Tips on Setting Out the Grounds of Response
If a claim has been made against you / your client, you will be required to complete the ET3, often referred to as the response. It is common for a “grounds of response” to be attached to the ET3, which is a document setting out on what basis you defend the claims.
This is an important document. It is your opportunity to sway the Tribunal (having just read the ET1) from poor Claimant to hmmmm, there is more to this, I wonder if these claims will stack up – or something to that effect.
This is your opportunity to set out your defence and give your version of events. This is a chance to persuade and not just to deny everything.
Some Tips for producing the grounds of response are:
1. The documents.
I know this does not relate to the drafting, but it should be done first. The first task is to collate all the relevant documents and place them in date order. You then need to read them. This can form the draft bundle later. I usually create a hard and electronic copy of all the documents – the electronic copy can be shared easily.
2. The structure of the response.
As this is your chance to give the Respondent’s version of events, do so with a clear structure. Mirroring the particulars of claim is quite frankly annoying and not very persuasive. For example, simply responding to each paragraph in the particulars of claim, paragraphs 1-3 are accepted, paragraph 4 is denied etc, hardly makes good reading and its annoying to keep needing to refer back to the particulars of claim.
I accept this is sometimes needed / useful but keep it to a minimum. An alternative structure is:
a. Introduction / Parties. Here briefly introduce you and or the parties, particularly if this was not done on the ET1. Make sure it’s clear what party you are representing, this is often a problem when there is more than one Respondent.
b. Applications. Respondents often make applications in the grounds of response, but most often they are lost. I suggest making a separate application. However, if you do make it in the grounds of response, make it at the outset, under a separate heading, then summarise it again at the end of the document.
c. Cast List. If you are going to be referring to lots of different people, a list at the outset, stating their name, position and how they are involved is helpful. For example, Peter Jones, MD (Dismissing Officer).
d. Your version of events. This section may be titled “Background” or “Relevant Facts.” This is where you set out your version of events. Keep it short and clear. Use headings to break things up. Only write in chronological order. My tips on setting out the particulars of claim also apply here.
e. The key is to set out your version of events, addressing the key points. Bare denials appear evasive.
f. If appropriate, accept points. If the ET1 says the Respondent failed to forward the disciplinary meeting minutes to the Claimant before the appeal and this is correct, deal with this point. Accept this was done by accident and explain why it made no difference.
g. Use appropriate detail. This is clearly harder if the particulars of claim are poor, but setting out a chronological account of the key events now will pay dividends later. There is no need to detail every back and forth, but set out and detail the key meetings, decisions etc. If you do this well, even though the particulars of claim are poor, it puts you in a better light and suggests you have nothing to hide.
i. If this will make the document too long and or be disproportionate, look for ways to address this in the document and avoid appearing to side step dealing with the claims. You may state you are only dealing with the claims presented in time as it would be disproportionate to address time-barred claims until the Tribunal rules on their inclusion.
h. Don’t argue points for the sake of it. The most common example is accepting whether the Claimant is disabled or not. This is often a bug bear of Judge’s. The threshold is low, so if you can accept the Claimant is disabled then do so and focus of the main battle ground. Often, Respondent’s deny the Claimant is disabled, when clearly they are, to then concede this point later. This only adds to the duration and cost of the process.
i. Responding to specific aspects of the ET1. If there are specific aspects of the ET1 you need to respond to, do this after setting out your version of events. Give some context as opposed to just the paragraph number. For example, at paragraph 25 of the POC, the Claimant alleges Mr Smith called her x on the 25 November 2016. Mr Smith has not worked for the Respondent since January 2016.
j. Responding to the Claims made. This is where you address the legal aspects of the claims. Again, use headings and deal with each claim in turn.
3. Some things to avoid:
a. “Unless specifically accepted elsewhere in this response, the claims are denied.” Why write this when all claims are denied? A simple, “for the avoidance of doubt, all the claims are denied” makes much more sense and saves the reader wondering if they missed something and a claim was accepted.
b. “The Respondent reserves the right too….” This again makes little sense. You cannot reserve a right. You either have it or you don’t. If you want to communicate something, then just say so. If you will have that opportunity anyway, why write this.
A common example is: “if the Claimant further clarifies his claim, then the Respondent reserves the right to amend its response.”. You can’t reserve this right but will be given the opportunity anyway.
If you must say something, try: “If the Claimant further clarifies his claim, then the Respondent intends to apply to the Tribunal for permission to amend its response if required.”
4. Concluding points.
Much like the particulars of claim, doing this properly takes times, but its worth it. If after drafting the grounds of response you have a draft bundle, a clear chronological account of the facts and your defence to each claim clearly set out, you are ahead of the game. You will also be able to persuade the reader, as opposed to annoying the reader (i.e the Judge) with denying 100 paragraphs of the ET1 then reserving your right to amend your response.
This blog is for information purposes only. Nothing should be relied upon as a substitute for legal advice and nothing written should be construed as legal advice or perceived as creating a lawyer-client relationship.
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