ET hearing costs

[sam1888]

How can it be fair for the Respondent to pressurise one person like this? e.g. when you but goods and services you are given a cooling off period (e.g. 14 days) in recognition of a pressure situation. If anything these are more pressured yet there is no similar mechanism.

 

Please see a direct msg too.

[lbruk]

Its not fair, but legal proceedings are not about what is fair, they are about what is legal. The solicitor is under an obligation to do the best by his client, that includes getting the claimant to drop the case.

[madari]

The argument here is simple, `without the benefit of legal advise an unrepresented claimant was pressured into withdrawing her sex discrimination claim`.

 

Further,if there is going to be the threat of a `costs order made against the claimant` hanging over the claimants head at this difficult time then the ET should be asked to make a `deposit order` that way every one knows where they all stand.

 

But first thing is first....write to the ET.

 

Good luck

[becky2585]

You may have grounds for complaint against the lawyer on the other side. Here's an extract from Rule 10 of the Solicitors' Code of Conduct:

 

"Particular care should be taken when you are dealing with a person who does not have legal representation. You need to find a balance between fulfilling your obligations to your client and not taking unfair advantage of another person. To an extent, therefore, 10.01 limits your duty to act in the best interests of your client. For example, your duty may be limited where an unrepresented opponent provides badly drawn documentation. In the circumstances you should suggest the opponent finds legal representation. If the opponent does not do so, you need to ensure that a balance is maintained between doing your best for the client and not taking unfair advantage of the opponent's lack of legal knowledge and drafting skills."

 

Basically, if we are up against an unrepresented party, we cannot use that to our advantage as it's unethical and could result in disciplinary action being taken against us (including now naming & shaming on the SRA's website).

 

Clearly that only applies if they are a solicitor (or ILEX lawyer as they are also "guided" by the SRA rules) or at the very least if they are part of a solicitor's practice. The rules don't apply to an unqualified individual acting on behalf of, say, an "HR Consultancy" type company, but they do apply to anyone with SRA membership.

[becky2585]

A deposit can only be ordered to be paid in at a PHR which doesn't get us much further.

 

Yes, the argument is simple, and it seems logical, however I don't think it can proceed as the claim was still withdrawn, whatever the reasoning behind it.

[honeybee13]

How can it be fair for the Respondent to pressurise one person like this? e.g. when you but goods and services you are given a cooling off period (e.g. 14 days) in recognition of a pressure situation. If anything these are more pressured yet there is no similar mechanism.

 

Please see a direct msg too.

 

Hello again Sam. It's not recommended to ask for advice by PM unless there are very specific circumstances. This is for your own protection. If you have any queries on this, please PM myself.

 

My best, HB

[sam1888]

Thanks.

[sam1888]

A deposit can only be ordered to be paid in at a PHR which doesn't get us much further.

 

Hi, - what do you mean can only be paid in at a PHR?

- I thought a deposit order is like a payment on account of a deposit if you go forward at a point in the case, and if it goes against you you lose that deposit?

[madari]

Hi Sam

 

Your thinking is correct, if you are ordered to pay a deposit then it is up to you to continue with your claim by paying the deposit or withdrawing your claim.

[sam1888]

Hi Sam

 

Your thinking is correct, if you are ordered to pay a deposit then it is up to you to continue with your claim by paying the deposit or withdrawing your claim.

 

So how would it work where the judge in my case added it to the CMD order for the PHR, i.e. wanting me to have a costs threat of the PHR and prior to it, PLUS separately a decision order. It's funny, he seems to have forgotton I am the victim. But they are a national charity, so I am not blinded to that sway that may carry as a not for profit Respondent. :?

[sam1888]

Becky,

 

What would you say would be the costs threats to me of such a letter attempting this to the tribunal?

 

Also, there is also a procedural point that the Judge seems to have used an old letter of mine, that should have been destroyed, from a case years ago which I lost. But he seems to cite it as the reason for the PHR and costs warning in respect of a medical issue, that i refer to in my current case. I wrote to him correct what seems to be a mistake with all the medical information but he ignored it and made no reference to it only that the PHR goes on.

[sam1888]

Does anyone have experience of how hard is it to prove a sex discrimination claim?

[lbruk]

I am going through one atm, so far they have not disputed that it happened, but i expect they will soon.

 

I am male btw so its a very interesting case! To be honest the event happened or it didnt, its up to the tribunal to decide whether its discrimination. All you can do is say what happened.

[sam1888]

I am going through one atm, so far they have not disputed that it happened, but i expect they will soon.

 

I am male btw so its a very interesting case! To be honest the event happened or it didnt, its up to the tribunal to decide whether its discrimination. All you can do is say what happened.

 

Surely as with any discrimination it's subjective and so they can decide either yes or no. What I mean is there is enough leeway if a judge wants to let the employer off.

[madari]

Hi

 

How it works is that you write to the tribunal instead of wasting valueble time.

 

You should be writing to the Et ASAP and demanding a PHR and a deposit order instaed of a costs order against you.

 

If you have not sent anything in writing by the end of to-day before 5:00pm then I will not bew wasting any more of my time on your issue.

 

Good luck

[lbruk]

well, its not that simple, either you have been treated differently because of your sex, or you haven't. If you are having to ask this question of yourself, then i don't think your case could be that strong!

 

What you need to prove to the tribunal is that the act of the employer was completely driven by the fact that you are a different sex. It's not easy, you need to find a case or evidence that supports this. You have the burden of proof of the event happening. The respondent has the burden of proof that their decision was not discriminatory.

[professional1964]

Hi

 

How it works is that you write to the tribunal instead of wasting valueble time.

 

You should be writing to the Et ASAP and demanding a PHR and a deposit order instaed of a costs order against you.

 

If you have not sent anything in writing by the end of to-day before 5:00pm then I will not bew wasting any more of my time on your issue.

 

Good luck

 

Madari do you not think that Sam1888 has endured enough pressure (as she has pointed out in her question she was pressured into making a decision she regrets). I am not legally trained, but I do empathise with her as a human being and an unrepresented one at that. I think she may want to consider advice before acting. I feel your comment "I will not be wasting any more of my time on your issue" is putting more pressure on her.

[becky2585]

I can't say for sure, but it is a real risk of them pursuing you for costs, unfortunately.

 

A deposit order cannot be ordered without a PHR being convened, ie a Tribunal will not just write to you and order it without a hearing.

 

Deposit orders and cost warnings are made where a case has "little reasonable prospects of success". The law isn't with you here, so I'd say the chances are quite real of costs being awarded if you attempt to reinstate the claim.

[becky2585]

Discrimination claims actually aren't that tough.

 

All you need to do is establish sufficient facts to determine that discrimination *may* have occurred, and then the burden of proof switches to the respondent to have to disprove it.

 

Unfortunately the risk with litigation is that sometimes, wrong judgments are made. In a 50/50 case, it's open to the judge to find in favour of whichever party he happened to like as a witness! So it's important to come across well on the hearing day.

[madari]

Madari do you not think that Sam1888 has endured enough pressure (as she has pointed out in her question she was pressured into making a decision she regrets). I am not legally trained, but I do empathise with her as a human being and an unrepresented one at that. I think she may want to consider advice before acting. I feel your comment "I will not be wasting any more of my time on your issue" is putting more pressure on her.

 

Pro, you are misintrepreting my comments, I also empathise with her but the problem is that if anyone is seeking an amendment to their claim then they MUST ACT QUICK otherwise you can forget it. Unfortunately thats how the system works.

 

What I am trying to get accross to her is that it is no good keep asking for advice on here when she has nothing to lose by sending the ET something in writing and at the same time keep posting for more advice on here.

[sam1888]

Deposit orders and cost warnings are made where a case has "little reasonable prospects of success". The law isn't with you here, so I'd say the chances are quite real of costs being awarded if you attempt to reinstate the claim.

 

 

- are you saying that if I just make the enquiry as to whether it is possible that I could get hit with the full costs? How is that even fair?

- even though there also seems to be a process error too?

 

Can you please confirm once a case has closed how long the papers should be kept for? I have asked two offices and they say 1 year, and if that is the case, how can a judge bring out an old letter re me that was well over that age?

Edited May 21, 2012 by sam1888

[sam1888]

An update: have submitted in my letter to the ET by way of a review. Now I wait to hear back from the ET. :?

 

Thank you kindly for those who have all contributed feedback or messages of support. It is very appreciated.

[honeybee13]

Fingers crossed for you, Sam.

 

Please let us know how it goes.

 

HB

[sam1888]

Apparently the tribunal staff say the old case papers are kept for 2 yrs where it was appealed. Also, that a withdrawal can be looked at by a fresh judge, but the rest in respect of decisions by the present judge, re using an old letter and applying costs, can only be reviewed by the same judge or via the EAT.

 

My letter that is in now, I have asked them to not refer it back to that same judge, they say they can't determine that. So what can I do, as surely if any judge sees a request by a claimant for someone independent to review it they will not be happy and probably hit me with costs. In which case I have to withdraw the letter or only refer to the withdrawal not the old letter being used incorrectly. :?

 

I have amended the letter to include only the withdrawal aspect.

 

Is there any point submitting a query over the case management back to the same judge to review, and ask him to change his decisions on it? The admin staff said there is no mechanism to review by another judge at the same court, you have to go to the EAT then. Is that correct?

Edited May 22, 2012 by sam1888

[madari]

Hi

 

It is very difficult to advice on a claim that we know little about.

 

[1] What has the old letter you keep referring to got to do with your current claim? you can object to this document being part of your claim if it has no relevance.

 

[2] It is highly unlikey that you will be granted a review...you shoulds have requested a PHR instead of a review.

 

[3] All you can do is wait and see , the problem is that if you are not granted a review then you must appeal to the EAT within 42 days of your withdrawing your claim.

 

I strongly urge you to seek good legal advice before it is too late.

 

Good luck