Legal processes don’t work : or perhaps just work for solicitors?

[NamechangedforET]

I have brought a claim against my employers which is due to be heard in mid July. We are meant to be exchanging witness statements today. Their solicitors have asked to extend the deadline as they have more documents they want to disclose. They asked for a further two weeks : I suggested one week as I need time to consider their statements and prepare for the tribunal. Today they have informed me that they have more than 200 documents they want to disclose. How is that reasonable? I am a litigant in person, work full time and am disabled. How can I possibly deal with that? I have emailed the Court for advice (they gave today’s date in the Case Management Orders). Just utterly fed up : it’s impossible. How can we claim to have a fair and just legal system when it’s acceptable for solicitors to behave like this?

It is fair and just because they are required to disclose everything that is relevant, even if it undermines their case. If there was a limit on the number of documents disclosed, they would only disclose documents that help them.

Of course, at this stage you don't know how big these documents are. Many of them may be short emails or one page documents. There may also be a lot of documents you have seen before, so don't need to read again. It certainly won't be 200 copies of War & Peace.

I am sorry I do appreciate your reply but I still don’t think the legal process is fair or just. The solicitors, in my case, haven’t behaved properly.

The Respondent has had over a year to disclose these document's. The deadline for disclosure was meant to be before Christmas. They disclosed several hundred documents then and have now , less than a month before the hearing and after the deadline for exchange of witness statements, said they have found another 200 documents: which they still haven’t sent to me as they are waiting on instruction.

Disclosing so much information now puts me under a lot of pressure which I don’t think is reasonable. I think it’s a deliberate tactic and underhand. What is the point of a case management order if they can just ignore them.? They have in effect forced me to either ask for the hearing to be moved (which I know they would like for political reasons) or put myself under huge pressure.

They have also been difficult over the bundle: what they will allow me to include and what they won’t. I think ultimately that should be a matter for the judge but they won’t have it.

I have unfortunately come to the conclusion that the legal system in this country is only really there to support big companies and the wealthy. I had naively thought both sides would present the evidence they have and an independent person would make a decision based on this. I had underestimated the impact that the games the solicitors play would have and how it’s almost impossible unless you have a solicitor to get a fair hearing. I’m afraid my experience has been a joke. It’s very disappointing.

Late disclosure is usually driven by the client rather than their lawyers.

If the other side has not complied with case management orders, you may be able to apply for costs. If the non-compliance is serious (which it sounds like it is), the tribunal may simply strike out their defence, meaning you will win by default.

There is no way they should prevent you putting what you want in the bundle. If they refuse, submit your documents as a supplemental bundle and make it clear that the other side refused to include your documents in the bundle.

It is likely to be your ex-employer playing games rather than their solicitors. Regardless of who is doing it, on the information you have posted it seems to me that their actions are making it more likely you will win your case. Don't write off the legal system yet.

I know frustrating, but in my experience, if a document is disclosed late, it is usually because it hurts their case and helps yours. If it were helpful to them, they would have disclosed at the start.

If you have insufficient time to consider you can always ask to postpone the hearing date and for a new timetable as you need time to address late disclosed evidence.

You could make an application for a new case management hearing to deal with late evidence rather than just a paper exercise.

Get A letter in asking for new dates

Thank you for all your replies: I am grateful . I don’t really want a new tribunal date : this has dominated my life for too long already and I want it resolved either way so I can move on.

I just think it’s a flaw in the legal system. The Case Management Orders said we had to disclose and they had to prepare a bundle last year. They have been so difficult about what I can include (I appreciate claimants/ litigants in person probably include too much but if relevance is disputed surely that is a matter for the tribunal it’s not for the Respondent to decide/ take things out?).

This week we were meant to exchange witness statements. They have over 200 additional documents they now want to disclose. They still haven’t sent them to me, despite their solicitors having them since at least the start of the week, as they say they are waiting on instruction from their client. I have a feeling they want me to either get overwhelmed or ask for the case to be put back. I really don’t want to do that and will work through the night if I have to. It just doesn’t seem fair???

I agree with all of this.

i understand your frustration but it’s worth noting that it’s usually the clients, rather than their solicitors who drive delays in these things. There’s every chance your former employer gave the documents to the solicitors late. Solicitors will rarely do anything to risk their reputation before the Courts/Tribunals by missing deadlines. It’s often the same judges each time. Even for unscrupulous lawyers/firms it’s simply not worth the risk, professionally, to misbehave on behalf of one client because it can be detrimental to other cases.

Hmm. Watching the post office enquiry I would say lawyers can and do play whatever games they can to get their way. I agree that the law is very much only accessible to rich people.
Went through it with my then employers twenty years ago but luckily my fantastic union paid for all my legal expenses. Otherwise my employer would have been able to chew me up and spit me out. They strung things out for six years of dirty tricks, lies and victim blaming and then settled days before we were due in court.
Best of luck to you.

The legal system is imperfect but it's a last resort when things can't be resolved by any other means. Lawyers simply help the parties to use the system - they don't make the law. And it's not in their interests to play games.

The claimant's assumption is usually that he or she is 100% right and that the law is allowing the employers to make things difficult for her. The employer may think she is 100% wrong - but might nonetheless pay her something to avoid the hassle and costs of going to court. They may accept they have acted illegally - and again offer to settle in recognition of that. Unfortunately that sometimes fuels the fire as claimants think "Ah ha! They admitted it!" and think court will be easy. It rarely is.

It is an expensive and stressful and time-consuming process for both parties.

It may not be the case for the OP but most tribunals are because people think they can get more money. Sometimes they are right - but not always. And employer has a duty not to pay out more than it has to and not to leave itself open to countless frivolous and baseless challenges.

I'm sorry for OP that this is so difficult - mediation might be a better approach but I'm guessing that's been tried. 😕

Thanks for taking the time to respond. I did go to ACAS but they wouldn’t engage in mediation. Apparently they never do.

I don’t think I am 100% right and I don’t blame lawyers for using the system to their advantage but I think some of the processes in the legal system (in my case around disclosure and bundle preparation) need to be tightened. It can’t be right that someone (especially a huge organisation with vast resources) can simply ignore case management orders? Why wait until the date you are meant to be exchanging witness statements to say you have another 200 documents to disclose? Even now they won’t send me the documents , even though the solicitors have had them for at least a week, as they say they are waiting on instruction. Each day we get closer to the hearing I have less time to prepare. I know for political reasons they would like to postpone the tribunal but I really don’t want to. I want it over and done with.

I am not naïve: I know the chances of a litigant in person winning a case against their employer is probably miniscule (yes I am sure everyone knows an exception but they are exceptions). The legal system is now weighted in favour of those with plenty of resource. I appreciate that many solicitors don’t want to see it that way but it’s the truth. Unfortunately as cases have shown us recently it’s not about fairness and truth it’s about having the resource and legal knowledge to play the system.

I agree that the system is far from perfect. Unfortunately a lot of the rules designed to make things fair (like stringent discloses requirements and extensive CMC checklists) have also made the process more expensive and unwieldy and hence favour those with deeper pockets and more stamina.

All I can suggest is that you write a summary for court of the various ways that the other side have not complied with procedure (including their refusal to mediate) as the judge/tribunal will be extremely unimpressed with all this and it may help you overall.

Just to reassure you a bit OP - Tribunal Judges generally really try to give lots of leeway to litigants in person to ensure they aren't disadvantaged and some litigants in person absolutely win their cases. Definitely put together a timeline of every way in which the respondent has been unreasonable or obstructive during the litigation.

It can’t be right that someone (especially a huge organisation with vast resources) can simply ignore case management orders?

The courts cannot force people to comply with their orders, but they can make sure there are consequences for anyone who doesn't. If one side ignores case management orders and the other side incurs costs as a result, the courts can make the non-compliant side pay the other side's relevant costs. If one side's non-compliance with case management orders is serious, their case can be struck out. So no, no-one can simply ignore case management orders. If they do, there can be consequences for them.

I do see your point OP. Did the employer offer you nothing at all? If they think they have done wrong they will almost always settle.

No they haven’t offered to settle. I didn’t expect them to. Apparently they rarely do and if they do it is once the trial has started?? I know it sounds as though my chances aren’t very good but they genuinely have done what I am claiming and so I’m seeing this through (whilst accepting the odds probably aren’t that good?).

Im not sure why it is taking them so long to get instructions over disclosure of documents. Is that normal? Has made me quite anxious but may just be that my employer is notoriously slow/ disorganised for such a large organisation.

They have an almost unlimited legal budget which I am told makes them reluctant to settle. Far more scrutiny over any settlements they make.

I really need some urgent help. I am panicking:sorry.

I have brought a claim against my employer. It is scheduled to be heard in two weeks. I am a litigant in person. We were meant to exchange witness statements last week.They asked if they could extend the deadline issued by the court as they had more documents (over 200 to disclose). I asked the court for advice as the Respondent wanted a further two weeks ,I thought one should be sufficient as I was worried it was eating into my time to consider their witness statements and prepare.No response from the court so far :have emailed and called .

On Monday evening they emailed me a copy of the 200 documents they want to disclose. Have been working through the night reading them and amending my witness statement where necessary. Unfortunately the page numbering is a mess (lots of duplication - so pages1-200 duplicated twice,for example) : so I emailed saying would they be amending them so I could cross refer to them in my witness statement without confusing the tribunal (they were asked to prepare the bundle).

They have just emailed me to say they intend to issue a new bundle next week. However , and this is what I am worried about, they have looked at the documents I disclosed and decided that some of them aren’t relevant and will not be including them in the bundle.

They have said that if I want them to be included I will need to produce my own bundle. And provide them with a copy.

Obviously they are entitled to take a view about relevance but at this late stage to say I need to create my own bundle is , I feel unfair. Initially I thought I would just crack on and do it but then realised until I get their bundle I won’t know what they have chosen to include or not. Nor can I finalise my witness statement.

I work full time and have no help. I know they are hoping I will seek an extension but I don’t want more of this.

What would you do? It’s starting to make me feel ill and desperate.Why are they behaving like this?

I would put together my own supplementary bundle. Explain that they have refused to include all your documents in the bundle and that, as they have left it until the last minute to produce the bundle, you have no idea which documents they have included. I would get your witness statement in now, making the point that you are being hampered by their late disclosure. You can always put in another witness statement if you need to. And I would ask the tribunal to strike out their defence due to their non-compliance with the case management order.

Thank you.

Sorry if these are stupid questions.

They are reformatting the bundle (adding their new documents and taking out mine, correcting the wrong pages numbers etc ). I therefore don’t know which page of the bundle to refer to in my witness statement. I don’t want to look incompetent or unhelpful to the tribunal by providing an incomplete or inaccurate WS (whilst recognising that I could follow it up with another WS as you suggest). Would you submit the WS with gaps for the unknown bundle pages and/or just put the old ones in?

Assume I should send it to the ET without copying the Respondent in or they will get advance sight of mine before issuing theirs? And email them to say what I have done?

Thank you. Sorry to ask. I have been reading all the guidance (Handbook for LiP etc) but it doesn’t say much about this sort of situation.

On balance, I would go with referring to the existing page numbers with a note that you will update when they've stopped messing with the bundle (although I wouldn't put it quite like that!).

You should copy the respondent. If you want to complain about them failing to comply with case management orders, you need to be clear that you have done everything you can to comply and that any non-compliance is down to them.

P.S. Yes, sending it to them means they will see yours before submitting theirs. However, when you get theirs, you can amend yours if necessary. The fact that you will probably need to update any references to documents in the bundle will give you good reason to amend your statement quite apart from reacting to anything they say. And of course, you will have the opportunity to pull their statement to pieces in the hearing if the tribunal doesn't strike out their defence.

Does anyone know if it’s possible to pay a solicitor or Barrister for a one off piece of work? And if so would it cost tens of thousands or could I get it for2/3 thousand?

Time is now so tight am wondering if I could pay someone to help? Eg do the first draft of the skeletal argument and a list of questions for witnesses (if I ever get their witness statements!!! ). Obviously I would need to pay them to read in and they may not have any availability I would still need to read and double check everything but may take a bit of the pressure off? Or would it just add to my workload in practice? Any thoughts: thank you

It might be worth checking your home insurance policy to see if you have any legal expenses insurance. It sometimes gets added on as a free extra and usually gives cover for employment disputes. They may be able to appoint a solicitor to help or you may have access to a legal helpline who can talk through your options.

Another option is to look for a barrister who does direct access and get them to do skeleton.