LEGAL COSTS – can you recover them from your opponent after winning a legal dispute?

Kuldeep S. Clair, our senior Consultant Solicitor in Dispute Resolution and Employment Law offers his views on this important topic: 

This question is understandably a common initial concern for many clients when they are deciding whether to issue court / tribunal proceedings, and  also when they are defending proceedings against them. 

The rules are complex and not automatic. They depend on the discretion of the Judge, and on things like the nature of the claim and the particular court or tribunal that you are in. Let’s go through a few guidelines but please remember to refer to the exceptions I have outlined later as well: 

  1. Employment tribunals – you will not recover your legal costs if you win, and will not have to pay the other side’s legal costs if you lose either. 
  • Civil money claims of less than £10,000 – as above, apart from relatively nominal fixed amounts totaling probably a few hundred pounds in most cases. (The other side will pay your court fees.)
  • Civil money claims above £10,000 – You will usually be able to recover a large proportion of legal costs which are reasonably incurred. What that means is that there is still a duty on your solicitors to act reasonably in the conduct of a claim so that whatever shortfall payable by you is as small as possible.   
  • Other civil claims, such as landlord/tenant, employment, commercial claims, company disputes – as per 3 above. The court is more likely to award you costs in a matter which is of higher value, since judges do not want to encourage people to clog up the courts with low-value disputes. But the value of the claim is only one factor, and of course, disputes can concern many other issues than just money. 

All of these principles can be overridden by the basic exception which is that a court or tribunal may award costs against a party if he/she has behaved in a manner which is regarded by the Judge as appalling or un-co-operative, and which has increased the legal costs incurred by the other side. It is important to appreciate that this does not mean just by losing the case. Clearly someone always has to lose. It means seriously inappropriate behavior, such as pursuing a utterly hopeless or dishonest case which was absolutely bound to fail. Or using litigation as a device to abuse or harass an opponent. 

If you are advised by your lawyer that all your legal costs will definitely be covered or recovered from the other side, you should remain skeptical. I always advise my clients honestly and fully about the merits of their case and also about the position on costs.  There are no guarantees concerning costs, other than through certain kinds of legal insurance. The problem with that kind of ‘after-the-event’ insurance is that it is only suitable for certain kinds of situations and cases, and it is also quite expensive. I can discuss those options with you in detail. 

Your best bet is to have a solicitor who has the experience and perspective to give you honest, forthright advice about the positive and negative aspects of your case, to prepare your case thoroughly, and fight your case vigorously once you have given clear instructions.  

If you have any queries about a dispute, please feel free to contact me initially without obligation. 

Kuldeep S. Clair 

Consultant Solicitor

Employment, Dispute Resolution and Litigation

+44 (0) 7484 61 4090

kuldeep@sterlinglawyers.co.uk

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A Victory for Our Client in the Employment Tribunal

Our client was employed as a bus driver and had 18 years of continuous employment. He had a clean record with no warnings or incidents. 

While driving in the rain, he had been involved in one unexplained low-speed accident which resulted in a collision with three parked cars and a fence. This caused about £40,000 of damage. He believed that the brakes on his vehicle had failed, although the employer had carried out tests and found nothing to be wrong.

There was video evidence of the bus journey, including in the driver’s cab. This showed that he was obviously awake and not distracted at the time that the accident occurred. 

The cause of the accident could only be complete unexplained negligence by our client, the driver, but he did not accept that. He disputed it from the very first time that the employer interviewed him. The company dismissed him within a couple of weeks, and his internal appeal was also unsuccessful.  

Attempts to negotiate a compromise were unsuccessful and this led to a hearing recently at Watford Employment Tribunal. One of the large ‘magic circle’ City law firms and their specialist employment barrister opposed us all along. 

Our employment solicitor, Kuldeep Clair, handled the case for us, and also advocated at the tribunal.

The decision of the tribunal came a month after a three-day hearing. We pointed out how the company had not considered theoretical alternative explanations for the accident, and how disclosure of the brake test reports had come extraordinarily late. The company’s culture of hostility to lawyers representing employees was also criticised; their HR appeals manager had been uncooperative and failed to look at the original decision afresh. 

The negative side was the following:

The tribunal felt that the employer can conclude the brakes were not faulty. This is in the light of all of the evidence, and lack of a positive alternative explanation from the client.

Decisions to dismiss are rarely black and white. They need to fall in a ‘band of reasonable responses’. A tribunal will always be looking at the overall reasonableness of the employer’s decision taking account of the full circumstances.   

However, we were successful in pointing out the procedural irregularities throughout. The tribunal decided that if the employer had adopted a proper procedure, there was a 30% possibility that the employer’s decision might have been in favour of our client. So, he received only a proportion of his full damages. However, that was enough to cover the trial costs. He fought the case as a matter of principle, and so he was pleased with the result. He had few ongoing losses as he found an alternative job three months after being dismissed in any event.

If you would like advice on any aspect of employment or business law, please contact us directly:

Kuldeep S. Clair

Consultant Solicitor 

kuldeep@sterlinglawyers.co.uk 

+44 7 484 614 090

Debt and Money Claims in the UK

Debt and Money Claims: personal or on behalf of businesses, whether you are pursuing or defending

We are accustomed to recovering money or defending claims for monetary sums on behalf of our clients.

Unfortunately, the fact that it is not possible to recover hardly any legal costs in cases in ‘small claims’ cases  means that it may not be worth instructing us unless, practically, the dispute involves a sum of at least £6,000.

Having said that, sometimes our clients want to pursue their debtor as a matter of principle, even if the net sum recovered for them is a small proportion of the total sum that was due. That is entirely understandable.

Not all debt claims end in success. There is often a lot of frustration along the way. The lawyer’s job is very difficult. But often, we are very successful.

Sterling Law have concluded a settlement in a case where we had been acting for an architect who had been dealing with a company in the building trade. Several of our client company’s invoices totaling almost £9,000 over the early part of 2018 had remained unpaid for 5-6 months, despite repeated demands for payment. The debtor had just completely ‘blanked’ our client.

We have now received the final instalment in payment from the debtor company in this case, against whom we obtained judgment. This has been paid to our client, the creditor company. Of course our client’s director has expressed his delight at the outcome. 

Judgement-in-Default

The defendant, despite being a highly qualified professional, ignored our two ‘letters before action.’ He then ignored our issue of the court proceedings. We then obtained ‘judgement-in-default’ against his company. He then sprung into action when was threatened to face enforcement of the judgement. Various excuses were made, including blaming his accountants for not receiving the letters and court papers on time, even though they were sent to the correct registered office of the company. Ultimately, the director threatened that he would dissolve his company unless we accepted half the sum due, in full and final settlement.

We were not going to be fobbed off by this nonsense and advised our client accordingly. We had no reason to believe that the defendant company was on the verge of insolvency, and if it was so, we questioned why the director had half the sum sitting in his bank account, available to be paid immediately.

Ultimately, we obtained agreement for half the debt under the judgement to be paid immediately (which it duly was, this week), and for the second half next month.

Our client was delighted with the result; a combination of litigation and tough negotiation achieved a great result. If we had merely launched into enforcing the judgment, it would have taken much longer to obtain the money and costs (payable by our client and not all recoverable from the other side) would have been higher.

If you have a dispute upon which you need advice, please contact us. We can either represent you in court or just provide advice at an initial consultation.

Please contact Kuldeep S. Clair, Consultant Solicitor and Advocate, directly:

Email: Kuldeep@sterlinglawyers.co.uk

Mobile: 07484 614090

Tel. 020 7822 8599

FAMILY REUNION IN THE UK

PARENTS ARE ABLE TO JOIN THEIR CHILD WITH A REFUGEE STATUS IN THE UK

Our clients, who are Ukrainian nationals, were initially refused to enter the UK. They wanted to join their refugee child who was living in the UK with her grandmother. The grandmother had been struggling to provide adequate care for the child because she also cares for her husband who suffers from complex healthcare needs. The family’s separation was because of the conflict in Crimea, where our clients continued to live during the appeal process.

Sterling Law successfully appealed the aforementioned refusal.

In accordance with AT and another v Eritrea [2016] UKUT 227 (IAC):
Decision to maintain separation of the family is a disproportionate breach of the appellants’ Article 8 rights. The importance of the best interest of the child and the clear interest in maintaining the family unit outweighs the need to maintain immigration control.

The Judge accepted the applicability of the aforementioned case, and thus, despite the fact that

  • neither of the appellants spoke English and
  • both were dependent,

the Appeal was allowed on the basis of Article 8 ECHR and our clients where granted entry clearance in the UK and reunited with their child.

Similar immigration problem? Do you believe the Home Office made a wrong decision? Contact our experienced lawyers for professional advice.

Book consultation here:

Or book a free 15 min phone call with us!

Or just email us:

contact@sterling-law.co.uk

Leave to remain on the basis of private & family life

Leave to remain on the basis of private & family life granted to Oksana’s Demyanchuk client.

Our client, a Ukrainian national, entered the UK in 2011 with her parents and has resided in the country ever since. At the time of the application, she was under 18 years’ old and has been living in the UK for a period of 7 years continuously. Oksana Demyanchuk submitted an application on behalf of the client for leave to remain on the grounds of private and family life. (Paragraph 276 ADE(1)(iv) of the Immigration Rules).

The age of the child and the amount of time spent by the child in the UK were relevant to determining where the best interests of the child lie. The circumstances of our client were that she did not have a valid passport and was unable to obtain one.

 Oksana Demyanchuk has explained in her representations to the Home Office the particular circumstances of our client and submitted the alternative proof of ID.

Finally, the ongoing social and military crisis in Ukraine, including personal circumstances of this particular client meant that it would be unreasonable to expect the family to come back to Ukraine at this time.

 In such a manner, our client’s application was approved and she was subsequently granted leave to remain in the UK by the Home Office. There were no powerful reasons found to prevent the leave from being granted. Notably, it was approved within 3 months, which is very prompt to a case of such a complex nature.

WHEN THE HOME OFFICE SHOULD EXERCISE DISCRETION

Applicants under the Points-based system

  • Tier 4 students,
  • Tier 2 and Tier 5 workers,
  • Tier 1 visa holders,

must strictly comply with all visa requirements and supply certain specified documents in support of their applications. It is clear in “stark terms” under paragraph 39B of the Immigration Rules that ‘if the necessary documents are not provided, an applicant will not meet the requirement for which those documents are required as evidence.’ As a result, an application will not be successful.

 

However, in case of exceptional circumstances the Home Office should exercise discretion. Moreover, since R (Behary & Ullah) v SSHD [2016] EWCA Civ 702, it has been good law that the Home Office is obliged to consider discretional grant [outside of the Rules] ‘when expressly asked to do so’. The categories of exceptional circumstances are not closed. In the guidance, examples are given of what could constitute such circumstances, but each case depends on its facts.

 

For example, discretional leave can be granted if educational provider has its licence withdrawn or revoked during the period between an application for extension of leave as a Tier 4 (General) Student and the Secretary of State’s decision on the application (see Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC)).

 

However, the Home Office is quite strict in exercising discretion, especially, in case of Tier 1 (Entrepreneur) extensions. Recent cases of:

  • R (Prathipati) v SSHD (Discretion – Exceptional Circumstances) [2018] UKUT 427 (IAC);
  • R (Sajjad) v Secretary of State for the Home Department [2019] EWCA Civ 720;
  • Khajuria, R (on the application of) v The Secretary of State for the Home Department [2019] EWHC 1226 (Admin)
  • Asiweh v The Secretary of State for the Home Department [2019] EWCA Civ 13

are good examples.

 

Thus, it is crucial to seek an immigration advice if not before submitting an application straight after receiving refusal. Our experienced Lawyers can assess the merits of bringing a judicial review claim and provide the best Immigration solution in case a judicial review would be waste of your time and financial resources.

 

I cannot provide all the documents to support my visa application, what do I do?

 

Are you currently on student, work, entrepreneur or any other point-based system visa and looking to extend it?

Or are you looking to apply for the first time?

You must strictly comply with the document list to support your application. Usually, the Home Office is very strict on this while they are evaluating your case, and if you do not provide a required document, your application may be refused.

However, sometimes, in case of exceptional circumstances, the Home Office may exercise discretion, and consider a grant.

There are several categories described in the guidance of such exceptional circumstances. However, each case should be evaluated on an individual basis.

Moreover, the Home Office is quite strict in exercising discretion, especially in case of Tier 1 (Entrepreneur) extensions.

We strongly suggest to seek legal advice before submitting such an application.

We can assess your case and evaluate your chances of getting visa.

However, if you already received a refusal, we still can help. Our lawyers will assess the merits of taking your case to the judicial review claim stage. If we think judicial review will not be successful, we’ll provide you other immigration solution.

The case was successful due to efforts of our Immigration Lawyer Oksana Demyanchuk and her team.

oksana@sterling-law.co.uk

+44 020 7822 8535

+44 7 305 966 531

 

 

CHILD IS ALLOWED TO JOIN HER MOTHER IN THE UK

Our client, a national of Uzbekistan, applied for indefinite leave to remain in the UK to join her mother, who was settled in the UK. Although the client was living in Uzbekistan with her grandparents, her mother while living in the UK had continued to provide financial care for her daughter as well as remaining responsible for the major decisions in her life.

 

In accordance with paragraph 297 of the Immigration Rules the requirements to be met by our client seeking indefinite leave to enter the United Kingdom as the child of a parent present and settled in the United Kingdom are that:

(e) this parent is present and settled in the United Kingdom and has had sole responsibility for the child’s upbringing.

 

 

The Home Office refused our client’s application on the basis that:

at the very least the client’s care had been shared between her mother and her grandparents (since she was living with them), as a result, her mother could not show sole responsibility.

 

An appeal was lodged with the First-tier Tribunal (IAC) against the refusal. While waiting for an appeal date, our client turned 18 years of age. However, this did not affect our client and Sterling Law successfully appealed the decision.

In view of all of the evidence submitted in support of the appeal, which was thoroughly prepared by Oksana Demyanchuk and her team, the judge found that

  • the sponsor [client’s mother] has had sole responsibility for the appellant;
  • that responsibility lasted for a significant period of time;
  • therefore, the appellant satisfies the provision of 297(i)(e) and the appeal should be allowed on the human rights grounds.

 

Thus, after around a year of uncertainty, our client is able to join his mother in the UK.

 

Contact us should you have any immigration-related question:

oksana@sterling-law.co.uk and michael@sterling-law.co.uk

+44 (0) 207 822 8535

You can also text us via facebook.

 

 

Exceptional Promise visa granted

Exceptional talent (Exceptional Promise) visa granted after the initial application was refused.

The first application was submitted under the exceptional talent category. After the refusal, our immigration lawyer Aliya suggested the client to re-apply under the Exceptional Promise category.

Aliya submitted satisfactory evidence with his application to be considered for fast track. The client got his endorsement within 3 weeks after submission which is quite fast considering that it could take up to 2 months.

If you want to know more details about the Exceptional Promise category, just let us know.

 

You can contact Aliya on

aliya@sterling-law.co.uk

+44 020 7822 8535

ARTICLE 8 APPEAL OUTSIDE THE IMMIGRATION RULES ALLOWED ON THE SPOT!

Our client, a citizen of the Russian Federation, came to the UK at the age of 12 to study. After graduating with a bachelor’s degree from a UK university, our client applied for Indefinite Leave to Remain in the UK under the ten-year continuous long Residency Rules.

The Home Office refused the application with no right of in-country appeal. The client’s previous legal representatives did not challenge this decision, at which point our client became an over-stayer as his continuous leave was broken. Instead, our client then applied for leave to remain based upon his private life. This application was refused on the grounds that our client did not satisfy requirements 276ADE of the Immigration Rules.

Immigration Rules 276ADE (1)

The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

 

After approaching numerous other lawyers, the client approached Sterling Law. Our lawyer, Oksana Demyanchuk and her team lodged an appeal with the First-tier Tribunal on the grounds that the decision was a breach of our client’s Article 8 ECHR human rights. In particular, the emphasis was placed on the fact that our client had established an extensive private life in the UK since his entry. After considering the grounds put forward and the bundle of documents provided in support of the appeal, the Judge allowed the appeal on a spot despite our client not meeting any of the Immigration Rules! In doing so, the Judge found that

the Home Office timing resulted in unfairness because it effectively prevented the appellant from benefiting from paragraph 276 ADE of the Immigration Rules when he had qualified for indefinite leave to remain.

 

Moreover, the Judge found that our client

  • has built up a significant private life in the United Kingdom;
  • has the English language skills of a native speaker;
  • is financially independent; and
  • It would be in public interest to retain him in the country.

Bearing the above in mind, it was held that any interference in the Appellant’s private life will result in unjustifiably harsh consequences.

 

Thanks to Oksana Demyanchuk and her team, our client can remain in the UK which already become a home for him.

 

Contact us should you have any immigration-related question:

oksana@sterling-law.co.uk and michael@sterling-law.co.uk

+44 (0) 207 822 8535

You can also text us via facebook.

AFTER FIVE REFUSALS CLIENT OBTAINED LEGAL IMMIGRATION STATUS IN THE UK

Our client, a national of Sierra Leone, came to the UK as a visitor. Since one of his family members was involved in political activities against the government our client feared for his life on return to Sierra Leone and decided to stay in the UK.

He applied, without legal representatives, for leave to remain on the medical grounds twice. However, these applications were refused.

After several years he applied for leave to remain on the human rights grounds. Again, the Home Office refused these human rights applications although our client had integrated into UK society, having lived here for over 16 years at the time of the last refusal. Moreover, for the last four years, he has been in a relationship with a British citizen and has established a close relationship with her British child from the previous relationship. They all lived together and our client cares for the child while his mother is at work.

 

Sterling Law successfully appealed the last Home Office refusal. In reaching his decision the Judge stressed that:

The welfare of the minor child of this family is a primary consideration in my deliberations. The child is British, entitled to the benefits of his citizenship, which include living in Britain and having access to its education, health and social care systems. Moreover, the child enjoys regular direct contact with his biological father that would be lost if the child has to leave the UK.

 

It follows that it is not reasonable and to remove our client from the UK as he is one of the main carers for the qualifying child. Thus, the Judge allowed the appeal on the human right grounds.

 

Thanks to Sterling Law, the client finally obtained legal immigration status in the UK after over 10 years fighting for his rights with the Home Office.

 

Contact us should you have any immigration-related question:

+44 (0) 207 822 8535

contact@sterling-law.co.uk

DRUG CONTROL POLICEMAN GRANTED ASYLUM IN THE UK

Our client worked in the Police Force for several years. He was involved in investigating cases against a number of high profile individuals as well as arrests of police officers who had links to organised crime and the Mafia. After one of such investigations, our client had been attacked on his way home. Then, his home had been broken into. Later on, our client found out that the person in whose arrest he was involved had been released from prison without charge. After that, the police unit our client had worked in had subsequently been closed down.

As a result of these activities, our client left his country of origin, where he would likely to face arrest and ill-treatment. Obtaining a visa, he arrived in the UK and claimed asylum. After arrival to the UK, our client even received a summons notifying him of criminal proceedings against him.

However, the Home Office refused his asylum claim stating that many facts are speculative and our client:

Had failed to show a sustained or systemic failure in State protection on the part of the authorities in his country of origin if he were to be returned.

 

It was at this point that the client approached Sterling Law and, due to the work of Oksana Demyanchuk and her team, sufficient evidence was provided to convince the Judge that:

 

the State in the country of origin would not be able to provide adequate protection to the appellant.

 

Thus, the Judge found that our client has a well-founded fear of persecution in his country of origin and:

 

his removal would cause the United Kingdom to be in breach of its obligations under Qualification Rules and under the 1950 Convention.

 

The Appeal was allowed and our client obtained refugee status in the UK.

 

Contact us should you have any immigration-related question:

oksana@sterling-law.co.uk and michael@sterling-law.co.uk

+44 (0) 207 822 8535

You can also text us via facebook.

STERLING LAW WON ANOTHER ‘MARRIAGE OF CONVENIENCE’ CASE

Sterling Law is proud to stand for the rights of families not to be separated by the faulty actions and decisions of Immigration Officers.

 

Our client, a national of Georgia, was refused an EEA residence card on the grounds that her marriage is not genuine. The Home Office relied heavily on three facts in making the decision:

    1. Our client’s poor immigration history:
      • she overstayed her visit visa and was working illegally in the UK;
      • she was detained 2 months before her marriage and later released on bail.
    1. An Immigration Officer’s visit to our client’s previous address.
    2. Our client’s failure to attend marriage interviews.

Nevertheless, Sterling Law successfully appealed this decision. Despite several inconsistencies in the evidence of the appellant and the sponsor about certain aspects of their life together and our client’s poor immigration history, the Judge was satisfied that the marriage is genuine. Thus, the appeal was allowed.

 

In Sterling Law, we know how disappointing it is for a genuine couple to receive a visa refusal on the grounds that the Home Office believes your marriage is a sham. Contact us should you have this problem.

 

Tel. +44 (0) 207 822 8535

Email: josephine@sterling-law.co.uk      contact@sterling-law.co.uk

Or book consultation here.

DOMESTIC WORKER GRANTED SUBSEQUENT LEAVE TO REMAIN OUTSIDE OF THE IMMIGRATION RULES

Can a domestic worker in a private household establish a family life with the family they work with?
If Oksana Demyanchuk is dealing with your case, then yes!

 

Our client, a Russian national, has been working as a nanny for a family, since the birth of their first child five years ago. When the family moved to the UK, our client obtained a six-month domestic worker in a private household visa to accompany them to the UK and continue her employment as the family’s nanny.

As a nanny to the children, our client spent a significant amount of time with them since their birth and has become incredibly close to the children. One of the children who has several health issues has built a particularly trusting relationship with our client.

Due to the particular circumstances of the family, our client’s support of the family is vital. By the time our client’s leave to remain was due to expire our client’s support to the family was irreplaceable.

However, from April 2012 the Immigration Rules does not allow domestic worker visa holders to extend their stay in the UK beyond a total six-month limit.

 

Therefore, our client applied for leave to remain on the basis of her human rights, in particular, her right to private and family life in the UK.

 

The Home Office refused to accept that family life between our client and her employers and their children existed for the purposed of Article 8 ECHR. Accordingly, an appeal was lodged with the First-tier Tribunal.

At the appeal, on the grounds and documents advanced by Oksana Demyanchuk, the Judge found that

There are no hard and fast rules as to what constitutes family life within the compass of Article 8. And thus, given the nature of the dependency, family life exists in this case for the purpose of Article 8.

 

Moreover, the Judge accepted that more than normal emotional ties exist between the Appellant and the family and the refusal to grant our client leave to remain is disproportionate and constitutes a breach of her Article 8 ECHR rights. Thus, the appeal was allowed.

 

Contact us should you have any immigration-related question:

oksana@sterling-law.co.uk and michael@sterling-law.co.uk

+44 (0) 207 822 8535

You can also text us via facebook.