Intimidation tactics

[spacechild]

Any help here would be great...
I'm involved in an ongoing tribunal case and an offer has been made.

Due to the intimidating nature of a letter I have received from the respondent's solicitor regarding this offer, taking it would go against my principles but I have been put on notice that if I don't accept it they will apply for the recovery of their costs to be made against me. The letter includes a deadline for my response.

Is it possible to withdraw completely, without taking the settlement figure and without making a COT3 agreement, or must some sort of agreement be reached via ACAS at this point? And if I were to withdraw without a COT3, can they still make the application for costs to be made against me at any point in the future?

I don't know a lot about COT3 agreements, but am I right in thinking it's a type of gagging order?


*

[ULA]

Firstly, if the other party have made an offer which they believe to be reasonable, then they will often say that if you do not accept, they will make a costs application to the tribunal. Costs awards are not standard in an Employment Tribunal but if they are made, they are done so on the basis of one party behaving unreasonably in the bringing of or the conduct of a claim. A possible example of unreasonable conduct by a party is the rejection of a reasonable offer to settle a claim prior to a Tribunal hearing.

You can withdraw your claim at any point in the process.

A COT3 in this circumstance would be an agreement confirming the terms of settlement of your potential claim which has been agreed between you and your employer with the assistance of a conciliation officer employed by ACAS. This agreement does not need to be recorded on a COT3 form. It can be agreed between you and your employer in writing or orally with the help of a conciliation officer and it will still be valid and binding.

If you decide to reach an agreement with your employer and this has been communicated to the conciliation officer the agreement cannot be changed so make sure you are happy with the terms reached before you communicate them to the conciliation officer. If a COT3 is drafted check the final version and ensure you are happy with all the terms.

When the COT3 has been agreed, the tribunal will no longer be able to hear your claim and your conciliation officer will notify the tribunal that the claim has been settled. There is no requirement for you to obtain independent legal advice for the COT3 to be binding however your conciliation officer should explain the terms of the COT3 and their effect.

Hope that helps.
*

[spacechild]

Thank you ULA.


So just to be clear, if I decide to walk away and withdraw my claim but don't want to enter into a COT3 agreement, can they still apply for me to pay their costs and win that on the grounds that I was being unreasonable for not withdrawing earlier..?

I actually attempted to settle with them via ACAS towards the end of last year, but they said that they wouldn't be settling and would take it all the way to a tribunal. I personally thought that would have been the more reasonable time to settle, given that they couldn't find any of the documents I had requested.

Is it the case that it would be viewed as me being unreasonable to decide that I would rather not take money over having my case heard in the public domain..?

[ULA]

Given that is sounds like they are using the costs angle to try and get a settlement based on their offer then if you withdraw at this stage they may not try to apply for costs. However, to be sure if you decide to withdraw then I would suggest that get the respondent to agree in writing that they will not pursue a costs order.

Settlement can happen at any time even at the point when you are about to enter the tribunal hearing, even if previous attempts have failed.

When you were trying to settle via early conciliation with ACAS where figures spoken about or was it just a general statement that you would be prepared to settle? If a settlement figure was discussed what were the reasons for the respondent not considering it at the time?*

The potential issue is that if the settlement figure being offered now were to be seen by the tribunal as a fair and reasonable offer given the nature of your claim and in the "ball-park" of any award that you may have received if you had won your case then i could be considered as unreasonable conduct for you not to accept it.*

*

[D_Pappa]

It would be worth carefully checking the wording of any proposed settlement you have been offered. If it is marked "without prejudice" (which I am sure it does in some capacity), then great; save for the most exceptional of circumstances, that conversation is not to be disclosed and the tribunal will not hear about it. Tribunals are not privy to what happened in conciliation between you, the respondent and ACAS.

If it any correspondence is marked "without prejudice, save as to costs" or in similar language, it may be disclosed to the tribunal if/when requesting a costs order, which will naturally follow after proceedings. If this doesn't apply, great - it's going to be tough for the respondent to talk about your failed negotiations pre-tribunal at a later stage, or refer to your 'unreasonable conduct'.

You can walk away and not sign a COT3 agreement, electing to either drop the case or proceed to tribunal. If you withdraw the case, then it is possible for the respondent to seek a costs order, but save for exceptional circumstances (and very unreasonable conduct by you, and significant costs incurred by them due to the complexity of your claim), this is unlikely to happen.

That said, if you are willing to walk away and withdraw the claim, why not settle as part of COT3 and get something for it? If you don't like the wording of the COT3, you can propose changes. Or just steam onto tribunal and win, if your case has sufficient merit. Whatever you do, keep your principles in check; be pragmatic, make a measured decision and you'll likely be on the right lines.*

Just bear in mind what ULA said about reasonable conduct - and remember, this goes both ways. Worth reading up on, just to keep you on the straight and narrow. In a nutshell though, no. Having your day at tribunal is not unreasonable and nobody can strong-arm you into taking a rubbish offer. If the respondent acts unreasonably during the tribunal process, you can warn them in writing that you will seek a costs order and indeed submit one, if genuinely needed.*

Ever seen those police TV shows? Where a copper asks a random member of the public their name what they're doing, etc., and they say "do I have to tell you, legally?" and the copper is saying "yeah mate, you do. Or I'll arrest you!". Well, that's scary if you don't know the law, isn't it? You'd cave in immediately, because you'd take the police officer on his word and assume he knows the law better than you, and you don't want to be arrested. But if you were savvy, you'd know you are under no obligation to answer the question and that the threat was empty. Sound familiar?

The other side will bang on about costs all day long, as they are trying to leverage you. They will point out how you are unlikely you recover any legal costs you incur, how they may try to hammer you for their legal costs, how any settlement offer will reduce if you go to tribunal (because they are incurring costs), etc. They will act act is they've got the crystal ball as to how things will go at tribunal, and this crystal ball always seems to involve them winning.

All you can do is consult you legal advisor (if you have one), or even just yourself, and go... "well, how strong is my case" (and be objective about that) and "do I like that offer?". If you think yes, my case is pretty strong, I've got a good chance, and the respondent's offer is terrible, AND you think it's worth rolling the dice at tribunal, DO IT. And be robust about it. That is negotiation.*
*