Delay Tactics

[gban]

Looking for advice on what you would do under these circumstances. Witness statements were supposed to be exchanged at the end of May. The respondents solicitor asked for a five-month extension until the end of September because one of the respondents was too unwell to attend work. I am aware that the respondent was back in work within two weeks of them making the request to extend, however, i let it go as the hearing isn't until May next year.

Last week I sent them a reminder email telling them that the extended deadline is four weeks away and for them to advise me of a time and date they will be ready to exchange. Yesterday i got an email from their solicitors' admin lady asking for another month's extension because the solicitors' daughter is really unwell and she is staying with her in hospital. I of course agreed to this and wished her all the best etc. It has been brought to my attention that it is a lie and the solicitor is actually on holiday and is back at work on Monday.

Should i write to the tribunal asking for an unless order and make them aware of the lie ? I have been shocked at the conduct of this solicitor all the way through this case, its been unethical at best. What would you do ?

[atticus]

You have agreed something. If a further extension is requested tell them enough is enough and they need to apply to the Tribunal if they need yet more time.

Are you ready with your statement(s)?

[gban]

Yes we have been ready since March.

[gban]

Atticus, I agreed to the extension because of what she told me. How could I possibly refuse ?

[atticus]

My earlier answer did not query that. It was written on the basis that you are where you are now, and made a suggestion for the future, should you need it.

[gban]

Why would they keep delaying ? I know it's a complete mess for them and there is nothing they can put in their statements because the evidence I have put in the bundle completely contradicts everything on the ET3.

[atticus]

Then do not agree any further extensions. See post # 2

[gban]

Good answer. Completely shocked at the extent these people have gone to avoid facing up to this !! Thanks, Atticus.

[atticus]

Oh, and make a note of the reasons given when extensions have been requested, and what you subsequently found out about those reasons.

[gban]

It's all noted Atticus. Is there nothing I need to be wary of ? You see, if this was me and I was in the mess they have got themselves in, I would just want it off my back and get it settled. We have had offers but they, in my opinion, are nowhere near to what the case is worth, more so now for them, to get themselves out of it. I don't understand the point of delaying the inevitable. Is there one?

[gban]

Atticus, still no witness statements from the respondents on this case. I reminded them last Monday and about an hour later got another offer of settlement that we refused. I am now being ignored. I am thinking of applying for an unless order if I have not heard anything by Monday. Is this what you would do under the circumstances ? Statements are now six months late after two extensions being granted.

[ULA]

To be honest WS exchange a year before the hearing date is quite a way in advance and I am not unsurprised that the respondent's solicitor asked for an extension of time. However, if they are continuing to ask for extensions or not even communicating with you about exchange after previous deadline i.e. early Oct (I think I have worked out the last deadline to be) has been missed then you can make an application to the ET for an Unless Order. You will need to detail the notes that atticusset out in post #9. Also, just on a point of protocol you will need to copy in the respondent and ensure that you make the Tribunal aware you have done this. The following phrase to insert is useful:

In accordance with rules 30(2) and 92 of the Employment Tribunals Rules of Procedure 2013, I have sent a copy of this application to the Respondent and hereby notify him that any objections to the application should be sent to the Tribunal, with a copy sent to the me, as soon as possible.

[gban]

Thanks ULA. I will give them a couple of days after the deadline then I will do just that. Thanks.

[gban]

ULA. What would happen if their defence is eventually struck out for not producing witness statements. Is this what the respondents could be looking for. Would the ET3 still be referred to at the main hearing ?

We have proved everything they have said to be lies with our evidence in the bundle. Would it still go to a hearing or would the Tribunal just come to a decision on the evidence they have ?

[ULA]

A decision to “strike out” by the ET is taken as a very last resort as there have been a number of recent cases where such action and the consequential outcome has resulted in the Respondent successfully appealing the final decision at the Employment Appeal Tribunal.

In answer to your question what actually happens if a claim is struck out depends on a number of factors and as I do not have all the information on your claim and case progression it would be difficult to determine how the Tribunal would proceed. Factors that would be taken into account by the Tribunal would be what type of claim you have, what information has already been provided by the Respondent (from what you have said it appears only the ET3 and possibly a Ground of Resistance GoR document) and whether a fair trial is still possible?

From what you have set out at the current time my view is that the Tribunal would not of their own volition strike out the Respondent's defence and it would be unlikely that any strike out application from you would be successful, they have not done enough wrong yet to warrant the Tribunal striking out.

I would suggest taking this a stage at a time and pursue getting the respondent to the position of exchanging witness statements and if this cannot be achieved, by them sticking to an agreed deadline for exchange, then you will need to make that Unless Order application.