Tribunal claim - "Without prejudice save as to costs" letter received, advice appreciated

[Bexxia]

My partner currently has a case against his ex-employer (NHS) with the employment tribunal for unfair dismissal. This morning he recieved a "Without prejudice save as to costs" letter from the respondant's solicitor.

 

I understand this should be a settlement letter, however it appears to be little more than an attempt to scare my partner into withdrawing his claim. The soliciter states they feel his case is very weak and will likely lose in court, so this is the "offer":

 

On this basis, we would like to invite you to withdraw your claim in order to avoid unnecessary time and costs incurred, resulting in an application for costs made by ourselves. If you do withdraw your claim at this stage, we will, in return, agree not to pursue you for these costs. Please note the Tribunal has the power to award up to £10,000 and are now excercising this power much more frequently. We will seek to recover the full amount of £10,000 as the Trust's legal fees will be in excess of this amount.

 

Am I right in understanding this is an incorrect use of the "Without prejudice save as to costs" title? As such, can we forward a copy to the Tribunal?

 

My partner is understandably worried and his immediate response to me was that he should drop the case. I think the respondant is just trying to scare him and this letter is all bark and no bite.

 

I should add that my partner is still unemployed and living on JSA. I am a stay-at-home mum to our 21-month old son and I haven't been able to work for several years due to ill health, though I don't claim any benefits myself. We have no assets (we rent our home) probably the most valuable thing we own is our car which isn't exactly worth much. Would the judge award anything like ten grand when there is no means to pay?

 

My partner will speak to his advisor at the CAB first thing on Monday, but as usual these sorts of nasty letters always turn up on a Saturday when there is no one available. Hoping someone here may be able to give some reassurance in the meantime.

 

Many thanks.

Edited April 14, 2012 by Bexxia

[Conniff]

This is a scare letter, more because they are scared of you winning. How strong do you feel your case for unfair dismissal is, are you certain you can win?

I assume you are pretty sure or you wouldn't have started the claim. If you have legal representation, then show the letter to them for their opinion.

 

The £10,000 is also a max, like tv license up to £2,000 fine etc but in reality no one pays more than a couple of hundred and the judge doesn't have to award anything,.

[becky2585]

Yes, this letter is without prejudice. It does actually contain an offer of settlement, namely that if YOU withdraw the claim, THEY won't pursue you for costs.

 

You are on a cost warning now though, so I'd seek legal advice as to whether your claim is strong enough to pursue. If its anything better than hopeless, it's worth carrying on, as costs are only awarded for vexatious or misconceived claims, or in cases where a high settlement offer was rejected and several months later the claimant went on to receive less.

[becky2585]

It is possible that the judge could award the maximum amount, yes, but I've only seen it happen twice.

 

They may take your finances into consideration, but I've seen previously where a full costs award has been made the person having to go bankrupt. That isn't the normal scenario by any means, but it could happen.

[Bexxia]

Thank you for the quick replies.

 

conniff - We feel our case is pretty strong. The ex-employer is basing the core of their argument on how rigidly they followed policy, my partner feels the decision was unfair and no discretion was given to his circumstances. He has been seeing an advisor at the CAB, he does not have any formal legal representation at this stage.

 

Becky - The claim is certainly not vexacious or misconceived, every single person we have spoken to, from Union reps to ACAS to CAB have said our case looks solid. Thank you for sharing your experience of this award being granted.

 

In the letter, the solicitor quoted two other cases (Spencer vs Paragon Wallpapers and Lynock vs Cereal Packaging) as examples of why we are unlikely to win. They also added this statement which I do not fully understand, it seems to imply they know what the judge is going to say:

 

Given that the Tribunal must merely establish whether the decision was reasonable decision and, it is not for them to substitute their decision for that of the Trust's, we consider your claim for unfair dismissal will fail, if you proceed to the Tribunal.

Edited April 14, 2012 by Bexxia

[lbruk]

As far as i was aware, costs are not allowed to be claimed against the claimant unless the tribunal orders it?

[becky2585]

Indeed, but clearly a party would have to apply to the tribunal for them to look at this request...

[transient]

They have sent it for the purpose to scare you as it is without predjudice this cannot be shown to a judge nor taken as a admission to guilt not sure though if this applies in a tribunal scenario but assume it would be the case, especially as they are using it

 

The save as to costs bit is basically saying the believe you have no means to pay their legal fees if awarded in their favour and I know if this is in a county court they can apply to the judge to ask for a deposit payment to be held to cover the estimated fees, again not sure if this is the case for a tribunal

 

I would personally reply “without predjudice” that you declline and wish to let it take its natural course, you will probably receive another 'offer' in the interim if that does not take your fancy reply the same and carry on, this is on the basis of your advice and belief in the strenght of your case

 

Good luck

[Bexxia]

Thanks transient, that's the kind of response I was thinking we should send. I *think* the judge can ask for a deposit at a pre-hearing but not entirely sure. The tribunal haven't indicated there is any doubt as to the validity of my partner's claim and have already given us a hearing date, so I don't think they are likely to ask for any up-front costs now.

 

We're very open to a settlement offer and would prefer to conclude the matter out of court. I understand that the NHS, like most public sector organisations, don't tend to negotiate though.

[transient]

I am more au fait with county and criminal preceedings than employment law inclusive of tribunals but as always some things overlap

 

You are correct with regards to local and central government departments as well as the NHS don't tend to negotiate as this tends to open them up to spurious claims a bit like the fact governments don't pay ransoms othwerwise everyone would chance their arm at kidnapping!

 

If the figure you have in mind is not far off their offer then you could respond in the same context “without predjudice - save as to costs" and state exactly the same in your letter about the costs that could be levied if not found in their favour and that a full and final settlement figure of £xxxx will bring proceedings to an end and they will not meet half way they will either respond yay or nay.

 

If you wish to go this route then you need to get advice\research on what you would expect your minimum award would be if you were successful in your case and what you receive as a maxium award because you don't want to sell the issue short as such, you also need to judge the prospective award based on fact and not what you think you should deserve, always good to google other tribunal cases to get a feeling for the awards.

[andydd]

This letter appears to be along the lines of 'drop hands', (i.e both sides want the case discontinued and they both swallow their own costs).

 

How much is your claim roughly for ?. It may appear for them to claim to spend £10,000 when the amount in question is far less, to be questionable.I dont have experience of ET's but I know about LVT's (for landlord/tenant) issues and I believe ET's work in a similar manner and that is that generally costs are not recoverable unless one side has behaved 'unreasonably', this is normally a high threshold and from what you have said, I cant see how it would apply, (certainly not for a sum of tens of thousands).

 

It may be worth writing your own Without Prejudice letter putting forward a sum you would be willing to accept ?. This could then be shown at the end of the case, showing that you have at least tried to settle (unlike their offer which is to settle for nothing !).

 

In general Court a Part 36 offer can be used to put forward your offer more forcefully but I assume they dont apply in tribunal cases.

 

Andy

Edited April 15, 2012 by andydd

[Bexxia]

transient - their offer was nothing, so anything we can counter-offer can only be good! I'm not sure whether we should send a fixed counter-offer or simply inform them that we are happy to discuss a genuine settlement, my partner will discuss this with CAB and will probably give ACAS a bell too as they're no doubt familiar with this type of letter.

 

andydd - The figure we have stated in the Schedule of Loss is just shy of 20k. We were rather surprised at this initially, but that's how it works out based on my partner being a long-time, reasonably well paid employee and taking into account the earnings he has lost. With his ex-employer's alleged legal fees of more than 10k, it would cost them a fair bit if they lose. I agree that making a fair settlement offer of our own should look favourable on us in court.

 

I will look into the Part 36 offer, thank you.

[becky2585]

I wouldn't make a Part 36 offer as its next to meaningless for the ET - they only really apply to the county courts as the PP mentioned.

[Bexxia]

OK, thanks Becky, I won't bother looking into that if it's not relevant.

[transient]

Apologies when I read it for some reason I assumed they made an offer in that case don't put any monetary amount you would consider and just reply 'without predjudice - saveas to costs' that you have no intention of withdrawing the case. If you would like them to possibly come back with an offer I would put at the end of the letter that; "we do wish this can be settled amicably for both parties but if not we are determined to see this out through due process"

[andydd]

Well..Id be tempted to send an offer saying youll accept £15k (or whatever you think is reasonable), you could put forward an offer for the amount to be discussed but thats kind of what arbitration/mediation is for and I assume that this isnt an option. If you are very confident of your case then they'd be rather stupid to risk paying out £30k including their costs but alas some solicitors seem happy to battle to the very end even if it costs more. (

 

In my case I started a court claim that was over the 5k mark and thus on the fast track, I was mostly confident with it but there were some faults with it, at an early stage I offered to drop hands but the defendant insisted I pay his costs so far of approx £5k (a barrister became involved), I stuck with it, amended my claim and he offered to settle, paying me a smallish amount but with no costs, so by dismissing my earlier Without Prej offer cost him over £6k.... Stupid !)

 

With Without Prej offers you can of course send as many as you like, perhaps going up or down in value as the hearing gets nearer, but dont get too carried away and send loads.

 

Andy

[Bexxia]

transient - No worries. I like the wording of your response, it's rather less inflammatory than what I would love to say lol.

 

andydd - Personally we were thinking of asking £10k though we'll be sure to take advice before deciding for sure. I understand that ACAS will try to negotiate on our behalf, but there's been no sign that the ex-employer is interested in going down that route. Well done with your settlement, to be honest it's the principle rather than the money that is important to us .

[andydd]

transient - No worries. I like the wording of your response, it's rather less inflammatory than what I would love to say lol.

 

andydd - Personally we were thinking of asking £10k though we'll be sure to take advice before deciding for sure. I understand that ACAS will try to negotiate on our behalf, but there's been no sign that the ex-employer is interested in going down that route. Well done with your settlement, to be honest it's the principle rather than the money that is important to us .

 

Well..I was gonna say £10k but thought you might be insulted..ha..obvioulsy the lower your offer the more pressure there is on them to accept it

 

Andy

[Bexxia]

Andy, when my partner first put in the ET claim we expected he might receive 1-2k if he won. What he really wanted was to be re-instated, though this is very unlikely now as his office is closing in a few months time. So basically, whatever we get is a bonus and we'd be happy to settle for a lot less than the Schedule of Loss figure, even 10k would be amazing!

[andydd]

I settled for a lot less than my original £5K claim, although some of it was a bit misconceived, my claim wasnt as important as anything like employment, just a landlord/tenant damages claim, still it was nice to see it end and a nice big cheque arrive:) I think the fact that I clearly had some sort of case and the fact my landlord had already spent 5K in legal fees with more to come convinced him to make me an offer (the only time he has done so), but Ive got an upcoming Summary Judgment coming up (basically to throw out his claim for relitigation/abuse of process at an early stage), I again have sent a lowish offer so lets see what happens

 

Andy

[noname84]

I have had exactly the same letter and declined in writing today acas called and asked how much I would settle for I stupidly said the amount in hindsight lower then I should have as the respondent will of course go in much lower if at all so I could kick myself I said my minimum without thinking kinda put on the spot! But it demonstrates I am looking to compromise and it's not all about the money and of course it's lower then my schedule of loss so hopefully I'm demonstrated I'm keen to resolve ! So should it get to trybunial hopefully that will look good in my favour but I dunno!!

[Bexxia]

Thanks noname, that's very useful to know. My partner spoke to ACAS yesterday and they weren't too concerned about the letter. They offered to send a reply with our own settlement offer, I think we will do this as they'll know how to word it best. Based on what you've said, I think we'll ask for a little higher than £10k so that we can come down to that figure later (hopefully).

 

He also phoned CAB but his advisor is on holiday until next week and they have no one experienced in tribunal matters in until Wednesday.

 

Andy, good luck with your recent offer, hope they accept!

[transient]

Good luck both keep the thread updated as I am subscibed

[noname84]

Oddly I've also had my date changed put back a month and extended to two days. What do you think this will have on the current conversations between me acas and the respondent as above?

[Bexxia]

Oddly I've also had my date changed put back a month and extended to two days. What do you think this will have on the current conversations between me acas and the respondent as above?

 

The solicitor representing my partner's ex-employer has also requested a postponement (due to witness being unavailable) and an extension to two days. Not terribly happy with either as we want this over with as soon as possible and without being drawn out, but we'll see if the Tribunal grants the requests.....

 

I doubt anything will change with regards to any negotiations you've got going on, you'll just have more time to do them.