Application of costs

[claireloupul]

They said its under rule 40, that my claim was misconceived.

 

Thanks

[becky2585]

Even if it was misconceived, you withdrew it - what more so they want?!

 

Hopefully you won't have much to worry about but make sure you attend the hearing in person.

 

Had they put you on a prior cost warning? Did the ET give any indication your claim had no reasonable prospects?

[claireloupul]

No nothing from the tribunal.

Yes a costs warning was givin.

 

In your experience what would you do?

 

Thanks

[claireloupul]

I was thinking of offering £300 and paying it monthly as the deadline is tomorrow just to draw a line under it do you think they will accept? Also do you think they are likely to proceed?

Should I tell them and be honest about my financial situation?

 

Thanks everyone

[Emmzzi]

if you have a spare £300 shouldn't that be going into your DMP??

 

How about "not panicking." as an option. Wait and see what happens?

[claireloupul]

I don't that's the thing, just want it sorted.

The dead lines tomorrow you see.

[SweetLorraine]

Hi Claireoupul,

 

if you can't afford to pay £300 a month for 10 months I can't see how making that particular offer before the respondent's deadline tomorrow gets the problem 'sorted'. In fact it may make matters worse for you.

 

I would guess that you might be very nervous at actually turning up for a hearing - the prospect seems to have got on top of you twice already - and here you are facing another one. The respondents may well be making that assumption as well.

 

From what you have told us you cannot afford to pay this costs application.

 

I believe that the judge at the hearing must ask him/herself if the claim was misconceived, and even if it was, should a costs order be awarded?

 

Indeed, the judge is also required to take into account your ability to pay any such costs, and even then if it is decided that a costs order is actioned there is still a question as to how much of a contribution should the claimant make to the respondent's costs?

 

In theory the respondents may be a long way from recovering any, some or all of the cost application amount.

 

They may be making the assumption that they can worry you into coughing up the cash before their costs application is actually tested.

 

Have you actually been given a date for the hearing by the Tribunal?

Edited September 19, 2013 by SweetLorraine

[Emmzzi]

if you don't have the money it'd be very foolish to make an offer!

 

I would turn up and see what happens. It might turn out better than you think and it certainly won't be worse!

[claireloupul]

Thanks, yeah your right its just a awful time to have this hanging over me with my dads illness but will take your advice and go to the hearin and will make sure I make a good statment.

[SweetLorraine]

....will take your advice and go to the hearin and will make sure I make a good statment.

 

Hi claireloupul,

 

your idea of a good statement and the Tribunal's idea may be two completely different things (I know that from bitter experience). You could probably do with some free legal advice (to prepare) from a local law centre or via your local Citizen's Advice Bureau.

[claireloupul]

Thank you, I am going to do that.

can I ask what your experience was?

 

Thanks

[claireloupul]

Sweetlorraine, I haven't been given a date for the hearing but I know its been accepted as I have spoken with them.

thanks

[becky2585]

Don't make them an offer. There's no point! Just go to the hearing - it will most likely be chucked out and you won't have to pay anything.

[SweetLorraine]

Thank you, I am going to do that.

can I ask what your experience was?

 

Thanks

 

Ah claireloupul,

 

I'm afraid I operated on a very emotional level rather than a more legal one. I got turned inside out by the respondent's legal bods before any meetings and, unrepresented, fell into the sort of 'this shouldn't be allowed', type of argument and I often got waylaid trying to knock down 'straw man' points raised by the other side (not really what the meeting was about) rather than arguing the legal points (which was what the meeting was about). I was terrified of turning up to a meeting without everything being just so. I think the other side sussed that and played on it.

 

It also turned out that I had a rather 'romantic' idea as to how the Tribunal would support me through the process.

 

It was horrible; a really horrible experience for me. I thought I could handle it - but I failed to. But that was a year ago. I'm OK now. I wish I knew then what I know now, which, I guess, is why I stay with this forum trying to give a few elementary (entry level) pointers to try to steer newbies clear of the rocks.

 

So these days its about trying to help people like yourself - its not about me.

 

It looks as though you have plenty on your plate without worrying unduly about this costs application.

 

If you are London based I can point you towards a couple of (free) legal centres with a good reputation (for advice) that could probably lend you a hand.

Edited September 19, 2013 by SweetLorraine

[claireloupul]

Thanks very much for that, its nice to hear from someone who has been through it.

im sussex based not london ( so going to do a little research.

so did they apply for costs against you?

Thanks

and thanks Becci im not going to.

[SweetLorraine]

I was busted and broken long before costs became an issue! (Enough about me).

 

It might be worth flagging up right now that even if the costs application does go against you - you may be able to appeal to the Employment Appeal Tribunal against that decision. But that is a long way down the road and hopefully the sensible decision will be made at the next hearing.

[claireloupul]

Thanks for that.

really appreciate it.

[Pusillanimous]

Sounds like the tribunal thinks there's a case, to have granted it. I wouldn't make an offer, as the tribunal have the power to take your means into consideration. Remind them of this. However, it is not obligatory but discretionary. So do take your papers along to show how hard up you are, ready to swear it on oath.

 

Try to show that the sum of money spent by the other party was voluntary over and above a certain amount.

 

I would guess it will be a lot less than £3,000. Figures show the average to be about £1,400. All you did was withdraw so probably won't even be that.

[Pusillanimous]

This extract from the folllowing website, should make you feel better:

 

http://www.morton-fraser.com/blog/employment/2652_awards_of_costs_by_employment_tribunals

-----

To give you an idea of the numbers, the most recent set of available statistics which cover the period from 1 April 2010 to 31 March 2011 show that costs were only awarded in 487 cases, compared to the 216,100 claims accepted during that period.

 

Of the 487 awards made in the last stats, the median costs award was £1,273, and there were only 4 awards over £10,000.

[SweetLorraine]

Hi Pusillanimous,

 

thanks for that, a useful article. Does anyone know why a Tribunal would refer the respondent's level of costs to the county court to be assessed? Is it because they might look unfeasably high?

[becky2585]

Hi Pusillanimous,

 

thanks for that, a useful article. Does anyone know why a Tribunal would refer the respondent's level of costs to the county court to be assessed? Is it because they might look unfeasably high?

 

Because prior to a few weeks back, only costs up to £10k could be awarded in the ET; anything higher had to go to the county courts for detailed assessment.

[SweetLorraine]

Because prior to a few weeks back, only costs up to £10k could be awarded in the ET; anything higher had to go to the county courts for detailed assessment.

 

I see, thanks becky2585,

 

what would that detailed assessment consist of?

 

For example what if the respondents in claireloupul's case applied an outrageous hourly rate in order to 'inflate' the total cost to £3k - if that is what they are doing how could it be challenged?

[Pusillanimous]

It can be referred to county court for assessment if the tribunal considers the conduct of the party to have been unreasonable. In the 4 to 10 cases a year that get assessed this way, there appears to have been an element of vindictiveness or dishonesty in the claimant bringing the case.

 

Current tribunal cap is now up to £20,000.

[claireloupul]

It can be referred to county court for assessment if the tribunal considers the conduct of the party to have been unreasonable. In the 4 to 10 cases a year that get assessed this way, there appears to have been an element of vindictiveness or dishonesty in the claimant bringing the case.

 

Current tribunal cap is now up to £20,000.

 

 

Thanks for that,

So are only costs above £20,000 are the ones that go to CC or can the ET trans any costs order?

Also as well as the £3000 plus vat they are saying they will try for further costs of £1500 plus vat if I didn't accept there settlement and it goes to a hearing.

So £3000 for not going to a hearing

£1500 for going to a hearing that could only last 15 minutes is like sweetlorraine said very inflated but also there figures don't seem correct.

 

Thanks for that article It has put my mind to rest.

Taking into account that article what are the chances of the other side realising that and defending the claim? Or are they likely to pull out? Just thinking of all avenues.

 

Thanks

[Pusillanimous]

No. The tribunal is limited to £20,000. Any more than that, it has to go to CC for assessment of costs. The Employment Appeals Tribunal has ruled that the tribunal needs to name a cap, however. For example in a recent case, the County Court costs were £260,000 but the tribunal capped it at one third (£87,000) whch was then limited by the CC to £60,000 after assessment.

 

If it is "with indemnity" then the claimant has to pay the whole lot. There has only been four such cases, one a trade union, another a corporation and the other an individual. If you search the EAT judgment database under "costs" you can find the individual's case there (I think the party's name was "Howland"). It was sent back to the tribunal to reconsider putting a cap on it to about £40,000, the value of his remaining mortgage.

 

He was dismissed for something where it was fairly obvious that he or his wife were the culprits (mischievous emails traced back to his wife's internet IP), so the tribunal were not impressed he persisted in pursing the case.

 

You could make an offer to the other party of what you think would be fair and affordable. They are probably panicking they might get nothing or a nominal sum such as £200 so are pressurising you. No harm negotiating your own settlement rahter than have the court do it for you.

Edited September 20, 2013 by Pusillanimous