Some Updates in Employment Law

From April 2014 Early conciliation came into force.  Before lodging a claim to the Tribunal you willl need to tell Acas first, where conciliation will be offered, only if conciliation is unsuccessful within the set period can the claimant  proceed to lodge a tribunal claim.

From April 2014 there are changes to Flexible working rights

The Government proposes to extend the right to request flexible working to all employees and remove the current statutory procedure for considering requests. Instead employers will have a duty to consider all requests in a reasonable manner; employers will have the right to refuse requests on business grounds.

Fathers right to time off for antenatal appointments

From the 1st October 2014 The Children and families Act allows fathers to be and partners of pregnant women, to take time off to attend two antenatal appointments with the expectant mother.

From 1 October 2014 the government have confirmed that parental leave for parents or children born or matched adoption on or after 5th April 20114 will be flexible.

Under this new system parents will be able to choose how they share the care of their child during the first year after birth. Mothers will still take at least the initial two week following the birth, following that they can choose to end the maternity leave and the parents can opt to share the remaining leave as flexible parental leave. 

COULD RULE 3.10 PROVIDE A DEFENCE IF YOU FAIL TO COMPLY WITH A COURT ORDER

In the a recent case of  Integral Petroleum v SCU-Finanz AG[2014] EWHC 702  the scope of r.3.10 was explored by Popplewell J.

In Integral the parties agreed an extension of time by e-mail for the service of the Particulars of Claim by 28 days to 6^th June (in fact 28 days would have given until 10^th June). The Particulars were served by e-mail at 18.41 on 10^th June and to all intents and purposes were deemed to be served out of time.   No Defence was filed and the Claimant obtained judgment in default. The Defendants challenged the validity of the Claimant's service on the grounds that service by e-mail was not the  agreed method of service and, service was late. 

Justice Popplewell  considered the Claimant's application in light of  Rule 3.10  which grants General power to the court to rectify matters where there has been an error of procedure

The rules are set out as follows:-

3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error

Justice Popplewell decided that the error of procedure in serving the Particulars of Claim by e-mail was a failure to comply with a rule or practice direction which fell within r. 3.10. Accordingly under r. 3.10(a) such service was a step which was to be treated as valid:

• He considered that the rule was to be construed as of wide effect so as to be available to be used beneficially wherever the defect has had no prejudicial effect on the other party. The method of service was recognised but the formalities necessary to make it a permitted method had not been concluded.
• He drew a distinction between service of the originating process and service of Particulars of Claim and thought a narrower approach to r. 3.10 should be taken when dealing with the originating process.
• He stated that Rule 3.10 was particularly apposite for treating as valid a step whose whole function was to bring a document to the attention of the opposing party where such function has been fulfilled - he said “It prevents a triumph of form over substance”.
• The judge also found that the rule applied in relation to service of the Particulars of Claim 5 days out of time.

Justice Popplewell therefore set aside the judgment under R13.3.

Rule 13.3 . deals with Cases where the court may set aside or vary judgment entered under Part 12

Under Rule 13.3

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order) 

So it may be worth considering referring to Rule 3.10  when you next find yourself in trouble with deadlines, procedural formalities etc. Watch this space because it looks like caselaw on this rule is likely to develop

This article is for information purposes only

Bad News Court fees are going up

There is another blow for Litigants in Person as Court fees go up, official figures out soon but in the meantime changes are likely to be as follows:-

Fees for compensation claims between £5,000 and £10,000 increasing to  £445
Fees between £10,000 and £300,000 will increase by £2,00

There will be a standard fee of £280 for civil cases which are not about claims for money

Permmision to apply for judicial review will increase to£135 and permission to proceed will increase to £680.00

Fees will remain the same for cases involving sensitive family issue, including child contact, divorce financial disputes and adoption applications
One bit of good news the £75 application fee for domestic violence injunctions and for those seeking a non molestation and occupation orders are to be scrapped.

The above is for information purposes only 

Bedroom Tax and your child having a bedroom at your home because you have joint custody

If you know anyone who has joint custody of their children and that child stays overnight with them for 3-4 days a week, but they are still being threatened with a reduction of their benefits because of the bedroom tax, then this case provided by Nearly Legal could be helpful.

http://nearlylegal.co.uk/blog/wp-content/uploads/2014/04/newcastlefamily.pdf

Bringing an Employment Tribunal Claim you now need to apply for Early Conciliation

If you are thinking of bringing an Employment Tribunal Claim, from the 6th April 2014 you will need to ensure that you make an application for early conciliation, for up to date information on this service go to
http://www.acas.org.uk/index.aspx?articleid=1461 and to access the Early Conciliation Notification Form go to https://ec.acas.org.uk/

For full details of how Early Conciliation Works go to http://www.acas.org.uk/media/pdf/h/o/Early-Conciliation-explained.pdf


The above is for information purposes only

Proportionality and what it means

Proportionality and what it means

As you may now one of the new key words when conducting legal proceedings today is proportionality, but to date there has not really been a great deal of guidance in this matter.

In November 2013 there was a high profile divorce judgment in favour of Michelle Young, who won a £20,million.  Ms Young spent 6.4 million on legal costs.  The Judge was not impressed and described the level of costs of the proceedings as being “completely unacceptable”, despite knowing that Ms Young had faced many problems in pursuing her claim and ordered a reduction of the costs.  Though we have not had a definitive ruling in respect of the definition of proportionality it is clear the level of costs incurred in a case will be considered as against the value of the claim itself.  i.e. if the value of your claim is £5000 and your incur £10,000 in legal fees, it seems that the Court will not consider this to be proportionate, even if your costs are reasonably incurred, at the end of your claim a Judge may reduce your costs. It is unlikely that this will affect Litigants in Person in quite the same way as legal professionals however the court’s may apply the principle of proportionality in respect of Expert’s reports obtained by you to support your claim and you may not recover the full value of the disbursement fee you incur in obtaining your expert evidence.

We will need to wait and see what guidelines the Court’s provide when an appropriate case comes before them.  Until then remember you need to prove that any costs incurred in pursuing your claim are reasonable.

Deborah E Aloba

Affordable Law For You Limited

This article is for information purposes only

CASES AND FACTS EVERY LITIGANT IN PERSON SHOULD BE AWARE OF

I am afraid that a wind of change has now blown itself through the Courts and over the last two of three years there have been some important changes that Litigants in Persons need to be aware of. 

Litigants in person can no longer afford to have a sloppy approach to their cases.  It will not be tolerated  by the Courts anymore.

Below are some examples of cases which this point loudly and clearly.  The first deals with a Defendant who was acting as a Litigant in Person who did not turn up for his own trial.

In Tinkler and another v, Elliott (2012)  Mr Elliot a Litigant in Person (Defendnat) failed to attend trial however he did provide a medical certificate of unfitness to attend court. The trial judge rejected this and granted the Claimant a permanent injunction and general restraining order against Mr Elliott.

The matter was appealed to the High Court who set the judgment aside under CPR 39.3 holding that Mr Elliott had a good reason for not attending the original hearing.  The Claimant appealed this decision and the The Court of Appeal restored the original court’s decision, holding that CPR 39.3 had to be rigorously adhered to and made it clear that under CPR.39.3 the court had no discretion to set aside a decision taken in a party’s absence until the applicant satisfied three requirements of the rule.

The first requirement was that the  applicant had acted with all reasonable speed in the circumstances.  Though Elliott had relied on his poor mental health and “his ignorance as a litigant in person of the availability of an application to set aside”. The Court of Appeal held that Mr Elliott had been capable of acting as a litigant in person. What is important about this case is  Court of Appeal’s views regarding his ignorance as a Litigant in Person.

The Court of Appeal said that “there may be facts and circumstances in relation to a litigant in person that may go to an assessment of promptness……they will only operate close to the margins,” and they further stated that “an opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person,” and that lack of understanding of procedures “does not entitle him to extra indulgence”.

However you must appreciate that Mr Elliot had waited 21 months in which to make his applications and if you made an application promptly the Court may take a different approach however, you can see from this case what the Court’s general approach is.  SO DO NOT DELAY IN MAKING ANY APPLICATION OR APPEAL

In the case of Fernandes v Kenny and Others, Court of Appeal, 23 October 2012

A Landlord who was acting as a Litigant in Person applied to set aside a judgment for damages in respect of a deposit, the judgment had been entered at a small claims hearing and he had not attended the hearing.

His application to the District Judge failed, as did the first tier appeal to the Circuit Judge, who held that there was no discretion to hear an application made out of time.

The Court of Appeal reminded the Circuit Judge that he had overlooked the fact that Civil Procedures Rules 3.1 allowed the court to extend the time limit set out in Civil Procedure Rules 27.11(2) but still found that the lower courts had been correct in its Judgment that the landlord had had no good reason for failing to attend the original hearing.  THE MORAL OF THE STORY IS ATTEND ANY HEARINGS THAT THE COURT DIRECTS YOU SHOULD ATTEND AND IF SOMETHING VERY URGENT HAPPENS (and I mean very urgent i.e. death of a member of the family (close) or your own illness then inform the Court immediately and provide proof i.e a letter from your GP  

The Employment Appeal Tribunal has taken a different view in relation to litigants in person in Employment Tribunals, but in view of recent decisions in the Court I would not rely on the employment tribunals remaining slightly more lenient in their decisions, however in the recent case of  AQ Ltd v Holden [2012] IRLR 648 which dealt with the question of whether a litigant in person should be responsible for Respondent’s costs The Employment Appeal Tribunal held that a court was entitled to consider the fact that a party was a litigant in person in deciding whether to order costs against that party.  They made it clear that the law was the same whether or not a litigant was professionally represented or not.  However the EAT considered that  the application of the law, and the court’s exercise of its discretion,  had to take into account whether a litigant was professionally represented and  should not judge a litigant in person by the standards of a professional representative.

They went on to state that Justice required that tribunals did not apply professional standards to Litigants in Person, as, in many cases, they lacked objectivity and knowledge of law and practice brought by a professional legal adviser. However they made it very clear that Litigants in Person should not regards themselves as immune from a costs order being made against them and this has been made clear in the recent case of  Vaughan v London Borough of Lewisham and others  when the Litigant in Person had £60,000 in costs awarded against her where the EAT applied with Rule 40(3) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which provided that an order for costs could be made where the paying party in bringing or conducting proceedings has acted vexatiously, abusively, disruptively or otherwise unreasonably.

The rules that clarify a Litigant in persons’ right to costs can be found at The Litigants In Person (Costs and Expenses) Act 1975;  The Act gives a Litigant in Person the right to recover “sums in respect of any work done, and any expenses and losses incurred, by the litigant in or in connection with the proceedings to which the order relates”.

It applies to all civil and family courts, the Lands Tribunal and both the first tier and upper tribunals and most cost-bearing tribunals; Under S1(1) of the Act Litigants in Person should be aware that  only out of pocket disbursements are recoverable if costs are not recoverable.

In Agassi v Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 [2006] 1 All ER 900 it was established that even if a Litigant in Person had been represented by a professional legal adviser for part of the proceedings they could still apply for the costs they incurred when they were not presented.

If you do decide to claim your costs as a Litigant in Person you should file and serve written evidence to show details of your costs and disbursements no later than  24 hours before any hearing.    If the costs you are applying for are to be subject to a detailed assessment by the Judge at the hearing you are attending then  you must provide  written evidence  with the of your costs.   I personally don’t believe in leaving these matters to chance and I advise all my clients to ensure that details of costs are provided 7 days before any hearing.  I not only send it to the Court via post but also fax it and I ensure that I get a copy of proof of postage and keep the fax receipt sheet, then there can be no question that I file it in good time especially as Courts have a habit of losing documents.  Don’t forget to take a further three copies to the Court with you, one for you, one for your opponent and one.

When applying for your costs don’t be greedy and don’t try to fool the Court under CPR 46.5(5), you cannot claim a witness allowance as well as your time as attending as a witness.  CPR 46.5(5) states “‘A litigant who is allowed costs for attending at court to conduct his case is not entitled to a witness allowance in respect of such attendance in addition to those costs.

You cannot in any event recover more than two-thirds of the amount to which a solicitor would have been entitled.  But you can recover your disbursements in full.

As a  Litigant in Person you have to show that on the balance of probabilities  a financial loss has been suffered.    In Mainwaring v Goldtech Investments Ltd [1997] 1 All ER 467 the Court considered whether a Litigant was entitled to their costs and in making this decision they compared the financial losses that would have been sustained between a “a self-employed tradesman in a small but profitable way of business who had more custom than he could cope with and could fill every working hour to advantage; IN OTHER WORDS A PERSON WHO WOULD HAVE TO TAKE TIME OUT OF HIS BUSY WORK SCHEDULE TO CONDUCT LEGAL PROCEEDINGS AS A LITIGANT IN PERSON, or at the other extreme, a retired civil servant with an index-linked pension who found the conduct of litigation a more interesting pastime than bowls or crossword puzzles”.  The question that would be ask in this instance is could this person prove that they had suffered a financial loss in acting as a Litigant in Person.

In the case of Joseph v Boyd and Hutchinson [2003] EWHC 413 the court considered that it should adopt a broad brush approach when considering if a Litigant in Person was entitled to costs in circumstances  where a Litigant in Person undertook work during hours when the Litigant in Person should have been engaged in their normal employment. The Court said they would not need to find out the ins and out of which work a Litigant in person had done but  the Litigant in Person would have to prove that he was employed and how much he/she earnt.

To claim costs you must prove that you have undertaken work that  that a legal representative would have undertaken and a disbursement must be one that would have been incurred by a legal representative.   In the case of  Grand v Gill [2011] EWCA Civ 902 the court followed the decision in R v Legal Services Commission Ex Parte Wulfsohn [2002] EWCA Civ 250 that a reasonable sum was payable for costs where time was spent on research.

 I hope the above has been insightful.

Deborah E Aloba

AFFORDABLE LAW FOR YOU LIMITED

This article is for information purposes only.