Tribunal Order Query

[standupforyourself]

Hi

I am currently defending an application for costs claim against me after having my claims against my employer dismissed ( unfair dismissal).

The tribunal have made their judgement but they haven't made an order for costs as yet. There was an order for me to disclose all my financial information and that of anyone in the household with who I share financial arrangements. I have submitted all of my financial information on time in full and the respondent has six months worth of my statements ( this has been going in for some time now). However, the tribunal are now asking for my husbands financial details and he is refusing to submit them as he is not party to the proceedings or named in the case. We have totally separate bank accounts and one joint account which we contribute equally to and this maintains our living expenses ( which I have submitted details of). I do not have access to any of his finances and we have nothing else in joint names or financial links anywhere. Even our home is in my name solely.

I have just received a letter from the ET asking me to comply with the order in its entirety and am worried that I cannot provide anymore info as I don't have access to nor will my husband provide me access to his finances. They have everything of mine and visibility of the bills etc that we share. I am concerned what will happen now as I have complied with the order as much as I can do.

Any help or advice please? Many thanks,

[smokejumper]

Good for your Husband ;-) I agree with his attitude.

[SweetLorraine]

Hi standupforyourself,

 

sorry I can't directly help with your query (it is a bit of a technical one).

 

Not a legal professional myself - so hopefully someone who is would can confirm - but are you aware you can ask the ET for a review of the Tribunal's judgement (and later any subsequent decision to award costs)? (I think you have up to 14 days from the date on the judgement itself - as opposed to when the hearing took place). I think requests for reviews usually get the knockback but a worthwhile step if you then appealed the ET's judgment to the EAT.

 

Indeed if you wish to refer a judgment (or the subsequent costs award element) to the Employment Appeal Tribunal - you have 42 days to submit such an appeal to the EAT from the date on the signed ET document/judgment. The sooner the better though - i.e. don't leave it to day 40 and counting.

 

You can seek free legal advice through your local CAB (if you like queueing).

 

You are also entitled to ask the ET for full written reasons as to how they reached their judgement/decisions (and how they arrived at the level of costs).

 

Hope that helps a bit.

[SweetLorraine]

Good for your Husband ;-) I agree with his attitude.

 

I agree smokejumper, but does that really help the claimant? Leaves her in a bit of a bind with the ET, who may not be that impressed with her husband's (understandable) stance.

 

It might be worth the claimant ringing up the ET service (they should have plenty of time on their hands these days given the drop off in claims) and speaking to them about her situation?

[SweetLorraine]

Thinking about it standupforyourself, did the respondents warn you in writing beforehand that they would apply for costs if your claim failed? Did they give you an indication as to the level of costs they would be seeking? Did they submit a costs schedule to the Tribunal at the hearing?

[standupforyourself]

Hi

Thanks for the responses. Yep- I understand you can appeal a costs decision but I am also aware of the lack of success in doing so and then the further risk of more costs if the appeal was unsuccessful. I guess I was more concerned as to what the ET could order against me as a result of my husband not sending in his financial info. I believe there may be technicality here on who they can and can't order info from? If you aren't named in a case then can they actually order you to provide information? Also I am aware that the tribunal will view this dimly and it will ultimately be me that suffers when/ if they make the costs order. Tribunals can issue fines up to a thousand pounds for non compliance but would I have to pay this if I have complied which everything I possibly can ( albeit my husbands details which I can't access)?

[SweetLorraine]

Give the Tribunal service a ring for advice. I think the Tribunal like to consider all your means and that could include all incomes into the home and all expenses out of it.

 

Did the respondents give a the Tribunal an indicative figure as to how much their costs would be in total?

[standupforyourself]

Yes-it was in excess of 100k which is extortionate particularly as it was only a 4 day hearing. From the judgement my claim was brought for genuine reasons but it was not agreeing to their offer to settle and an order that wasn't complied with ( direct result of my solicitor at the time not asking me or telling the info had been requested). From reviewing past costs cases the large awards are where people have behaved vexatiously or lied. I have not been found to have done either of those. I just don't want to antagonise the tribunal panel but I simply do not have access to husbands info. Will ring the tribunal service as you have suggested and see whether they can help - thanks for the suggestion.

The respondents solicitors have written claiming that i could be subject to a summary conviction by not complying but surely if I can't access someone else's bank info and they won't provide it then there is nothing else I can do! Feeling very stuck in the middle .....

[steampowered]

Talk of a summary conviction is nonsense I think. Clearly, if the husband is refusing to give the info you can't provide this as it is outside your control. All you can really do is write to the Tribunal and the other side advising them of this. Although the other side could potentially invite the Tribunal to draw implications that your husband has money and therefore you can afford the costs order.

[standupforyourself]

Talk of a summary conviction is nonsense I think. Clearly, if the husband is refusing to give the info you can't provide this as it is outside your control. All you can really do is write to the Tribunal and the other side advising them of this. Although the other side could potentially invite the Tribunal to draw implications that your husband has money and therefore you can afford the costs order.

 

Thanks steam powered . That's exactly one of my concerns if they make that assumption. They have my financial info and know if the costs are above a certain level I simply cannot pay. Would my husband be liable for any debt I may have if this all went horribly wrong? i.e any costs order above what I can afford

[steampowered]

No, your husband wouldn't be liable for a costs order against you.

[smokejumper]

All you can do is show via the joint bank account what your husband contributes to the household bills.

 

Whether your husband has money doesn't mean he will pay your debts and shouldn't have to.

 

You can show what your income/outgoings are and what you have left and therefore can pay.

 

That is the only information you have.

 

The more I read and experience from this ET system, the more I despair.

 

Employers don't seem to care about these proceedings, they are a minor inconvenience.

[standupforyourself]

Thanks - the employer will keep going until I am bankrupt as they have a great story then to scare anyone else who dares to stand up against a large billion dollar organisation.

The tribunal can see what we both contribute to the household in terms of joint account and what bills go out. Outside of that any money my husband may / may not have left over is his and nothing to do with me. They have a detailed breakdown of what I have left at the end of each month as well.

It is unbelievable how the respondent has managed to get everything they have asked for so far and they will probably ask for another hearing now to cross question me on husbands finances when it's clear don't have access to that info ( and never have had). It is infuriating.

[smokejumper]

All the dealings I've had with the ET are infuriating.

[SweetLorraine]

Hi again,

 

OK so you went on knowing in advance knowing they would apply for costs of around £100k if you were unsuccessful. Not the end of the world.

 

OK, you solicitor made a crucial mistake. There are cases in bailii where that is an issue which the ET might take into account.

 

If your case turned on such a point you could possibly claim the sum of the costs award (and some of your legal advisers fees?) from the solicitor's professional indemnity insurance scheme. Maybe?

 

Each claim/case is individual, and many circumstances have to be taken into account. Awards of cost were rare I'm told, but I know of several such cases in the last year or so.

 

The rough rule of thumb for an award seems to be around a third of the bill - but as I say, each case is different. There are cases in bailii where the respondent has stuck in a six figure bill, but the claimant has only (?) had to pay £10k of it - still a huge figure to the individual though. I'II dig out the case if you like? Might take a little time - but if it helps calm the nerves it might be worth looking at?

 

Crucially the Tribunal has to take into account your ability to pay any costs awarded.

 

The Tribunal itself may query the level of costs submitted by the respondent, and you have a right to challenge those costs as well. You could also try to argue that it is not appropriate to have submitted all the costs, perhaps the bill should only run from when you refused to settle? I guess what I am saying is that the respondents haven't got their hands on any lolly yet - and you may still have the option of an EAT as well. Costs awards are rarer still at an EAT - but not impossible.

 

You can see I'm not a legal eagle can't you - maybe bits of useful advice but some splashing around a bit as well. Given the sums involved you should really be talking to a professional. Where are your solicitors now? Can't they offer any advice on this issue?

[becky2585]

Whilst clearly your husband cannot be forced to disclose documents, there is a provision in the Civil Procedure Rules regarding third party disclosure which arguably the other side may try and use... I doubt they'd be successful unless the assessment of costs went through the county courts.

 

The problem I can foresee is that I cannot honestly see a Tribunal panel believing that a married couple a) keep their finances separate, or b) that a wife has no idea about her husbands finances.

 

To try and avoid the problem above, I would suggest that you do put together a schedule of your husbands earnings. It's part of your joint household income so I think you need to cooperate and provide figures, if not evidence, and take it from there.

 

I don't have experience of this particular point, so I'm purely second guessing what could happen, I would add.

 

If costs are awarded due to your solicitors negligence then you could have a potential claim against them as well - worth considering if you're facing a potentially hefty bill!

[standupforyourself]

Hi

Many thanks for the replies. Sweetlorraine - I had to stop using my solicitor and barrister as I simply couldn't afford the bill they were quoting to defend the costs claim. The actual level of costs was only disclosed by the respondents once there was a hearing date scheduled for the costs application. I have found a good site with examples of purely costs cases which has been interesting.

Beck2585 - I do understand what you are saying and that is exactly what I am worried about. However we have had separate finances for as long as we have been together and a joint account set up that we both contribute an equal amount to each month. Our bank statements can prove this .I just can't see the tribunal believing this and I have submitted what little I do know of his finances / assets.

I can't second guess what they might award but either way it would be nice to be over and done with so I know what my financial future is!

[SweetLorraine]

The Tribunal is required to take your ability to pay into account. This was a requirement/'constraint' that was placed on them some time ago.

 

If they cannot view your husband's earnings, they may simply conclude that they cannot make a reasonable assessment of your ability to pay, ergo they are 'unshackled' from that requirement. The Tribunal has wide discretion on what they then consider a reasonable figure (which cuts both ways of course). EATs can be reluctant to overturn that decision.

 

The Tribunal can decide not to award costs of course. The respondents can appeal that decision - and likewise EATs will be reluctant to overturn the original decision.

 

In a way, it is spin the bottle time! It could stop, pointing in your favour of course. If it does go against you though don't despair, you still have the appeals process and possibly pursuing the solicitor.

.

[standupforyourself]

A colleague has suggested to send in more evidence as to how I am only financially linked to my husband via the joint account. That is visible on a credit check report so it should be black and white proof that I have no other financial associations with him. Surely that must hold some weight and prove what i am saying with the ET?

Even under the new rules a tribunal "may" take the paying parties ability to pay into account but if they don't they have to explain why not. In my case this non disclosure of husbands finances could be that reason.

They have full visibility of everything I earn , outgoings and what i have left each month. They can see what we both contribute to the joint account each month and the bills etc that we both pay from that account. I guess with a court it is the level of relevance that is important so knowing what his salary is and what he has left each month would not be relevant to making an order ?they can see I pay 50 percent to the household bills and what I have left each month so wouldn't that be enough.....

[steampowered]

Wow - 100k of costs? What kind of claim was this and how long was the trial? How much were you trying to claim?

 

At a minimum you'd need to explain everything you have told us about you and your husband's finances to the Tribunal. You also need to be challenging their schedule of costs rather than just focussing on the 'ability to pay' aspect.

 

It is difficult for a non-legal person to challenge a schedule of costs and we don't have the full background. When we are talking about 100k advice from colleagues and advice on the internet from people who don't know the background of your case isn't enough. I think you need to dig deep to try and get a barrister or costs lawyer to represent you at the hearing.

[smokejumper]

More money for more lawyer's.

 

ET starting to look a bit like divorce , only people benefiting are the lawyers.

Edited April 13, 2014 by citizenB
removing derogatory comment

[becky2585]

More money for more lawyer's.

 

ET starting to look a bit like divorce , only people benefiting are the liars, sorry meant lawyers.

 

Please don't forget there are lawyers who voluntarily give up their time on here to help others. Your incessant lawyer bashing isn't particularly constructive, or helpful.

[standupforyourself]

Thanks everyone for the comments and suggestions.

I had a direct access barrister at the costs hearing. The respondent was claiming all their costs on the basis I brought a hopeless case and was vexatious however, the judgement has found that I had a genuine case and it wasn't brought vexatiously. I think any costs awarded will be for non compliance of the order and for refusing an offer to settle ( I countered with another amount) so it won't be for the full 100k plus. It's amazing that their costs were so high - it was a 4,day hearing plus 1 day for the costs. They have had 3 -4 people working on this at any one time and the amount of correspondence from them has been huge. My ex solicitor was swamped. Compared to other cases where costs are that high it has been for hearings that have lasted 4 weeks plus! Crazy.... But I am stuck here now and have to deal with it. This has been going on now for nearly 2.5 years and I am hoping we are at the end of it all.

This forum has been very helpful and it's been a relief to know there are people out there who are kind enough to respond

[SweetLorraine]

Hi again standupforyourself,

 

it might be worthwhile emailing the Tribunal (fao: the judge who headed the hearing panel or signed the order) briefly laying the issue with your husband's earnings (apologetic in tone?). At least there will then be a written record of you trying to address/resolve the issue ahead of the costs hearing.

 

At the costs hearing (I imagine) you may be asked 'so what do you have to say about costs amount?'. steampowered does make a good point about challenging the costs, you probably need a legal eye cast over that issue. It could 'pay' dividends particularly if the legal advisor can truncate the level of costs to a certain point later on in the proceedings. So do look at that costs schedule, how transparent is it? You can seek clarification from the respondents (and it doesn't help them if they don't reply).

 

If the senior solicitor has been doing the photocopying is it reasonable have that activity charged out at £250 an hour? (No). Have the respondents submitted a reasonable amount of hours preparing for the hearing? If they have over-egged it the Tribunal may have a view on that issue as well. Have they charged a reasonable hourly rate - hourly rates are capped at a certain level.

 

You mentioned you came across a good website that dealt with costs. Could you post the link on here? it might help other members in the future.

[steampowered]

Right. So there isn't actually any order for costs yet - just a hearing to decide whether you should pay them? Even if they do get costs 120k is extremely high for a 4-day hearing.

 

I would certainly be trying to get a barrister or solicitor along to the next hearing. There will certainly be issues with the costs schedule that only someone with experience of the legal profession would pick up on, it is very difficult for a non-legal person to judge things like the appropriate seniority of lawyer to do particular work etc.