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JGM, Solicitor
Category: Employment Law
Satisfied Customers: 12188
Experience:  30 years experience as a solicitor.
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I have a full hearing at the EAT coming up in 8 weeks. I have

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I have a full hearing at the EAT coming up in 8 weeks. I have 3 different heads of appeal - one of which is inadequate reasons provided by the ET for stopping "future losses" at a certain date, when my claim was for 6 months longer. Although I am bound to win on this at least in the EAT - as the ET judgment clearly did not provide adequate reasons & I am confident that on evidence before the ET I should have been awarded losses upto my claimed period, as things actually turned out - I did better in mitigating my losses than the judgment on this measure. I am unsure if I should withdraw this ground of my appeal. Is it safe to postpone withdrawal until the hearing itself - to cater for the possibility that the other side may want to settle with me before that, based on more heads of the claim.
Thank you for your question.
From a procedural point of view the is nothing to stop you withdrawing one ground of appeal immediately prior to the EAT. So from a tactical point of view it would be better to leave it and as you say, see if it contributes to a settlement between now and the hearing.
I hope that helps.
Customer: replied 2 years ago.

Hi JGM, thats reassuring. Would I be at risk of any costs order because of the lateness? I don't see this withdrawal of this ground shortening the length of the hearing from 1 day to half. But, I can imagine that the opposing counsel would prepare for this ground of appeal (although I imagine on a fixed brief fee?) which if I withdrew earlier would have been time saved for her?

The rule is summarised well thus:
"If you have a reasonable case and run it properly, the chances of costs is infinitesimal. If your case is misconceived and you run it unreasonably, the chances are much higher than 1%. But the common implication from respondents that cost awards are routine is simply not true."
Withdrawing the submission on one ground even at a late stage is more likely to be appreciated by the EAT than not. And counsel, particularly Senior Counsel, do it all the time. All you have to do is say that your not insisting on that line of argument having considered it in preparation.
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