NEWS - TRIBUNAL COSTS - 19.10.2006

Getting the (ex-) employee to pay

The troublemaker

If you’ve ever had to face a troublesome ex-employee in tribunal, you’ll know just how frustrating it can be. The tribunal will have given an order for documents to be prepared and exchanged by a certain date and they flatly refuse to communicate with you. Your numerous letters are ignored. By this time you are probably wondering whether you should continue to prepare the case and, of course, you must. Furthermore, you still have to appear at the tribunal unless the claimant settles - which looks increasingly unlikely. But the good news is that if their behaviour continues, you can make them pay.

Tip 1. If the claimant persists in ignoring your correspondence, copy in the tribunal. At every hearing the claim file is available to the tribunal so that it can see the history of the case. A pattern of non-co-operation by a party is unlikely to impress the tribunal.

Tip 2. Keep a log of every phone call, letter, e-mail etc. involved in dealing with the case (especially with the claimant). Later on, this will be valuable evidence in support of your claim for costs. When writing to the claimant, set out a brief summary of the requests you have already made and the fact that these have been ignored. It all gives weight to your case and helps the tribunal reach a decision.

The question of costs

Where it becomes clear that the claimant simply isn’t going to respond, you should write again and explain that they could face a request for costs if the tribunal goes ahead. Some people are reluctant to do this as they think this could be construed as threatening the other party. However, most tribunals accept that a costs warning, given in the latter stages of preparation for the case, is acceptable. So don’t be shy!

Strike it! If, in the last few days prior to the hearing, you have still heard nothing, write to the tribunal, with a copy to the claimant, and request that the case be struck out. Examples of reasons for requesting this would be that the claimant has behaved unreasonably or has failed to comply with an order or directions of the tribunal. Such a request will normally be the first issue to be considered once the hearing has commenced. If the application is granted, then apply for costs.

Tip. Sometimes a tribunal chairman will ask whether “you have any other application that you wish to make?” This is code for “would you like to make an application for costs as the claimant has behaved in a thoroughly unreasonable way.”

Won’t costs act as a penalty?

The fact that the claimant can end up paying your costs isn’t widely known. So it comes as quite a shock to a claimant who thinks they are there to get money from you, to find that they are ordered to pay money to you. This is because costs are not normally awarded against a party unless they have acted vexatiously, abusively, disruptively or unreasonably or bringing the case has been misconceived. A claimant who ignores you and the tribunal will almost certainly be held to have acted unreasonably. You can also ask for costs if the claimant fails to appear or withdraws part of a claim during the hearing or where they had no hope of winning. But you may not get all your costs. Much depends on the ability of the claimant to pay and, of course, how much you are asking for.