Tagged: costs

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Getting the most out of your adviser

Most of this blog (and the book it supports) is written for people who are either representing a client in the employment tribunal, or are representing themselves. The underlying assumption is that if you are a claimant in an employment tribunal case who has an adviser, you can leave running the case to them.

That assumption is not completely right of course. If you are getting free advice, the time your adviser can spend on your case will be limited by the other demands on her time – and demand for free legal advice vastly outstrips supply, so the chances are she’s rushed off her feet. If she’s representing you by way of Legal Help, she will be operating under grossly unrealistic time limits imposed by the Legal Services Commission. And if you’re paying for legal advice, the time your lawyer can spend on your case will be limited by your budget: lawyers charge by the hour.

Any which way, there will be a limit, and probably quite a tight one. Case preparation consumes time at a frightening rate, so if you do everything in your power to limit the time your adviser has to spend on non-essential tasks, or tasks that she is no better qualified than you to do, you will maximise the time she has available for the more difficult stuff.

Present the papers in the most helpful way you can

Read the advice on coping with a large pile of papers. Taking letters out of envelopes, removing staples and paperclips, sorting papers into chronological order, weeding out duplicates, photocopying and hole-punching are all easy tasks – but time-consuming. You’d think it mad to pay anyone £100 or more an hour to sort your laundry, but it is surprising how many people are prepared to pay their lawyers to put papers into chronological order.

Answer questions succinctly

Be as focused as possible in the information you give to your adviser, and the way you answer her questions. In ordinary conversation, a question is very often not so much a request for specific information as a polite cue whose purpose is to make space for you to talk for a bit. If it was your habit to behave in social situations like the ideal witness – just giving a succinct factual answer focused precisely on the question you were asked, and then stopping to wait for the next question – you’d soon stop getting invitations. But your lawyer’s questions are best treated in precisely that way.

Don’t ask your adviser for information you can easily find elsewhere

There are many sources of free information for people going through employment tribunal claims, so try to get the answers to your basic questions that way before paying your lawyer to tell you. A good start is to make full use of this blog – don’t just read the most recent posts: explore the index, have a look at the resources page and the glossary, visit the websites that we link to. You could also ask your local library to get a copy of the book (ask for Tamara Lewis’s Employment Law: an adviser’s handbook too, while you’re about it).

Do some of the work yourself

If you are trying to keep your legal costs down, don’t be shy to ask ‘Is that something I could do myself?’ or ‘Will it save time if I do a first draft?’ when your lawyer tells you that a particular piece of work needs doing. You will certainly save quite a lot of your adviser’s time if you write a good first draft of your witness statement.

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Legal costs insurance

If you lose your job or get into a dispute with your employer, checking the small print of your household or car insurance may not be among the first things you think of doing. It probably should be, because you may well have insurance that would cover the cost of legal advice, but you could lose the benefit if you don’t get in touch with your insurer promptly.

The Employment Lawyers Association and the authors have kindly given us permission to reproduce this useful article on legal costs insurance by Camilla Palmer and Joanna Wade, published in the ELA Briefing (June 2008).

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Costs threats

Respondents’ lawyers often say that they will apply for costs in the employment tribunal if the claim is not withdrawn or settled. Sometimes they say that they will apply for ‘up to £10,000,’ and sometimes they threaten even larger sums. If you are not a lawyer and don’t have access to specialist advice, it can be hard to know how seriously to take these threats.

The first thing to note is that the usual rule in the employment tribunals is that each side pays its own costs, win or lose. You don’t have to pay the other side’s costs just because you have lost the case. In general, the employment tribunal only awards costs if the conduct of one side has been “vexatious, abusive, disruptive or otherwise unreasonable” or if the claim was “misconceived.”

The “vexatious, abusive, disruptive or otherwise unreasonable” part of this is relatively straightforward. It basically means that you have to fight the case in a reasonably civilised and co-operative manner. If you try to ambush the respondent with new factual allegations or documents they haven’t seen before at the last minute, or send them pages and pages of detailed questions on irrelevant matters, or repeatedly fail to comply with the procedural timetable set by the tribunal, or fail to turn up to the hearing without a good excuse, or telephone their witnesses and shout at them (and so on), then you may well face a costs application on this basis.

“Misconceived” is much trickier. Your claim is misconceived if it has ‘no reasonable prospect of success.’ Some claims are so weak that anyone ought to be able to tell at a hundred paces that they are hopeless. If you are an airline pilot who arrived for work drunk, and you were dismissed after a disciplinary hearing and an appeal, at both of which you were represented by your trade union, then your unfair dismissal claim is hopeless, and you shouldn’t need a lawyer to tell you so.

But often when the respondent’s lawyers tell you that your claim is misconceived, they will be relying on some legal technicality: you are a ‘worker’ but not an ’employee,’ so you don’t have a right not to be unfairly dismissed; you were a student, and not a ‘worker,’ so your discrimination claim must be brought if at all in the county court not the employment tribunal; your claim was presented too late, or too early, or had not been preceded by a valid grievance. Or they will simply be saying that the claim looks weak on the basis of the way it has been put in your ET1 and/or witness statements.

These things are much harder to judge if you are not a lawyer. If your claim is listed for several days or even some weeks, and the respondent’s lawyers are telling you that it is misconceived and threatening to apply for £10,000 or £50,000 or even £100,000 in costs, you are likely to feel thoroughly intimidated. If you can’t afford your own legal advice, the chances are you simply do not have this kind of money. A costs order on this scale might mean losing your home, or bankruptcy.

One tactic you can try in these circumstances is to treat the tribunal itself as a source of legal advice. Write a letter explaining that the respondent is threatening you with costs, and ask for a pre-hearing review to consider the question whether your claim has any reasonable prospect of success.

Here is a sample letter showing how you might put an application like this.

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New documents in the course of the hearing

Suppose that in the course of the hearing your client realises that an important answer given by one of the respondent’s witnesses can be proved wrong by a document that she has at home, but that she has not previously shown you or mentioned. She goes home and looks out the document and brings it the next day. When you look at it, you think it is extremely helpful to her case.

What do you do? Can you use this document?

The first thing to note is that if the document is relevant, it ought to have been disclosed to the other side before the hearing began and included in the bundle. It has to be disclosed now, so give a copy to the other side’s representative, with apologies for not having disclosed it earlier, at the first opportunity. Don’t make excuses at this point, but find out from your client why the document was overlooked previously so that you can be ready with your explanation for late disclosure in case the tribunal asks you.

The next thing is to decide how to deal with the new document in evidence. If the witness in question is still giving evidence, you should just be able to show him a copy of the document and ask him questions about it.

If the witness in question has finished his evidence, you may wish to have him recalled so that you can ask some further questions. Tread carefully at this point, though, and be ready for a tussle with the tribunal: the Chairman will not be keen to bring witnesses back after their evidence has apparently finished. You are on the moral low ground to the extent that the document should have been disclosed earlier. If there is any risk that recalling the witness will extend the hearing so that it needs an additional day, think hard about how important it is to be able to ask him about this document. Can another of the respondent’s witnesses sensibly be asked to confirm that, in light of this document, his evidence must have been mistaken? If the hearing is extended because you insist on recalling a witness to deal with a document that your side should really have disclosed earlier, you are likely to face a costs application.

Similar considerations apply if your client produces a document that she says proves she is right on an issue she was given a hard time about in cross-examination. You may want to recall her after the end of her evidence to explain the document, but avoid this if you can: you may be able to make your point about the document just as well, if the respondent’s evidence is yet to come, by cross-examining one of their witnesses about it.

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Being asked out by the respondent

Respondents can display all sorts of undesirable behaviour during a case. One of the more difficult to handle is an attempt to make a romantic approach to a representative. This is behaviour usually, although not always, restricted to litigants in person. It is also usually, but not always a male litigant addressing a female representative.

This will always be inappropriate and, often, upsetting for the representative. The sensible course is to tell the respondent, preferably in writing, that the behaviour is inappropriate and must cease. It should also be pointed out that harassment of a representative is unreasonable conduct of the litigation and may lead to costs against the respondent, or even their response being struck out, if it is brought to the attention of the tribunal. The tribunal is particularly likely to take firm action is the behaviour continues after an approach was firmly rebuffed.

If a pass is made by a solicitor or barrister you should consider reporting them to their professional body.