The Presidential Guidance issued on 18 March 2020 included encouragement to parties and judges to try to progress cases during these extraordinary times:
…[i]t may be possible for the hearing to be converted to a case management preliminary hearing, which will take place in private and could be done electronically, so that progress may still be able to be made in the case. For example, it may be possible at a case management hearing to further narrow the scope of what is in dispute, promote understanding of the law that will be applied to the facts and explore scope for resolving the dispute by alternative dispute resolution. It is expected that parties will cooperate when a proposal of this type is made since it is likely to be a step which will further the overriding objective.
In practice it seems that many of the preliminary hearings that are taking place on what would have been the first day of a trial are simply being used to relist the final hearing. In some regions, cases are not being relisted until the summer of 2021.
In that context, how can we use preliminary hearings or other means to move things forward?
The following analysis from Jennifer Danvers examines whether it is in our clients’ interests to progress cases, provides a few ideas on how to do so, as well as some general tips for conducting preliminary hearings by phone.
Is it in our clients’ interests to try to progress cases?
There may be cases in which kicking a matter into the long grass or waiting until an in-person hearing can take place is what your client wants. For example, if you are representing a Claimant who wants to have their day in court (in person), or, if you are acting for a Respondent who thinks the prospect of a long delay is most likely to encourage a Claimant to settle.
However, in a great many cases, progressing to a resolution as quickly as possible will be what is in the best interests of your client. Reasons for resolving a case as quickly as possible include:
- for both
- ensuring the case is disposed of before memories fade;
- reducing legal costs which mount-up the longer a matter runs for;
- giving financial certainty of what will have to be paid out or received in this time of significant uncertainty;
- mitigating the risk of key witnesses becoming unavailable or uncooperative due to future redundancies;
- putting pressure on Claimants to come to the table due to an upcoming hearing or deadline, which is likely to be more effective as a spur for settlement than a sense that the case might drag on for a while;
- where a Claimant is still out of work, settling or having the case heard before a Claimant’s past losses mount up further;
- receiving an award or settlement that can be used now, particularly in light of the current economic climate;
- bringing an end to the stress of litigation and allowing the Claimant to move forward;
- avoiding the risk of the Respondent becoming insolvent prior to the matter being disposed of.
Alternative dispute resolution – judicial assessment
Judicial mediations are going ahead and generally the view from my colleagues is that the remote mediations are working well. Importantly, platforms like Teams can be used to create parallel “virtual” rooms to mirror the traditional set up during in person mediations. Online mediations could be a relatively low-cost way of resolving the case or at least setting up a route map for settlement even if the matter cannot be settled on the day.
An alternative, less widely used approach, could be seeking judicial assessment of the case. The Protocol for Judicial Assessment states that assessment will generally be offered at the first case management hearing in the proceedings rather than later. In my view, there is nothing in the Protocol precluding parties from asking for an assessment at a later stage. Generally employment lawyers have been very cautious about using this tool. I am not aware of anyone who has taken advantage of the option of a judicial assessment for obvious reasons; an initial unfavourable impression by a judge may not be the one you want as it will set the tone for any subsequent negotiations.
However, in other areas of law, non-binding early neutral evaluations of cases are common practice. For example, in family law, Financial Dispute Resolution hearings are mandatory save for in exceptional circumstances. In those hearings, judges give an indication of what they would order at a final hearing. The parties can then use the rest of the day to negotiate outside of the court room. My understanding from friends who are family barristers is that this process is generally found to be helpful by legal representatives and that in most cases it leads to settlement either on the day or shortly afterwards. If the evaluation given by the judge seems to be too harsh or generous, legal representatives can just advise their clients as such and, if settlement is not reached, the matter proceeds to trial.
Any judicial assessment by an employment judge would not be binding and the same judge would not be able to hear the case at trial. The assessment is confidential and can only be referred to in without prejudice correspondence thereafter. This may mean that the concerns employment lawyers hold about judicial assessment could, in some cases, be unwarranted.
Judicial assessment as a route to settling the claim might be preferable to a very long wait until trial. Where that is the case, now is the time for employment lawyers to start to embrace this tool and to broach this topic with their clients, the other side and the judge. If, for example, you have a case where even taking the other side’s witness statements at their highest you are likely to win, judicial assessment could open a gateway to the other party withdrawing. Alternatively, your client may genuinely want the input of a judge, even if it is not entirely favourable on all points, if it might facilitate a settlement and avoid incurring further costs.
It is unlikely to be workable for parties to simply request and be given an assessment on the spot during a preliminary hearing.
If you think judicial assessment could be helpful I would recommend: (a) either raising the topic with the other side ahead of the preliminary hearing and agreeing how it might work or (b) raising it at the telephone preliminary hearing and then seeking another closed preliminary hearing to take place by phone or video for the actual assessment. One of the things you will have to agree on is what the judge sees ahead of the assessment. It may be simplest for them to be given the pleadings and list of issues; which is what would be available if the assessment were taking place at the first preliminary hearing. However, some cases could be assisted by the judge being provided with a copy of both side’s witness statements and perhaps a small clip of key documents (say, no more than 10 pages each). I anticipate that judges would be unwilling to read much more than that at the risk of turning the assessment into a mini-trial.
Under Rule 56 of the ET Rules, preliminary hearings have to be in public when the listing is to determine an application to strike out or any ‘preliminary issue’ (defined in Rule 53(3) as ‘any substantive issues which may determine liability (for example, an issue as to jurisdiction or as to whether an employee was dismissed)’. This means that until in-person hearings resume or the ETs find a way to make remote hearings public, they are effectively precluded from hearing strike out applications or determining preliminary matters, such as whether a Claimant was disabled.
However, deposit order applications can be heard in private; they are not included in the list of matters set out in Rule 56 that must be heard in public.
Commonly, by the time the trial is approaching it has become clear that aspects of a response or a claim are weak. For example, following disclosure it may be obvious that a Respondent’s asserted lack of knowledge defence is weak, or that the link between the pleaded treatment and a protected act is mere assertion.
These areas could be dealt with by way of a deposit order application, which may cause the other side to either concede the weak elements of their response or withdraw the weak elements of their claim. This allows the issues to be narrowed and the trial to be relisted more quickly because the hearing length is shorter. While applications for a deposit order are more commonly made by Respondents there is nothing to stop Claimant lawyers using the same tactic.
In a recent case of mine, the final hearing was converted to a closed preliminary hearing. We wrote to the other side and the ET in advance of the preliminary hearing making an application for various deposit orders. At the closed hearing the application was heard and we successfully obtained a deposit order on five aspects of the claim, which will dispose of the matter if the deposits are not paid.
Narrowing the issues
Parties may be able to work together to narrow the issues, reduce the hearing length and get the case relisted more quickly.
Ways to do this include:
- updating the list of issues to reflect points no longer in issue or that have been refined;
- seeking admissions or further information from the other side;
- agreeing parts of the witness statements that are not in issue;
- agreeing aspects of remedy where possible.
With the current pressure on listings, any steps that can be taken to reduce a hearing by even a day could make relisting easier.
Considering if the case (or aspects of the case) can be dealt with remotely
You may be able to get your case relisted before the end of June if you can convince the Tribunal that it can go forward remotely.
The biggest hurdle for ETs is the requirement for final hearings to be heard in public.
In the RCJ, the requirement for hearings to be in public is being dealt with by way of the daily cause list which includes contact details if a member of the press wishes to join a remote hearing.
If you have a relatively short one to two day final hearing, particularly where both sides are represented, the following ideas could be suggested to the judge at the preliminary hearing:
- relisting the hearing for before the end of June to go ahead by video – if you have access to appropriate secure software such as Microsoft Teams it may be helpful to suggest that you set up the video-hearing;
- arranging that prior to the hearing starting, the relevant material is sent directly to the judge who is listed to hear the case to ensure they have the correct documentation – see if you can get the judge who is hearing the preliminary hearing to reserve the matter to themselves if they seem willing to try a remote hearing;
- offering to provide a link to the hearing to the ET which can be placed on the ET website for interested members of the public or press;
- listing a short telephone case management hearing the day before the final hearing to allow the parties to test the technology and talk about ground rules for the remote hearing.
Even if your case is listed to go ahead after June 2020, I would suggest that, at least for hearings in 2020, some discussion is had now about how the hearing could progress remotely if necessary.
Given the current uncertainty about when social distancing restrictions will be eased and the likely ongoing difficulties that will exist with specific witnesses, members of the judiciary or legal representatives being in self-isolation or unwell, pre-empting the need for a case to go ahead remotely might avoid you losing a later listing.
If your case cannot go ahead and is relisted for a long time in the future, I would encourage parties to get signed witness statements ready for witnesses now in any event. Not only will this help in terms of memories fading, it also guards against the risk of it being difficult to contact or get co-operation from witnesses who may be made redundant in the future.
Tips for actually participating in preliminary hearings right now
My colleagues and I have come across a number of niggles when conducting preliminary hearings by telephone in the current climate.
My tips for making these hearings work well are as follows:
- Front-load your preparation – the likelihood of you getting what you want from the preliminary hearing will largely depend on steps taken ahead of it:
- Do not just make applications in the course of the preliminary hearing – send them through to the ET at least a week in advance where possible.
- If you do not have any specific applications to make, it may still be worth sending a short note to the ET, either by way of an agenda (if appropriate) or one page ‘list of issues to be dealt with at the preliminary hearing’, flagging up what you believe can usefully be done at the preliminary hearing and how long it will take. This will allow the judge to be more prepared to deal with the matters you want to deal with. Certainly our experience at Cloisters has been that judges tend to be well-read before the start of the preliminary hearing.
- If there are applications to be dealt with at the preliminary hearing provide a short electronic bundle with the key documents in it at least a few days in advance of the hearing to make sure it gets through to the judge. Label any PDFs clearly e.g. ‘E-bundle for PH on X date’ or ‘Applications and responses to be considered at PH on X date’.
- Be prepared to argue – our experience is that different ETs and individual judges are taking very different approaches as to what they are willing to do over the phone. If your judge appears reluctant to do more than relist your case, remind them of the Presidential Guidance about moving things forward – you may need to persuade them of what can be done.
- Go through arguments more carefully than you might normally in person. It is harder to gauge whether judges are with you or not when you cannot see them, so it is best to err on the side of fuller argument, letting them move you on if necessary, rather than skipping over steps in the point you are making. Without the aid of expression and gestures, the way you put your arguments is more important than ever so think about how to structure your points. Make them simple but compelling.
- Be ready to send documents electronically during the preliminary hearing in case the judge has not received them. I would suggest having an email ready to go with the relevant documents attached and your opponent’s email address copied in so you can simply insert the judge’s email address if necessary.
- Avoid a free for all. In the hearing, if the judge does not set down any ground rules about how to avoid people talking over one another and that then proves to be a problem, you may wish to make suggestions as to how to proceed. For example, you could explain that you will wait for the judge to call on you when they wish to hear from you or say that you will indicate when you have finished making submissions to avoid the other side jumping in. This will hopefully prompt the other participants to do the same – it may feel a bit like saying ‘over and out’ at the end of submissions, but in my experience it allows hearings to go more smoothly.
The 18 March 2020 Presidential Guidance ended as follows:
…Our final words are to encourage Tribunals, Employment Judges and all those who seek to access justice through the Employment Tribunal system to approach the unprecedented circumstances we now face in a spirit of mutual cooperation to maximise the number of hearings that are able to take place through the creative use of all means available, which are compatible with the Rules and in particular the overriding objective.
There are ways to move cases forward at the moment. This may be a time when employment lawyers can use tools that we have not used much in the past, such as judicial assessment and video hearings, and new ways of working to ultimately make the resolution of employment litigation more streamlined.
If you have any success with alternative approaches that you would be willing to share with other employment practitioners, please do feel free to get in touch at firstname.lastname@example.org and I can update this blog with further ideas (anonymous or named as you would prefer).
Other blogs in this series are available here:
|Covid-19: Critical workers refusing work – What if everyone is being reasonable?||Schona Jolly QC||26 March 2020|
|Covid-19: Pay for working parents forced to look after their children||Rachel Crasnow QC||27 March 2020|
|Covid-19: Is Facial Recognition Technology in the workspace the answer to social distancing or discriminatory?||Robin Allen QC and Dee Masters||31 March 2020|
|Covid-19: Legal implications of identifying immune workers||Rachel Crasnow QC||1 April 2020|
|Covid-19: An employer’s guide to homeworking||Tom Gillie, Ruaraidh Fitzpatrick and Catherine Casserley||2 April 2020|
|Covid-19: Offering blood, toil, tears and sweat: Emergency Volunteers and the Law||Declan O’Dempsey and Tom Gillie||3 April 2020|
|A collaborative view on the coronavirus job retention scheme||Caspar Glyn QC||8 April 2020|
|Covid-19: Furlough and job retention: Key issues for Employment Lawyers||Daniel Dyal||11 April 2020|
|Furlough Furore: the Treasury Direction and the Coronavirus Job Retention Scheme||Daniel Dyal||17 April 2020|