Can I ask for costs "litigent in person" for a tribunal case?

[MONX]

A mediator has contacted us and forwarded a very paltry offer from the employer 20% of amount we aledge they owe us in unlawfully deducted wages.

 

Can we put a counter offer to them including our costs for all the research I have had to do etc as a litigent in person, i did this successfully when getting a SD set aside at court, i know that a tribunal is not a court but can i put forward a request for costs?

[RachelMD]

You can only ask.

I think the respondant would have to really feck the ET Judge about for anything to be awarded though.

[MONX]

To be honest, if they mess the et judge around a 10th of the way they have messed us around (s)he will be throwing the book at them! lol.

[RachelMD]

It's amazing how tolerant EJ's are towards the respondant.

They're obliged to be in accordance with the 'Indemnity for the Ruling Class Act'.

[kevinob]

Without Prejudice Save as to Costs.

Because the Courts cannot order disclosure of “Without Prejudice” negotiations (or documents) against the wishes of one of the parties of those negotiations, this obviously will mean that in some instances the Court, when it comes to the question of costs, cannot decide whether one side or the other was unreasonable in its actions.

Although, as noted in Unilever v Proctor & Gamble [2000] WLR 2436 at p2445, there are exceptions to the general rule of non-admissibility of “Without Prejudice” documents, there is no general exception of non-admissibility when it comes to the question of costs.

However, the application of the non-admissibility rule in respect of “Without Prejudice” documents can easily be avoided in the arbitration context by the simple expedient of using the Calderbank formula (Calderbank v Calderbank [1976] Fam 93) of negotiating “Without Prejudice Save as to Costs”.

In respect of litigation, where a Defendant believes that there is some merit in the Claimant’s claim, but not as much as the Claimant claims, then the Defendant can make a payment into Court of the amount he thinks the claim is genuinely worth, and must notify the Claimant of this action. If the Defendant sets the payment into court at the right level, this gives him some protection from liability for the Claimant’s legal costs assuming that the amount eventually awarded to the Claimant by the Court does not exceed the amount paid into Court.

It is not possible to pay money into Court in Arbitration, however in the Arbitration context, the Defendant (known in Arbitration as the Respondent) writes to the Claimant offering the amount he thinks is properly due, marking the letter “Without Prejudice Save as to Costs”. This letter is otherwise known as a “Calderbank” offer letter.

The Arbitrator will not be told about this offer until after he has made his decision on liability. If the amount he awards the Claimant is less than or equal to the amount included in the Respondent’s “Without Prejudice Save as to Costs” (Calderbank) offer, then the general rule is that the Claimant should pay the Respondent’s legal costs (and his own) from the date the offer is made. The logic behind this is that the Respondent has correctly assessed the justified level of the Claimant’s claim, and the Arbitration from that date on was a waste of time and money.

[MONX]

Thanks for that kevinob....i think lol.

 

I guess my question was wether it worked the same way in a et tribunal as in a "normal" court.

 

My idea is that we reject their first offer and by giving a list of what we are asking the ET Judge to consider which would include costs of litigant in person that they will offer us something nearer what we feel they owe.

 

I believe the first offer is basically a worm to see if we will bite, to be honest I kinda want our day in court and show them to be the hedgeborn harlots that they are however if they were willing to be a bit more reasonable and just pay us the wages owed and expenses for the trip to the appeal hearing then we will accept and be thankful however I feel it will only go so far with them as they have been adamant that there is no "legal requirement to pay" just because it says in their contract that they "may" suspend without pay!

[honeybee13]

Hi Monx.

 

My thought when I read your post was that if you're still up for a fight, maybe you don't have too much to lose. I don't know if their offer is reasonable or not, tbh, but I can see the attraction of the day in court, which isn't going to cost you much but could cost them in lawyer fees and a lot of their time.

 

Unless the judge ever indicates that your claim is vexatious, which no-one here has said [and you know we're not tactful ]. Then you might be misguided to go ahead, but that hasn't happened, has it?

 

I hope you're feeling OK.

 

HB x

[MONX]

Thanks HB

 

Ive pm'd you with the details.

 

Yeah i agree, we have nothing to lose. If nothing the ET will be an interesting morning.

 

Monx x

[MONX]

Oh dear!

 

We rejected the respondants offer of 20% of the amount we believe we are owed, we then gave them a counter offer of 80% thinking that if they wanted to avoid going to the tribunal they would come in somewhere around sixty percent and we would be in a position to accept....some of you may know I am off work with work related stress at the moment and to be honest the prospect of representing the OH in the tribunal is not what I need just right now.

 

Today the respondants came back with a slightly improved offer of just over half what we were willing to accept....I feel I would be letting the OH down if I suggest that we accept it as I was soooo gung ho at the beginning. The truth is he is so lovely he will just want me to be happy and not further stressed but it really makes my blood boil...in my more lucid moments I want my day in court but most of the time I wish we could just leave the whole thing with our dignity.

 

I have drafted two emails, one accepting the offer and another rejecting it and challenging the respondants to meet us at the tribunal and leave it in the hands of a Judge. Not sure which email to send...got to admit having a really day today, will obviously leave it now until Monday but wondered what people thought...should we accept and walk away or stick it to them?