Withdrawing a claim Advice needed

[happylife]

Hi

I hope someone can help.

I am over one month until my tribunal. I have received legal advice which cost me £400 for someone to look at my claim in detail and then advise I have a very weak case and highlighted were the Respondent should win the unfair dismissal case I believe I was dismissed for. They suggested trying to settle with the respondent via ACAS.

I have tried to settle with the respondent via ACAS for losses incurred but so far they not responded and I don't expect the will. It is a small business and the owner will not settle to save face and set a precedence to her other staff.

My questions.

1. Should I hold out for settlement or withdraw the claim (on the advice I was given) giving as much notice as possible.
Withdrawing could ultimately cost me on any settlement but also holding out could cause the respondent to request costs if I pull out at the last minute. Even if they have refused to communicate and come to any settlement throughout,

2. Do I need to give a reason to withdraw with over one month to Tribunal.

I am unsure how to proceed and worried they will claim costs if I withdraw also.

Any help appreciated.

Regards
S

[Amethyst]

Re: Withdrawing a claim Advice needed

Pending others more experienced input, this is the advice from CAB.... basically the earlier the better as the risk of costs is higher the closer you get.

Can I change my mind about going to an employment tribunal?

If you've made a claim to an employment tribunal and change your mind, you can withdraw your claim. For example, you might decide that you don't want to carry on your case because you feel that you may lose. You can withdraw by simply writing to the tribunal saying that you want to withdraw your claim.


But you need to be careful about the timing of this. The best time to make this decision is when you know what your employer’s case is going to be and you can think about the strengths and weaknesses of your own case. If you leave this decision to later on, after your employer has spent a lot of money dealing with your claim, you may be at risk of having to pay costs.


If you agree a settlement with your employer through Acas, your case will usually be automatically withdrawn from the tribunal and you won’t normally have to go to a hearing.
If you agree a settlement with your employer in another way, you or your representative will need to make sure you withdraw your case from the tribunal.

[happylife]

Re: Withdrawing a claim Advice needed

Hi Many thanks, I have seen this on CAB.

the delay on me withdrawing the claim is that the respondent has not communicated any intentions to ACAS. ACAS have heard nothing.

Therefore could this be used in any cost request that the respondent has acted unreasonable in communication ?

I don't want to jump too early incase they are thinking the settlement request over and on the other hand leaving it too late could cost me.

What would others do with one month to go until hearing. Would they just drop now and walk away ? or wait ?

[Amethyst]

Re: Withdrawing a claim Advice needed

ACAS are really probably the best placed to advise.

[FlamingParrot]

Re: Withdrawing a claim Advice needed

Hi Many thanks, I have seen this on CAB.

the delay on me withdrawing the claim is that the respondent has not communicated any intentions to ACAS. ACAS have heard nothing.

Didn't you go through Early Conciliation with ACAS prior to issuing your claim? That has been a requirement for at least a year as far as I know, you had to get certificate from ACAS and you needed the number to issue your ET1.

Therefore could this be used in any cost request that the respondent has acted unreasonable in communication ?

Costs are not often awarded against either side at the ET, if anything they are more likely to be awarded against a claimant who insists in proceeding despite not having a case. I'm not saying this will apply to you as I have no idea about your case, however, I did get warned about costs when I issued a claim many years ago. The other side hired Baker & McKenzie (a Magic Circle firm) :scared: to represent them, so I ended up accepting their ridiculous commercial settlement precisely for that reason.

I don't want to jump too early incase they are thinking the settlement request over and on the other hand leaving it too late could cost me.

If you are not paying a solicitor to represent you, your biggest cost will be the £950 hearing fee, unless you qualify for fee remission. The fee will have to be paid prior to attending the hearing.

What would others do with one month to go until hearing. Would they just drop now and walk away ? or wait ?

A settlement can be proposed at any time right up to the day of the hearing, so I wouldn't be withdrawing the claim too early. I'd be using the month you've got left to get a second opinion (and maybe even a third and fourth one) before making the decision to withdraw. You may find you can get advice by phone and/or email, without having to pay a penny. Try these:

• ProBono-Chester@law.ac.uk
• law-clinic@kent.ac.uk

I've recently used both of them.
You may find some others here: http://lawworks.org.uk/index.php?cID=10866 :thumb:

[teaboy2]

Re: Withdrawing a claim Advice needed

Can this be moved to the employment section please?

And @happylife - if you can provide a back story as to your claim then the more likely we are to be in a position to give you the support and advice you need!

[happylife]

Re: Withdrawing a claim Advice needed

Many thanks for all the replies. We had advice the claim would not be successful from a employment solictor. But you are right I may get a second opinion.

I went through all the ACAS conciliation and ET1 etc and the hearing has been granted. I should qualify for fee remission of £950 so as i'm representing myself will personally not cost me. Apart from the stress.

I really wish to try and settle but the lack of communication from the respondent apart from the case management letters is making me think they are not considering any settlement. I have asked for £2100 via ACAS to settle the claim. Expecting even less but No reply.

If I knew there was no chance of being awarded respondent costs against me I would continue. As I have received advice I have little to no chance of success. I am worried that the tribunal may deem this as a vexatious claim. So withdrawing early would seem the best solution. However I still think they will go for costs they have incurred preparing the case. We are not even at preparation of bundle yet,

This is not a vexatious claim. The money is not worth the stress. I understand that a tribunal is not for winning Moral victories but The fact I believe my employer acted unfairly and do not want him to think he can do this to all his staff, makes me want to continue and his lack of communication makes me even more determined.

I just don't know what to do here.

[happylife]

Re: Withdrawing a claim Advice needed

Can this be moved to the employment section please?

And @happylife - if you can provide a back story as to your claim then the more likely we are to be in a position to give you the support and advice you need!

I'm not comfortable posting on here the full case incase the respondent is also using these forums. I'm happy to DM anyone outline of the case.

[FlamingParrot]

Re: Withdrawing a claim Advice needed

Many thanks for all the replies. We had advice the claim would not be successful from a employment solictor. But you are right I may get a second opinion.

I went through all the ACAS conciliation and ET1 etc and the hearing has been granted. I should qualify for fee remission of £950 so as i'm representing myself will personally not cost me. Apart from the stress.

I really wish to try and settle but the lack of communication from the respondent apart from the case management letters is making me think they are not considering any settlement. I have asked for £2100 via ACAS to settle the claim. Expecting even less but No reply.

If I knew there was no chance of being awarded respondent costs against me I would continue. As I have received advice I have little to no chance of success. I am worried that the tribunal may deem this as a vexatious claim. So withdrawing early would seem the best solution. However I still think they will go for costs they have incurred preparing the case. We are not even at preparation of bundle yet,

This is not a vexatious claim. The money is not worth the stress. I understand that a tribunal is not for winning Moral victories but The fact I believe my employer acted unfairly and do not want him to think he can do this to all his staff, makes me want to continue and his lack of communication makes me even more determined.

I just don't know what to do here.

A few questions if I may:

1. The employment solicitor who advised the claim wouldn't be successful, did they also warn you about the possibility of costs awarded against you?
2. Is the respondent represented by a solicitor?
3. Have you gone through disclosure and exchanged witness statements yet?
4. Did your solicitor prepare a schedule of loss and tell you how much an award would be if you won the case?

£2,100 sounds a bit low for you to put forward as an acceptable figure, in the even a settlement was offered, it's always likely to be much less than what you asked for. I know a guy from another forum who, a few years ago, got £4k from McD's!

[FlamingParrot]

Re: Withdrawing a claim Advice needed

I'm not comfortable posting on here the full case incase the respondent is also using these forums. I'm happy to DM anyone outline of the case.

You may want to consider a VIP subscription for added privacy. :thumb:

[happylife]

Re: Withdrawing a claim Advice needed

A few questions if I may:

1. The employment solicitor who advised the claim wouldn't be successful, did they also warn you about the possibility of costs awarded against you?

No, This was a employment solicitor I paid for advice on my claim, If he thought it had any chance he would have took it on and as it was slim he dropped it.
No mention of costs from anyone as yet. This is just what I have read that there is a remote chance of costs. which is why I am considering dropping as early as possible.

2. Is the respondent represented by a solicitor? Yes, His solicitor has also has NEVER mentioned or threatened costs would be sought as yet.

3. Have you gone through disclosure and exchanged witness statements yet? Only list of documents for disclosure have been exchanged No actual documents or witness statements

4. Did your solicitor prepare a schedule of loss and tell you how much an award would be if you won the case? I prepared this myself and it was around £7200 including loss of earnings etc. I don't expect to get anywhere near this figure. But it's what I have calculated. I do not have any legal representation only advice as a one off fee to determine whether my case would have any chance. Which was no, it would have a low success chance and the best I can do is try and settle. Which is what I have tried via ACAS mediating but no reply. I have asked ACAS and they have had zero response.

5. £2,100 sounds a bit low for you to put forward as an acceptable figure, in the even a settlement was offered, it's always likely to be much less than what you asked for. I know a guy from another forum who, a few years ago, got £4k from McD's! I would accept £2100 for early settlement based just on my loss of earnings.

Many thanks answers above. Any further questions please ask.

[FlamingParrot]

Re: Withdrawing a claim Advice needed

No, This was a legal advisor (solictor) I paid for advice on my claim. No mention of costs from anyone as yet. This is just what I have read that there is a remote chance of costs.

Yes, His solicitor has also has NEVER mentioned or threatened costs would be sought as yet.

All the more reason to seek a second opinion. The solicitor you consulted had a duty to warn you about the potential for costs awarded against you if there was such a possibility, however remote. I can't tell whether the absence of such a warning was down to negligence on hi part or because he didn't think they would be awarded, which is why you should seek further advice and ask the question once you have told them the full details of your case.

New rules apply with regards to costs awards with effect from 2013, although the changes refer mostly to the recovery of fees from the other side. I had costs warnings in 2003. The CAB says costs orders are only made in less than 1% of cases.

p3. Have you gone through disclosure and exchanged witness statements yet? Only list of documents for disclosure have been exchanged No actual documents or witness statements

I assume you have an idea what the documents listed would be, does it sound like they have a lot of evidence against you? You should have been presented with the evidence prior to your dismissal, as part of the disciplinary process

I prepared this myself and it was around £7200 including loss of earnings etc. I don't expect to get anywhere near this figure. But it's what I have calculated. I do not have any legal representation only advice as a one off fee to determine whether my case would have any chance. Which was no, it would have a low success chance and the best I can do is try and settle. Which is what I have tried but no reply.

Did you also submit a claim for wrongful dismissal? Presumably you were dismissed without notice, this is where this comes in and is more significant if you were with your employer a long time.

I would accept £2100 for early settlement based just on my loss of earnings.

You'd usually as for more than what you would be willing to accept as they are likely to offer less. In some cases, employers may offer a commercial settlement without admission of liability, which means it's cheaper for them to pay you a certain sum than to proceed with the case and pay their own legal costs.

[happylife]

Re: Withdrawing a claim Advice needed

All the more reason to seek a second opinion. The solicitor you consulted had a duty to warn you about the potential for costs awarded against you if there was such a possibility, however remote. I can't tell whether the absence of such a warning was down to negligence on hi part or because he didn't think they would be awarded, which is why you should seek further advice and ask the question once you have told them the full details of your case.

I'm Just worried it will cost another £400+ just to be told the same answer of drop the claim. Financially it may not be worth it in the end to be told the same thing.



New rules apply with regards to costs awards with effect from 2013, although the changes refer mostly to the recovery of fees from the other side. I had costs warnings in 2003. The CAB says costs orders are only made in less than 1% of cases.

No doubt they will try and claim costs. So I guess I may be in the 1%.



I assume you have an idea what the documents listed would be, does it sound like they have a lot of evidence against you? You should have been presented with the evidence prior to your dismissal, as part of the disciplinary process

Yes I have all their Witness statements. They do not have mine although during the Disciplinary hearing they made notes and I have received. There is no damning evidence in these notes. Their decision was based purely on balance of probabilities from Witness statements which were untruthful and others non existent. Which is why i want these cross examined. Unfortunately Balance of probabilities is usually is enough to determine if you are guilty. I do not have any witnesses. They had CCTV and I have requested this. They have so far not complied.

Did you also submit a claim for wrongful dismissal? Presumably you were dismissed without notice, this is where this comes in and is more significant if you were with your employer a long time.

Just unfair Dismissal. Not wrongful. I was dismissed without notice. I was not aware I could ask for wrongful dismissal if this is the case. I believe it was certainly unfair.
I had been with my employer 15+ years and NEVER had any warning about my conduct before. I must add it took 1 Month from the gross misconduct incident before they made contact with me about the allegations for the hearing. I have to be careful as I am giving too much away on here and they may be reading.

You'd usually as for more than what you would be willing to accept as they are likely to offer less. In some cases, employers may offer a commercial settlement without admission of liability, which means it's cheaper for them to pay you a certain sum than to proceed with the case and pay their own legal costs.

Yes this is what I was told hence the £7100 Schedule of losses and £2100 settlement fee.



Also one more question.

If I have been advised to drop the case by an employment solicitor and I continue. Can this be used against me to claim costs as a vexatious claim should the tribunal investigate this ???

Thanks for your help on this.

[FlamingParrot]

Re: Withdrawing a claim Advice needed

I'm Just worried it will cost another £400+ just to be told the same answer of drop the claim. Financially it may not be worth it in the end to be told the same thing.

I would never suggest paying that much again! :eek2: I've submitted ET claims twice and have never paid for legal representation, let alone advice. I posted up some suggestions about getting free advice.

No doubt they will try and claim costs. So I guess I may be in the 1%.

They can TRY all they want, it's up to a judge to award them. If the solicitor who charged you £400 didn't warn you about costs, it could be because either:
a) He didn't think they would be awarded, in which case you should be safe or
b) He was negligent and omitted a crucial bit of advice, in which case he probably just ripped you off.

The trouble is, we just don't know, :mmph: hence the suggestion of getting a second opinion, this time asking that specific question.

Yes I have all their Witness statements. They do not have mine although during the Disciplinary hearing they made notes and I have received. There is no damning evidence in these notes. Their decision was based purely on balance of probabilities from Witness statements which were untruthful and others non existent. Which is why i want these cross examined. Unfortunately Balance of probabilities is usually is enough to determine if you are guilty. I do not have any witnesses. They had CCTV and I have requested this. They have so far not complied.

It would be in civil proceedings including employment, unlike criminal proceedings where things have to be proved beyond a reasonable doubt. :incourt:

Just unfair Dismissal. Not wrongful. I was dismissed without notice. I was not aware I could ask for wrongful dismissal if this is the case. I believe it was certainly unfair.
I had been with my employer 15+ years

Wrongful dismissal refers to notice periods and it's separate from unfair dismissal. Your contract should have a clause about the notice period you are entitled to which could be more generous (but not less) than the periods stipulated by law. The minimum notice period for employees with over two years' service is a week for each year of service, capped at 12 weeks. That means a 12 week entitlement in your case. Even if the award was capped at the same level as statutory redundancy pay or notice payments form the insolvency fund, you'd still be looking at c£5k for that length of service.

You should have been advised about making this claim in addition to the unfair dismissal one. :sad:

Did you get legal advice from the guy who charged you £400 BEFORE or AFTER submitting your ET1?

and NEVER had any warning about my conduct before. I must add it took 1 Month from the gross misconduct incident before they made contact with me about the allegations for the hearing. I have to be careful as I am giving too much away on here and they may be reading.

Even if they were reading, they couldn't be sure it was you, there are many similar cases and we are not plotting anything sinister here, just establishing your rights. At the end of the day it's not up to the respondent but to the tribunal panel to decide the outcome, and the respondent cannot rely on random forum posts in their response.

If I have been advised to drop the case by an employment solicitor and I continue. Can this be used against me to claim costs as a vexatious claim should the tribunal investigate this ???

Thanks for your help on this.

No, any communications between you and your solicitor are confidential and the tribunal has no powers to investigate your private communications with anyone. They are there to rule on the evidence put in front of them, not to conduct investigations on behalf of either party. Furthermore, if the solicitor in question is not representing you, the ET won't even be aware that you sought advice from that person.

[happylife]

Re: Withdrawing a claim Advice needed

You should have been advised about making this claim in addition to the unfair dismissal one. :sad:
Did you get legal advice from the guy who charged you £400 BEFORE or AFTER submitting your ET1?

My only mistake. No I did not get advice from solicitor as this was done before. I was under a time pressure and needed to submit. in hindsight this was a mistake and I did not realise how crucial this ET1 form could be further down. I asked for unfair dismissal 15 Years Redundancy pay and Loss of earnings plus costs of any tribunal totalling £7200. My Schedule of loss was more detailed. Still no wrongful dismissal claim though.

No, any communications between you and your solicitor are confidential and the tribunal has no powers to investigate your private communications with anyone. They are there to rule on the evidence put in front of them, not to conduct investigations on behalf of either party. Furthermore, if the solicitor in question is not representing you, the ET won't even be aware that you sought advice from that person.

Thanks that makes me feel better. Thanks for all your help.