I Won My Tribunal But They Won't Pay

[steampowered]

Yes, brackets mean negative. Those accounts are basically saying that the company was insolvent due to 320k of creditors. I am not sure why a bar would have such large creditors. I suspect that a large portion of that was either finance for the building or repayment of a loan made by the shareholders.

 

It is very difficult to say more without knowing what the 320k is all about, but realistically that is not going to be public information. If you want that information you may have to either go ahead and sue (on grounds which are not yet entirely clear) or bring an action for pre-action disclosure (which would likely mean you paying his costs for the disclosure).

 

The worth of this company was in its fixed assets (i.e. the land). Do you know who owned the land then and who owns the land now? It might be worth going on the land registry and paying a few quid to find out - this will give you a better flavour of what happened to that asset. Challenging movement of ownership of the land from one company into another is probably your best bet of challenging this, although I never said you will be successful or that it would be easy.

 

Can you also tell me if there were any charges registered against the company? The records of charges filing (form MG01) will still be on Companies House. If you were behind secured charge-holding creditors (such as a bank) then you are totally stuffed, but if it looks like everyone else was an unsecured creditor then you should at least have got a share of the assets left in the company.

[Hair Bear]

I know that in the ten years I was there the space was rented - it was part of a listed building - so can't see it being any different thereafter.

 

The document you asked me to download, MG01, reads...

 

Date of creation: 16/08/10

 

Description: rent deposit deed ("the deed")

 

Amount secured: All monies due or to become due from the company to the Chargee under the terms of the lease between the Company and the Chargee dated 18 March 1999 (the "Lease") and under the terms of the Deed

 

Morgagee [Name here I've not heard of XXXX ltd]

 

At the end there is a heading 'CHARGE NO.1' and under that it says...

 

A rent deposit deed dated 16/08/10 by [the company I took to court] for securing all monies due or to become due from the company to XXXX ltd under the terms of the aforementioned instrument creating or evidencing the charge was registered pursuant to chapter 1 part 25 of the companies act 2006 on the 18th Aug 2010

[Hair Bear]

Given that last post, am I correct in assuming it is pointless trying to get the business back on Companies House register?

 

Also, can someone tell me which of this lot would have been mine had it been paid (do I get any of number 3, for instance?)...

 

"1) The respondent is ordered to pay the claimant the sum of £2,789.04 as damages for breach of contract (including an uplift of 20% under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992).

 

2) The respondent is ordered to pay the claimant a basic award for unfair dismissal of £3,162.50 and a compensatory award for unfair dismissal of £10,679.45 (including uplift of 20% under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992), making a total of £13,841.95

 

3) The Recoupment Regulations apply. The prescribed period is between 18 August 2010 and 12 July 2011. The prescribed element is £10,319.45. The amount by which the total monetary award exceeds the prescribed element is £6,311.54"

[steampowered]

You get parts 1 and 2 only.

 

The concept of recoupment is that part of the award will relate to unpaid wages which should have been paid in the first place rather than JSA which you may have claimed.

 

Number 3 would actually be a deduction from parts 1 and 2. It enables the relevant government department to require the employer to part of the award to the government rather than to the employee, to reimburse it for the JSA which you were paid during the time you should have been paid by the employer. However a 'recoupment notice' would need to have been served on the employer and we are well outside the time for that (http://www.legislation.gov.uk/uksi/1996/2349/regulation/8/made), so I think you can forget about part 3.

[steampowered]

A Rent Deposit Deed is generally to secure a pot of money paid into a bank account as a deposit for the landlord. This suggests that the bar was rented, and so I imagine a big chunk of the 200k of assets was things like bar equipment.

 

As I think you mentioned he is still operating the same bar from the same address, there must have been a transfer of those assets from the old company into the new company. If the new company did not pay for those assets (i.e. they were not used for creditors) then you start to get into fraudulent transfer territory.

 

The big unknown is what the 320k of liabilities is all about. If the land was owned it may have been mortgage debt, but as it was leased that seems unlikely. 320k is quite a lot of debt for a business like a bar.

 

Getting the company back on the register and appointing a liquidator is the more conventional way to have this investigated, but probably not worth it for the amounts we are talking about.

[Hair Bear]

Thanks. Will put my energy into trying to transfer what he owes me from the company to him, but before I do that I'm going to sort these costs out (got another week and then will have to send them in, so trying to be thorough).

 

Although my old lawyer is no longer in the picture, my mother said I should perhaps inform him and he can maybe ask for costs too? She mentioned this because she's concerned that, if I get awarded costs and the lawyer finds out, he might then try to take some of that cash from me as part payment for previous work on the case.

[steampowered]

I can see why your mother is concerned, but to be honest I wouldn't bother. It sounds clear that you were representing yourself - the barrister did not prepare the appeal documents and did not go on the record as representing you.

 

Any costs awarded would be on the basis of a schedule setting out the hours you spent working on the case rather than on the basis of instructing a lawyer. Recovering costs would not give him any greater legal basis to get you to pay him than he has already, and it sounds clear that he gave you that advice for free.

[Hair Bear]

Regarding

 

"I think you should prepare a costs schedule and claim costs for time spent on the appeal, at the litigant in person rate of 34 pounds an hour"

 

My neighbour said that several years ago he had to do a similar claim for costs, and was told he could ask for no more than the then-maximum rate, whatever it was. He said that because, like myself, he had had to conduct his own appeal, he successfully argued that he should be allowed more per hour, namely the average of three local solicitors. Where does this £34 come from and might I be able to bump up that rate the way he did?

 

Also: You said to keep the costs realistic. I appreciate that, but I did spend hours and hours and hours working on the Appeal response - arguably anything up to 50 hours. That doesn't sound realistic, but that was the truth of the matter.

[Pusillanimous]

It goes up year on year in line with inflation. It goes up £1 per year, to keep it a round figure. So it might even be £35 per hour by now.

 

You should apply for your appeal fee back, too.

[Hair Bear]

Cheers for that.

 

Anyone know a link to a blueprint of a 'schedule of costs'?

[steampowered]

Regarding

 

"I think you should prepare a costs schedule and claim costs for time spent on the appeal, at the litigant in person rate of 34 pounds an hour"

 

My neighbour said that several years ago he had to do a similar claim for costs, and was told he could ask for no more than the then-maximum rate, whatever it was. He said that because, like myself, he had had to conduct his own appeal, he successfully argued that he should be allowed more per hour, namely the average of three local solicitors. Where does this £34 come from and might I be able to bump up that rate the way he did?

I believe it is stated in the EAT rules (you can find these online, Rule 34D).

 

You cannot ask for more, since the hourly rate given to litigants in person is specifically stated in the relevant rules. I'm not sure what the legal basis would be for what your friend did but I imagine it predated the regulation which sets out the rates for litigants in person.

 

Also: You said to keep the costs realistic. I appreciate that, but I did spend hours and hours and hours working on the Appeal response - arguably anything up to 50 hours. That doesn't sound realistic, but that was the truth of the matter.

If you estimate you spent 50 hours, then put 50 hours.

 

Properly considering and researching things takes a long time. For a litigant in person it takes longer. 50 hours does not sound excessive to me. If the judge thinks it is too much he can knock it down.

[Hair Bear]

I have written this so far. Is it okay? Any specific words need changing? Also, I thought I'd split the costs into two periods, to save confusion. Good/bad idea? Thanks in advance.

 

WASTED COSTS SCHEDULE

 

I am asking for wasted costs to be taken into consideration for two periods. Following my successful Tribunal on 16/03/12 (Remedy on 16/04/12 – unfair dismissal and breach of contract total £16,630, none of which has ever been paid), without informing me or my then-lawyer, XXX Limited’s director ZY applied to voluntarily dissolve XXX Limited, which subsequently came into fruition 13/11/12. This means that XXX Limited did not exist in law after that date, and although XXX Limited had just prior to that date been granted an Appeal, its strike off meant that ZY had no legal standing to continue with that or any other appeals. Hence, I would like to claim expenses for costs incurred between that strike-off date, 13/11/12, and 13/02/14 – most notably for my having to prepare for and physically attend the Manchester Tribunal Court on 23/04/13 (see page X), five months after XXX Limited ceased to exist.

 

The second period is for costs incurred between and including 14/02/14 to 25/02/14. This period accounts for time and resources spent preparing my Respondent’s Answer following the Appeal notification UKEAT/0052/14/RN, dated 11/02/14 (received 14/02/14), which relates to yet another Appeal by ZY on behalf of the non-existent XXX Limited (the business of which still exists, by the way, at the same premises, with ZY still in charge, just under a different title).

 

COSTS INCURED FOR PERIOD 13/11/13 – 13/02/14

 

The 23/04/13 Court Attendance at Manchester lasted from 10 a.m. until 4.30 p.m. – this is a matter of public record – a total of 6.5 hours. To travel to and from court took a total of 1.5 hours, and parking and fuel costs came to a total of ten pounds. Pre-attendance, I had to both revise case history, help construct a bundle, and find and submit evidence, the combined effort of which took a total of (at least) ten hours. Please also note that I attended the Court on my own, and acted as my own council, so I am not asking for other persons costs on this matter, but am seeking 34 pounds per hour as the litigant in person.

 

Court attendance: 6.5 hours.

Case Revision: 10 hours.

Travel to and from court: 1.5 hours.

Total wasted time: 18 hours (minimum) @ 34 pounds per hour.

Fuel & parking: Ten pounds (minimum).

Total costs for this period: £622 (Six-hundred and twenty-two pounds).

 

COSTS INCURED FOR PERIOD 14/02/14 – 25/02/14

 

[...Under construction...]

[steampowered]

Good stuff, I would just add a specific reference to the EAT rule under which you are claiming costs and which sets out the relevant rate. It is best not to assume the judge knows which rule you are referring to.

[Hair Bear]

Thanks

[Pusillanimous]

You should only claim "wasted costs" (a legal term) against the other party's legal advisers.

 

With your respondent it's straight forward costs.

 

If he did not bother turning up, you should urge the EAT that they are obliged to award the costs against the delinquent party, as there need not have been a hearing at all. Look up the EAT Practice Directions under "Costs", and quote the section no.

 

 

It is all rules and regulsion bound, so help the judge go straight to the relevant rule.

[Hair Bear]

Something like this?

 

In light of the wasted costs that have followed, therefore, the Claimant's seek an order for wasted costs against the Appellant’s representative, XXX, in accordance with Rule 34C on the basis that XXX's conduct was improper, unreasonable and/or it is reasonable to expect him to pay for the Claimant’s wasted costs as a result. A schedule will be prepared in due course.”

 

And should I write my name where it says "the Claimant" ?

[steampowered]

Wasted costs are basically an order that one side's solicitors should pay the costs because they wasted everyone's time through screwing something up. You cannot have wasted costs where the other side is unrepresented (as is the case here). Rule 34C is not relevant in this case.

 

I would forget about the reference to wasted costs and just refer to costs. You are claiming costs under Rule 34A (1) at the rate set out in Rule 34D (4) and 34D (5).

[Hair Bear]

So, to be clear, since I'm not the brightest star in the galaxy, I should literally write: "I am claiming costs under Rule 34A (1) at the rate set out in Rule 34D (4) and 34D (5)." ?

 

Also: The other side was a company, let's call them B Limited, and they were represented by their director and company secretary Mr X. It is he who wasted my time and I am claiming costs against him, as the company secretary. When the barrister who had won my 2012 Tribunal came back into the picture briefly, it was he who drafted that Respondent Answer and also wrote the above (that's where I've just nicked it from).

[steampowered]

Yes, apologies, on reflection 34C may well be the correct rule. The term 'representative' in the EAT rules appears to have a wider definition than the concept of 'wasted costs' for the purposes of court hearings under the Civil Procedure Rules.

 

The appeal was in theory made by a company and the individual was representing the company for the purposes of the appeal. Perhaps just hedge your bets by saying something like 'I am claiming costs against Mr xxx under Rule 34 A(1) or, alternatively, against Mr xxx under Rule 34C as xxx Ltd's representative, at the rate set out in Rule 34D'. This will be enough for the judge to understand what you are asking for.

[Pusillanimous]

Wasted costs are dependent on the judge's view of the legal representative's conduct, so you migyt want to highlight any incompetencies and wanton delays. Simply drafting a response would not qualify as a wasted cost. IMV. You have to show that they ought to have known better, so focus on all conduct that delayed your case outwith the normal bounds of expected conduct and professional competance.

[Hair Bear]

Costs Update. The results arrived today, apparently the EAT took place on 7th November 2014.

 

Firstly, thank you Steampowered and Pusillanimous for chipping in with some great advice. Unfortunately, though, it hasn't seemed to matter. Whilst the Judgement started off superbly well, with the Register slating the other side ("I find Mr. X's contention that he [me] was an employee of the company frankly risible"), the good news soon petered out:

 

"Once the information was available to him [meaning that other side couldn't continue their Appeal because they no longer existed in law], the drafting of the Answer should have taken less than an hour. Therefore I am not minded to quantify any significant costs to as due to him. I therefore refuse the costs application."

 

What ticks me off the most is that the other side didn't even have to pay a single penny. He must have a been sprinkled with fairy dust at birth. I mean, although the drafting of the Answer didn't take long, to literally download the questionnaire, then type on it, then scan it, then upload it to email and send, all takes at least an hour. So why didn't I at least get one hour's worth of money? Even a pound for thirty seconds would have given a smidgen of satisfaction.

 

To add to my woes, I was going to stress this in the appeal (and ask you lot if you know of a similar case where they managed to obtain all the money, so I could rebuttal - I had claimed for 60 hours, the amount of time wasted writing a lengthy Answer prior to my discovering that they couldn't actually continue). However, when I emailed the Register today to ask when the Appeal deadline is, the reply instructed me: "on the 14th November"! And I only got the letter this morning! I have emailed them back stating that they had previously agreed to not only send me letters but also to email me the same (because I have a problem with post arriving late). So hopefully they will grant me a further say. All thoughts are welcome.

[Pusillanimous]

Your missing the appeal deadline will not cut ice with them. You would need to explain why. The court has no obligation to remind you.

 

It is just as well, as you'd likely be wasting your time, as appeals against costs verdicts succeed so rarely, it would have made legal news. The reason being, the tribunals have very wide powers when it comes to costs decisions so an appeal court has scant jurisdiction to overturn them.

 

At least you tried. Ho hum.

[Pusillanimous]

PS Which judge was it?

[steampowered]

Good news that the appeal has now been formally dismissed. Time to seek an order that he attends court for questioning in his capacity as a former director of the company for questioning about the company's assets?

 

The costs decision is unfortunate. Unfortunately I think it would be hopeless to appeal that. Costs decisions are very difficult to appeal (the logic being that you would otherwise end up in a never-ending cycle of litigation where people just keep appealing).

[Hair Bear]

Judge: "MS P DONLEAVY, REGISTRAR IN CHAMBERS".

 

Regarding the costs decision: I also included time spent in court last year, which was after the company had ceased to exist. Of this, the Registrar wrote "I have jurisdiction only to consider the costs incurred in this court in the appeal lodged on 3rd July 2013. If the Respondent wishes to claim costs in the employment tribunal, he must make an application to that tribunal." Can I still do that? If so, how do I go about it?

 

Regarding "Time to seek an order that he attends court for questioning in his capacity as a former director of the company for questioning about the company's assets?": Are you talking about trying to get the £17K that the company owes me transferred to him? Or are you speaking about having him perhaps getting some sort of fine for his behaviour?"

 

Thanks, gents.