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‘I reserve the right…’

Lawyers often claim on behalf of their clients to be ‘reserving the right’ to do something.

The Respondent reserves its right to amend its ET3 on provision of further particulars…

The Claimant reserves the right to apply for a postponement if…

Nine times out of 10, the expression is meaningless. If you have the right to do something, you don’t need to ‘reserve’ it – you’ve got it anyway. So in the second example: you can always apply to the tribunal for a postponement – or ask it to do anything else it has power to do. (Come to that, you can ask it to do things it doesn’t have power to do, if you like.)

On the other hand, if you need the tribunal’s permission to do something, then you can’t get around that by saying that you ‘reserve the right’ to do it. You might as well say ‘abracadabra’ for all the difference it makes. You’re still going to have to ask the tribunal’s permission to amend.

The only situation in which this phrase can have a useful meaning is if you’re doing or saying something now that could give the impression that you are giving up the right to do something you might otherwise want to do later, and you want to make sure you don’t give that impression.  So for example, you might say in written submissions:

The Claimant accepts that the tribunal is bound by the decision of the Employment Appeal Tribunal in Gamgee v Shire Agricultural Holdings Ltd to to find that he lacked sufficient continuity of service to complain of ordinary unfair dismissal. The Claimant reserves the right to argue on appeal that Gamgee was wrongly decided.

This is meaningful. You’re entitled to argue that Gamgee  was wrongly decided – no-one can stop you. But it’s pretty pointless telling an employment tribunal that the EAT has got it wrong: the ET is bound by the EAT’s decision anyway. So it’s sensible not to trouble that ET with an argument which, at that level, is bound to fail. At the same time, if it comes to an appeal, you don’t want to be slapped down with ‘this wasn’t argued below.’ So by ‘reserving the right,’ you flag it as an issue without wasting everyone’s time with an argument that can’t succeed at first instance.

3 comments

  1. Daniel Barnett

    Indeed – a pet hate of mine when I see this in pleadings.

    Similar to ‘the Respondent strongly denies paragraph 4 of the Claim Form and puts the Claimant to strict proof of its contents.’. It doesn’t become a better denial because it’s expressed to be ‘strong’. All that’s needed is ‘the Respondent denies paragraph 4 of the Claim Form’.

    And if you believe it does make a difference, why not go the whole hog and put: ‘the Respondent really, really denies paragraph 4 of the Claim Form and submits the Claimant’s pants are on fire’.

    • Douglas

      In my case the respondents rep chose “vehemently denies” several times.
      A total shock when unrepresented & expecting the truth and you realise they’re lying.

  2. Douglas

    As an unrepresented I do not know the rules, I do not understand the robust case management by the employment judge eliminating important parts of my claims. In a court with unrealistically strict time-limits, struggling with significant mental illness, the respondents representatives denying and arguing of all of the chosen fact and without the assistance of the tribunal panel, . I am severely disadvantaged, will make many mistakes and not be allowed or able to present all of my evidence. I therefore reserve the right not to be estopped or res-judicated

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