings. This has failed. Ordinarily my approach to this forum now would be asking for help in getting the firm put back on the register for as least amount of money as humanly possible. However, since the opposition have now managed to have their appeal accepted, this puts a backburner on my trying to get money owed. Hence my aim now is how to go about responding to this judgment. Does that make any sense?

[steampowered]

Yes, that makes sense. But how are you replying to the judgment and what is the upcoming hearing?

 

 

Its not clear to me exactly what happened. It sounds like he appealed to the Employment Appeal Tribunal which overturned the decision? In which case any further appeal would be through the court system to the Court of Appeal, not to a further tribunal.

[Hair Bear]

I'm probably getting my legal terms mixed up. The heading of the papers is "Employment Appeal Tribunal" (from London). It further says "I enclose a sealed copy of the above Notice of Appeal and Order...You are a Respondant to the appeal and if you wish to oppose it you should complete a copy of the enclosed Form 3...Your answer will then be served on the Appellant...This matter will shortly be referred to the Employment Appeal Tribunal List Office for listing of the hearing"

 

Then there is a "Respondent's Answer" form. After that there is a heading "Employment Appeal Tribunal" (dated 11 Feb). It reads, "Upon hearing XXX...it is ordered that...the Appellant's application pursuant to Rule 3(10) is allowed". Then there's a lot of legal speak followed by: "Appeal allowed to proceed to FH...REASONS" [i've given the judges reasons already], then there is the NOTICE OF APPEAL FROM DECISION OF EMPLOYMENT TRIBUNAL, and a few pages of the other side giving their reasons why they thought the original judge's decision was wrong.

[smokejumper]

Why is the other side bothering with all this, they must believe you could still possibly get your money.

 

As for your solicitor, I think he needs to take some responsibility for his actions ( or lack of ).

 

This is like a full time job for you, as for the bundle it is usually prepared by the side with legal representation.

[Hair Bear]

I think you're right, Smokejumper. I'm pretty sure the other side are concerned I might go after them via the civil route. I also agree about the lawyer. I know Steampowered said I didn't really have a case against him but after he cocked up with their being struck off I wish it was viable.

 

Thanks to everyone who has continued to watch my plight. It's still very much appreciated, and feel free to keep giving advice.

[steampowered]

Oh, right. So they were initially denied permission to appeal on paper. The other side then applied for a rule 3(10) hearing in order to get permission to appeal. You now have the actual appeal hearing coming up. Am I right?

 

Your job will be to convince the EAT that the judge had sufficient grounds to make the findings he made, and that evidence was presented to him which support those. Once you have done that it is very difficult for any appeal to succeed. You'll need to carefully address the initial concerns raised by the judge at the rule 3(10) hearing. Remember that these are just initial concerns not final findings ... the purpose of the last hearing was to decide whether they are allowed to proceed not whether they will be successful.

[Hair Bear]

Okay, brilliant, thanks. But just to clarify: I don't need to start worrying about bundles just yet? Also, will the judge who allowed their appeal be the same judge who also goes over my response?

 

Please also answer the following.

 

Part of the letter I've been sent says I have to send my response to e.a.t. AND serve on the appellant an Answer. Does this mean I have to send an identical copy of my response to the other side (if so, are they allowed to rebuttal it?), or does it mean that I just have to tell them I am responding?

[steampowered]

You should do what the notice tells you. I think the bundle for an appeal hearing should be relatively short.

 

 

Form 3s can be very short - since you are just saying the judgment issued already was correct, you rely on the judgment which was already issued. Unusually, you do have the benefit of seeing the concerns of the previous judge at the rule 3(10) hearing so you should try to address these point by point, by pointing towards the evidence presented at the hearing which gave the judge a basis to make that decision. Its important to understand that the burden of proof on the other side if appealing on factual issues is quite high - you shouldn't need to reprove your case and reopen every old wound, your job is to simply prove that the previous judge was entitled to make the decision he made.

 

 

If you have missed the deadline you should let the Tribunal and other side know you intend to file a form 3 and file ASAP.

[Pusillanimous]

You can simply state that you agree with the original judgment. You can also cross appeal.if there was anything in the original judgment you disagreed with from your POV.

[Hair Bear]

Thanks for coming back, Pusillanimous. An observation: I actually think that the law should be that the original judge has to account for whatever discrepancies arise from an EAT. It seems daft that someone other than the person who did the summation should attempt to clarify and second guess what that person was trying to say. I mean, supposing I cock up because my second guessing is all wrong and the decision gets reversed. If it was a case of, had the original judge responded instead, it might not have been reversed, it would look much better for the legal system because the fewer the decisions getting overturned the better.

 

On that note, now that I'm thinking about it: if I should lose in this next round am I also afforded the same luxury as the opposition - a chance to put that judge's decision to an EAT?

[Pusillanimous]

That's the idea, isn't it? You cannot objectively deal with a complaint against yourself, hence an appeal goes to an independent third party - in this case the EAT - rather than the original tribunal who made the judgment. If the FH goes against you, then you can apply for permission from the EAT to take it to the Court of Appeal. Be aware that if your case is unreasonable (suppose, for example, you really were never an employee) then you could have costs awarded against you, so it's important to be sure you have a case.

 

I'd recommend you read through the appellant's appeal with a fine tooth comb, to determine which part of his oral hearing was successful, as it was originally sifted out. Then do the same with the transcript, if any of the successful oral hearing. I will be important to understand why it has been allowed. You are looking at the orginal tribunal's written reasons and the appellant's appeal & EAT's reasons, if any, for allowing an appeal. Usually, it is because the judges at the EAT themselves form a view from the aforementioned, and this will be hard for you to overcome, if so.

 

Make a careful note of any case law quoted, as this will be key. If there is a legal precedent, then the EAT will be loathe to go against it, if that is what the original tribunal did in your case.

 

Find a good barrister.

[Pusillanimous]

Okay, brilliant, thanks. But just to clarify: I don't need to start worrying about bundles just yet? Also, will the judge who allowed their appeal be the same judge who also goes over my response?

 

Please also answer the following.

 

Part of the letter I've been sent says I have to send my response to e.a.t. AND serve on the appellant an Answer. Does this mean I have to send an identical copy of my response to the other side (if so, are they allowed to rebuttal it?), or does it mean that I just have to tell them I am responding?

 

You need to send a carbon copy of your response to the appeal to the appellant & the EAT. Directions as to the bundle will be made when the appeal is listed for a full hearing.

 

Will it be the same judge who reads your response? You will find out when you receive the sealed order to list the case. It may or may not be a different judge at the FH. If there was a panel of three at the tribunal, there needs to be the same number of judges on the panel at the EAT. If a judge alone, then you will have a judge alone at the EAT. I believe the judges are selected at random for hearings, so do not assume he or she is an expert in that particular area of law. You will need to do your homework, as they can only look at what arguments you submit.

[Pusillanimous]

Breaking News

 

Two things. Firstly, Companies House have come back to me to say that they won't be taking the matter any further. The grounds for this lie squarely with what everyone has said on here already: my lawyer shouldn't have taken as truthful the opposition's verbal assurance that they weren't continuing their efforts to dissolve the company.

 

Secondly, my lawyer has written to me saying "It seems XXX have been successful in persuading a Judge to have a further hearing". He also says he doesn't believe I will obtain any money (no, not when your lawyer fails to adhere to basic principles) and so will not be representing me and I am therefore on my own.

 

There is also a copy of a further Employment Tribunal Hearing, which I am hoping someone can lend some advice for. I've got to return "form 3" by the 25th of this month. They also say I should reply with dates that I am or aren't free "within seven days of the date of this letter" (seven days was up yesterday!!!!). And my printer has decided it won't print. And now I'm panicking. It reads that I need to get a bundle together, but if I don't know on what grounds I am fighting this, how do I know what sort of bundle they want. Do I just reproduce an old one? HELP.

 

Ring them up and ask them for a copy of (a) the transcript of the Rule 3(10) hearing and (b) a copy of the Practice Directions. YOu can download this from the EAT web site. It will tell you under Section 6, exactly how the bundle must be prepared.

 

It is important to lodge your response on time, as the EAT are a lot stricter and "by the rule" book than the more informal tribunal. If they get sniffy, you might need to make a special application if you are late, or called up before a judge to explain why you have not complied as ordered.

[Hair Bear]

My judge did come up with some case laws and the Appellant had a right go at tearing to pieces a couple of them, but from the EAT's Judge's Reasons, it doesn't read as though he's querying the case laws (thankfully). I've nearly completed a couple of his five Reasons and will post asap.

[Hair Bear]

Ring them up and ask them for a copy of (a) the transcript of the Rule 3(10) hearing and (b) a copy of the Practice Directions. YOu can download this from the EAT web site. It will tell you under Section 6, exactly how the bundle must be prepared.

 

It is important to lodge your response on time, as the EAT are a lot stricter and "by the rule" book than the more informal tribunal. If they get sniffy, you might need to make a special application if you are late, or called up before a judge to explain why you have not complied as ordered.

 

Got it all now (two days ago). I've got until the 25th and have been working hard. Will post my answers soon for the forum's approval and edit.

[Pusillanimous]

the judge "erred in the application of the law, by his misinterpretation in relation to the facts of this case, by the judgment of McKenna J in Ready-Mixed concrete v. Minister of Pensions (1968)". And also "the hearing was not properly conducted by judge XXX and was...contrary to common law in that the burden of proof of employment was on the claimant, whereas the hearing was arranged by Judge XXX in such a way that it placed a burden of proof on the respondent."

 

 

I would advise you concentrate on the above in red (points of law and procedure) and avoid peripehral issues such as he said/she said or personal criticism. As steampowered said, you need to establish that the tribunal's reasoning and logic was correct and within a reasonable range of response for them to make under their wide powers. Your case is not like the above because of X, Y and Z. Look up that case and quote a recent case that overturned that one, if it is similar to yours. Clues can be gleaned from reading the judgment applicable to the case quoted.

[Pusillanimous]

More recent case law here:

 

 

• The judgment of a subsequent leading case O'Kelly v. Trust House Forte Plc [1984] QB 90
  

[Hair Bear]

Here is one of the five Reasons and my answer. Please feel free to tell me what to cut or add, Forum. And NOTE that all names have been altered and any resemblance to real names is accidental.

 

(1) the finding that ‘Hair Bear’ had signed a contract at p54 of the ET bundle in 2000 (judgement para 20); this was not alleged in his own witness statement (para 8) and was inconsistent with the fact that INT Ltd was not incorporated till 2007/8.

 

Judgement paragraph 20

“The original contract (page 54) dated from February 2000 and I accepted the claimant’s evidence that he had signed it although the copy in the bundle was not signed. The employer was a company called INT Limited”

 

My witness statement paragraph 8

“I was provided with a Contract of Employment as evidenced at pages 54 to 66 of the Tribunal Bundle. Page 54 at paragraph 2.1 shows that my employment with National Security commenced on 18 February 2000”

 

My Response

Regarding the use of “INT Limited”: Firstly, Judge F accepted the door firm’s verbal assurance that the contract was identical save the name change. Secondly, on page 16 of the bundle the door firm wrote “During the period that the Claimant was employed...there was a series of business transfers that resulted in NOR Ltd being taken over by GEN Ltd to NATI Ltd, INT Ltd and finally CAS Ltd trading as National Security”. That the door firm underwent a succession of name changes was also referenced by Judge F, such as paragraph 23 “Over the years it is clear that the company behind the trading name National Security changed over time”. In court we had mostly used “CAS Ltd” whenever talking about the door firm, sometimes “INT Ltd” (away from court I had always referred to them as “National”, since they’d traded as National Security for years). Rarely, if ever, did we ever use the door firm’s first-ever name, NOR Ltd. I believe that, because of this array of names, when writing “INT Limited” Judge F was simply trying to indicate the company’s original name, got mixed up, and should actually have written “NOR Ltd”. But under no circumstances should this detract from the fact that he was clearly talking about one and the same door company.

 

As for why Judge F accepted that I had signed a contract despite my not alleging it in my own witness statement: I believe this was for two reasons. Firstly, he believed me when I told him I had signed one when he asked me. Secondly, the door company’s representative orally confirmed this, despite the fact that at the time of questioning it would not have been to the door company’s benefit to divulge such information (as this was prior to their being eradicated from the procedure). Additionally, if you read page 15 of the bundle, the door firm’s paragraph 6 says “The claimant was employed under the terms of a Contract of Employment.” I contend that, by definition, to be employed under the terms of a Contract of Employment means you that you had to have signed it! Again, though, there would be no advantage to the door firm divulging such information, both written and orally, and so I contend that any reasonable person would therefore conclude that the only grounds for its being divulged was because it was factual.

 

Let me also say that while in court I even rehashed my signing the contract, as it was, and still is, crystal clear to me. And for very good reason. At the time I was desperate for a door job, not just some work. Where I lived you could pick up bits and pieces but there was nothing beyond doing a Friday and Saturday shift, and I very much wanted a job. Searching on the Internet, I came across the door firm I eventually ended up with, a big company with many employees who covered a lot of Manchester. I telephoned them during the week before I started. The guy I talked to was called Dan. He told me to come see them the following day at 2:30pm. Having got lost en route, I was uncharacteristically late, so was annoyed with myself thinking I’d blown it. When eventually I got there Dan introduced himself and, in time, I was interviewed by a guy called Lee. It seemed to go well. Satisfied with the interview, Lee then gave me a tie and, the best bit, also handed me a contract and asked me to read their terms and conditions and then sign it. YES, a proper job!!! I seriously couldn’t have been more chuffed, but then when I was driving away I started thinking “Oh no, what have I done?” because I was stepping out of my comfort zone in many ways. For instance, I had heard many reports about Manchester gangs and guns and was worried about mywelfare.

Edited February 20, 2014 by Hair Bear
When cutting and pasting the edit went all funny

[Pusillanimous]

It is over-wordy. You need to pare it right down. Cut out the last paragraph. Use double spacing, as it is quite dense. You want them to read it with interest, not fall asleep. I suggest an opening paragraph summarising the five issues you will be addressing. You need to state that it was a fact found by the tribunal that you were an employee and the EAT does not have the jurisdiction to overturn facts found. It was a reasonable judgment and within the reasonable range of responses available to it. There is no question of perversity, as per 'cite case law'. The EAT is asked to reject the appeal as there is no reasonable prospect of success, were it to be remitted back to the tribunal.

 

Try using just the first two or three paragraphs under each header. Most people make their most important point in the first paragraph, the later ones being little more than rants or pontification, as you have illustrated.

 

It's important to refute the appellant's points, but your main priority is to affirm that the tribunal reached a correct conclusion. In law, you have to state the obvious. So sum up the points of law on which you won. Anything else is waffle and will annoy them.