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I am going through an ET claim. As part of the process I have to list the amount of costs I have incurred. I am told I can list up to around 120 pounds per hour for the work done.

 

Most of the advice work has been done by a law student who is a friend of my sister. She has probably done about 20 hours work so far and says she is OK about doing it for next to nothing.

 

However if I win my case and get costs awarded I would like to reward her for her work. Is it OK if I submit a claim for say 50 hours work at say 100 pounds per hour? Are those figures reasonable - it is legal advice after all?

 

I can't find any advice that says I can't do this - but I thought I would ask posters their advice on here. Can the other side challenge these costs? Would it get me in trouble with the tribunal?

 

Thinking about it - if I can do this will the other side be doing the same thing with their costs calculations? If I lose how could I challenge an 'inflated' set of figures?

 

Thanks

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The starting position is that costs are not awarded in ET. The rule is that '(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—

(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b)any claim or response had no reasonable prospect of success.' You need to show one of those two grounds before you can get any costs.

 

You cannot claim £120 an hour. In Employment Tribunal, the rate for litigants in person is fixed at £33 an hour. Refer to http://www.legislation.gov.uk/uksi/2013/1237/schedule/1/made, section 79.

 

Claiming costs as a litigant in person would be treated a preparation time order under section 75 (2). This allow you to recover costs for time spent by you personally and for 'employees' and 'advisers'. The word 'advisers' is not defined. I'm not sure whether a law student who is not legally qualified would count as an 'adviser'.

 

50 hours might not be excessive depending on the nature of the case, but there should be a proper description of what was done during that time. Try finding some examples of a costs schedule online. If a figure looks unreasonably high for the nature of the case, it will be cut down.

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The Civil Procedure Rules used for court are different to the ET rules used for the Employment Tribunal. The difference is a little bit strange. I can't explain it, it is just what the rules say.

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ET's were always intended to operate without lawyers [humph] so I suppose that might account for the difference in treatment?

 

ETs were always intended to provide access to justice for the individual when faced with misdemeanours by an employer with significant resources at their disposal - hence each side should bear their own costs. If one side chooses to engage expensive legal advice then they foot the bill, and this cannot be reclaimed unless a party continues with a case which has no merit or reasonable chance of success, or where a party acts vexatiously. Hence, costs are very rarely awarded.

 

Sadly the government has somewhat skewed the system back in favour of the employer by putting practical and financial barriers in place to deter claimants. Whilst paying for legal advice is not compulsory for a claimant, the fee system amounts to much the same thing!

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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Thanks you for the advice, I notice from the link steampowered supplied that section 78 (2) also refers to the 33 pound per hour limit. It is good to know I could claim something for the help I have been given. Ta for that.

 

Yes sidewinder I do feel things are looking a bit lopsided. I hadn't thought of costs until recently, I thought each side had to meet their own costs. Then the other side verbally warned me (in an 'informal' chat with no witnesses on my side, of course) that they will 'max' out their figures on their hourly rate and hours claimed (if I go ahead to a hearing) and hit me with a large legal cost.

 

How can I stop them doing this? Are they held to a 33 pound limit as well? They said they can submit any figure they want, the tribunal won't know any different. Who checks their figures? It would be helpful to know. Thanks.

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No costs will be awarded unless they win AND they can convince the judge you behaved unreasonably or made a claim with no reasonable prospect of success.

 

The concept of 'loser pays the winner's costs' does not apply in ET. Costs are awarded in only a very small minority of cases. However that does not stop people who do not understand the system from making unrealistic threats. People know that 'costs' are sometimes threatened in court cases so they often try to apply that to ET cases without any understanding of what the rules actually are.

 

The answer to your questions about rates etc. can be found the legislation linked in my post. If we are talking about a costs order (for actual costs incurred such as legal fees), the amount can be higher. For a preparation time order, it is £33. You cannot have both types of orders in the same case.

 

The figures cannot be 'checked'. However, the principles of reasonableness and proportionality will be applied. Even in a situation where costs are awarded, if the Tribunal views them as excessive/unreasonable bearing in mind the complexity of the case and the length of the hearing, they would be struck down.

 

 

Its better to focus on the merits of your case rather than this stuff. Unless you behave unreasonably or your claim is legally hopeless, the risk of costs is very small.

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Thank you for a comprehensive answer again steampowered. Yes I may be getting distracted by the costs issue. My employer (public sector) has a small legal team and I know that they aren't that well remunerated. If they submit a hourly cost of 130 pounds per hour for someone only costing 25/30 pounds per hour will I be able to raise this issue with the tribunal if it all goes wonky for me at the hearing?

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Time spent by legally qualified in-house lawyers is in theory recoverable. The rate to be used is not clear and inconsistent approaches have been taken in different cases. Sometimes it has been linked to the actual cost to the employer of time spent; but in some cases it has been linked to the standard guideline hourly rates for solicitors of the relevant seniority (which are much more than 33 an hour).

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Time spent by legally qualified in-house lawyers is in theory recoverable. The rate to be used is not clear and inconsistent approaches have been taken in different cases. Sometimes it has been linked to the actual cost to the employer of time spent; but in some cases it has been linked to the standard guideline hourly rates for solicitors of the relevant seniority (which are much more than 33 an hour).

 

 

I seem to recall that there was a recent decision confirming guideline hourly rates could be claimed for in house counsel... Although I can't remember if it was an ET case or not!...

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Hello, thanks again for your advice. I've done some follow-up reading on costs - it all seems a bit unclear - but I assume it only becomes a 'live' issue if I lose my claim. But I want to do everything to avert any such threat (as per my employers 'warning' on costs).

 

If you would indulge me further I would like to ask a procedural question please?

 

I want to complain to the hearing about the costs pressure my employers are using - as a further example of their bad behaviour. My (law student) helper has had a brief read around the subject and tells me that she thinks (but she is not sure) that a claimant cannot raise the issue of costs during the hearing, it looks as though it is usually dealt with (if necessary) only after the hearing has finished and when a judgement is made (at the end of the hearing).

 

Could someone please tell me if it is correct for us to assume that (procedurally) it is important that the tribunal panel overseeing the hearing should not know, during or before the hearing, that a 'costs warning' has been issued by the employer, especially before the panel reach their decision on the claim? i.e. would it be seen as influencing their decision and therefore annoy the panel?

 

I hope that reads OK, we are both confused on this point. It would be good to know what I can and cannot say in the hearing - I don't want to cheese off the panel by making any unnecessary mistakes.

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I caution you against complaining about this to the Tribunal. Threatening to try and claim costs is arguably legitimate (and indeed they are expected to warn you if they plan to do so). You will have to make your own judgment whether or not your case falls within the categories I described.

 

As a general rule the Tribunal does not care about 'bad behaviour'. You can give as many examples as you like but it doesn't really matter unless it actually forms part of the legal case you are making. The Tribunal is there to adjudicate on whether you are entitled to be paid the amounts you are claiming under the law, not on whether the employer is a nice person. There is no law against making silly threats and there is no law against being a git - you cannot win a ET claim by convincing the Tribunal about the moral character (or otherwise) of the employer.

 

You do not have time to distract the Tribunal with this kind of stuff. Especially when the threats were made in informal verbal chats (which can't be proven anyway). Your time in the Tribunal is very limited, which means you need to focus all of your energy and all the time you have in front of the Tribunal on trying to convince them of your case.

 

Your helper is correct that any decision on costs will be made after the merits of the case have been adjudicated. Discussion around costs/settlement etc. is covered by 'without prejudice' privilege which means you cannot use it as part of the substantive case. The legal system has a very deliberate policy of not looking at anything which forms part of the general matrix of settlement discussions (in order to encourage people to have frank discussions about settlement, in order to increase the number of cases which are settled without using court resources).

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I seem to recall that there was a recent decision confirming guideline hourly rates could be claimed for in house counsel... Although I can't remember if it was an ET case or not!...

I think it is settled law that costs can be claimed for in-house counsel, but as far as I'm aware the issue of what rate to apply is still pretty unclear. Though there have certainly been cases where guideline rates were recovered.

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Thank you very much again steampowered. 'there is now law against being a git' helped raise a smile - I will try to remember that.

 

Funnily enough I was sent an email this morning with a pdf attachment of a formal letter (which is in the post?) informing me that my employers will ask for costs if I do not stop my claim. I've also had a read about 'without prejudice' following your advice above. From what I understand it has to be mentioned in the document it refers to. I have had several intense repeat reads of the pdf and the email and they don't mention the 'WP' words anywhere. Have they slipped up? That being the case can I mention the letter in my hearing?

 

Although I may only have a little time in the hearing I would wish to briefly raise the costs issue. Whether the panel pay any attention is another matter.

 

Procedurally am I allowed to bring up this issue during the hearing? Or am I not allowed?

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Without prejudice privilege applies to anything which forms part of a settlement discussion - you don't necessarily need to have the words WP written on the document.

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Thanks again steampowered. I am new to all this but I'm beginning to see it is a bit loaded towards my employer.

 

I tried to resolve this through their internal grievance process. I have made a number of overtures since then to resolve things before going to an ET hearing. My employer has ignored nearly all those efforts. I did receive one email reply where they suggested a small figure to put things to bed, however when I responded positively to this they never came back to me.

 

Quote from earlier - "The legal system has a very deliberate policy of not looking at anything which forms part of the general matrix of settlement discussions"

 

I am surprised that I cannot mention this behaviour at the hearing. I have tried to keep costs to a minimum and resolve the issue, my employer ignored those efforts and is still running up the costs. From what you are saying, I cannot point out this behaviour to the panel, even though I have tried to sort out a settlement and my employer ignored those efforts... and potentially I can get stuck with the costs that my employer has deliberately run up?

 

Sorry if I seem to be going around in circles - I just need clarity - am I allowed to discuss costs at all during the hearing itself?

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Hi - I understand your confusion. It is common among litigants in person like yourself.

 

The basic principle is that your legal claim will be based on what happened on a particular date. This will be the date of your dismissal (or the date of the other event(s) you are complaining about). You will need to identify a specific breach of legislation (such as unfair dismissal) or specific breach of your employment contract which gives you a legal right to claim against your employer.

 

Anything which happened after that event is seen as irrelevant. For example, the way that the employer conducts itself in the process of ET proceedings does not have a logical bearing on whether or not you were unfairly dismissed in the past.

 

You need to understand that the Tribunal is a body which has limited legal authority. It does not have a general remit to 'do justice' or to impose standards of behaviour. It only has the powers specifically granted to it by parliament, which are essentially the power to enforce employment legislation and enforce contract law. You need to clearly understand that the Tribunal will not punish the employer simply for being a bad person because it does not have any legal basis on which to do this - there is no law against being nasty.

 

Going into your case specifically, something like failure to follow internal grievance processes might be relevant if this relates to the claim you are making (for example, if you are alleging that you were unfairly dismissed partly due to the employer's failure to follow a fair procedure). However in most situations it won't be relevant.

 

On costs, both the courts and the Tribunal have a very clear system in place. They will first decide on the issue of legal liability. The court will not look at any costs issues at this stage because (1) it is not relevant to the underlying legal claim, (2) it wastes time - what point is there evaluating the Defendant's behaviour if he loses on liability anyway? and (3) the courts want to encourage people to have frank and honest settlement discussions without having to be scared about being criticised for what they say in the main case.

 

Only after a decision has been made on liability, will they look at the issue of costs. This is when you can bring in the stuff about the employer's bad behaviour. How people have behaved during the proceedings (and whether or not costs are excessive) will be considered only at the second stage. If the employer is running up unnecessary costs (which would be odd given that - unlike the court system - costs are only awarded in a very small percentage of Tribunal cases), this only comes in at the second stage.

 

I strongly advise you against focussing on the behaviour stuff. You really don't have any time to waste by talking about this stuff. You've got to focus on the actual legal merits of this claim. Several times I have seen LiPs focus on trying to prove the Defendant is a 'bad person', only to fail to properly prove the acutal legal claim they are making. The structure of your argument needs to be governed by the law, not by your emotion and not by what you think the law should be - identify what legal claim you are making, identify the elements of that claim, and then focus on proving that each of those elements are satisfied.

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Hi - I understand your confusion. It is common among litigants in person like yourself.

 

The basic principle is that your legal claim will be based on what happened on a particular date. This will be the date of your dismissal (or the date of the other event(s) you are complaining about). You will need to identify a specific breach of legislation (such as unfair dismissal) or specific breach of your employment contract which gives you a legal right to claim against your employer.

 

Anything which happened after that event is seen as irrelevant. For example, the way that the employer conducts itself in the process of ET proceedings does not have a logical bearing on whether or not you were unfairly dismissed in the past.

 

You need to understand that the Tribunal is a body which has limited legal authority. It does not have a general remit to 'do justice' or to impose standards of behaviour. It only has the powers specifically granted to it by parliament, which are essentially the power to enforce employment legislation and enforce contract law. You need to clearly understand that the Tribunal will not punish the employer simply for being a bad person because it does not have any legal basis on which to do this - there is no law against being nasty.

 

Going into your case specifically, something like failure to follow internal grievance processes might be relevant if this relates to the claim you are making (for example, if you are alleging that you were unfairly dismissed partly due to the employer's failure to follow a fair procedure). However in most situations it won't be relevant.

 

On costs, both the courts and the Tribunal have a very clear system in place. They will first decide on the issue of legal liability. The court will not look at any costs issues at this stage because (1) it is not relevant to the underlying legal claim, (2) it wastes time - what point is there evaluating the Defendant's behaviour if he loses on liability anyway? and (3) the courts want to encourage people to have frank and honest settlement discussions without having to be scared about being criticised for what they say in the main case.

 

Only after a decision has been made on liability, will they look at the issue of costs. This is when you can bring in the stuff about the employer's bad behaviour. How people have behaved during the proceedings (and whether or not costs are excessive) will be considered only at the second stage. If the employer is running up unnecessary costs (which would be odd given that - unlike the court system - costs are only awarded in a very small percentage of Tribunal cases), this only comes in at the second stage.

 

I strongly advise you against focussing on the behaviour stuff. You really don't have any time to waste by talking about this stuff. You've got to focus on the actual legal merits of this claim. Several times I have seen LiPs focus on trying to prove the Defendant is a 'bad person', only to fail to properly prove the acutal legal claim they are making. The structure of your argument needs to be governed by the law, not by your emotion and not by what you think the law should be - identify what legal claim you are making, identify the elements of that claim, and then focus on proving that each of those elements are satisfied.

 

This. Some correspondence will be "without prejudice save as to costs", at which point it would be admissible for the purpose of determining costs only.

 

The only circumstances where an employer is "punished" for unreasonable conduct is if the dismissal itself had "aggravating features" - for which a fine of up to £5,000 can be ordered by the ET (which goes to the secretary of state) or for claiming "aggravated damages" for particularly serious elements of a discrimination claim, either at the point of the discrimination or in subsequent proceedings. Any other form of unreasonable behaviour would have to be dealt with by way of a costs order, which are very rare.

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Thank you steampowered and becky2585 for the time you have taken over my query. It is most helpful to me. I shall bear it all in mind, it will help me at my hearing. Thank you.

 

I have been reading about some other claimants who have been caught by costs. In some cases the employer's side seem to have used really underhand tactics. I suppose employers who are regularly taken to a tribunal get to know all the tricks and what they can get away with?

 

I shall concentrate on my legal points.

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The most common situations in which people get stung with costs are when they bring claims which are hopeless, or they try to claim an extremely high amount and refuse to accept a reasonable settlement offer. As long as there is a clear legal basis for bringing the claim (best to get someone independent to verify this if unsure), the risk of costs being awarded in ET is generally quite low.

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