WRITING TO THE COURT UNILATERALLY (AGAIN) – PROCEDURAL FAIRNESS AND WHY JUDGES NEED THE PATIENCE OF A SAINT

I have no plans to expand this blog to cover issues relating to procedure in Employment Tribunals.  However there are certain passages of the judgment  of Mr Justice Kerr in Jones v The Secretary of State for Business Innovation & Skills (Practice and Procedure: Bias, misconduct and procedural irregularity) [2017] UKEAT 0238_16_2906 that are of general importance in relation to procedural fairness. Not least it highlights the dangers of writing to the court or tribunal unilaterally without copying in the other side.  Something that has already featured this week.

“…  unrepresented parties whose case seems weak may, it is well known, sometimes behave in a manner that would try the patience of a saint.  Employment Judges sometimes have to have the patience of a saint to do their job and are appointed because they are considered to have it, among other reasons.”

THE CASE

The claimant was appealing against a decision of the Employment Tribunal. Part of the grounds of the appeal related to unfair conduct.  The appeal was allowed.  Kerr J took the opportunity to make some observations in relation to procedural fairness.

“78.            This case provides the opportunity to give emphasis to the importance of procedural fairness.

79.            First, I do not read the judgment of Barling J in the Drysdale case – see in particular at paragraph 49 – as meaning that the question whether a trial is fair or unfair is a Wednesbury issue or a case management issue.  It is not.

80.            Secondly, unrepresented parties whose case seems weak may, it is well known, sometimes behave in a manner that would try the patience of a saint.  Employment Judges sometimes have to have the patience of a saint to do their job and are appointed because they are considered to have it, among other reasons.

81.            Third, in this jurisdiction as in many others, the “equal footing” aspect of the overriding objective means taking particular care to observe the duty referred to by Neuberger J in the Maltez case, to ensure a party is not procedurally prejudiced through absence of representation.  The duty is as important where the unrepresented party appears to have a weak case as where her case appears strong.  The apparent weakness of the party’s case is not, it goes without saying, a reason to treat that party with any disfavour in procedural matters.

82.            Fourth, communication from one party to the ET without copying the other party should almost never occur and requires specific justification in accordance with the Rules, as the Lord Judge LCJ said at paragraph 7 of his judgment in Mohamed v The Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2010] EWCA Civ 158:

“7. It is an elementary rule of the administration of justice that none of the parties to civil litigation may communicate with the court without simultaneously alerting the other parties to that fact. …”

Other than in the case of Rule 32, the ET Rules provide in Rule 92 to the same effect.  Unfortunately, there are cases where Rule 92 is not observed.

83.            The impropriety is particularly serious where the party communicating unilaterally with the Tribunal is represented while the other party is not.  Communications going the other way, from the Tribunal to one side and not the other, require specific justification and very careful thought indeed, especially when the party omitted from the communication is the unrepresented one.  There is a real risk of undermining confidence in the impartiality of Judges and the administration of justice if that principle is not scrupulously observed.

84.            Fifth, I recognise that the obligation to explain procedural matters to an unrepresented party is not always easy.  It includes, in particular, the tension – baffling to a non-lawyer – between conflicting propositions: (1) that a witness attending under compulsion may give evidence without having provided a written statement; (2) that the Court will normally not hear a witness who has not provided a prior written statement; and (3) that the Court may attach little weight, or such weight as it thinks fit, to a signed statement from an absent witness.  Those propositions can be difficult to reconcile for lawyers as well as non-lawyers and I am not surprised that the tension between them caused confusion in this case.

85.            Finally, Employment Judges responding to allegations of bias, which are frequently made and much less frequently justified, should avoid language which smacks of advocacy when responding.  To do so can lend credence to otherwise unjustified allegations.  In the present case, rhetorical flourishes using language such as “strikingly silent” and “inconvenient truth” were misplaced and regrettable.

86.            It would be useful if Employment Judges could consider observing a practice I have often myself observed, which is to introduce a hearing at which one party is represented but the other is not, by explaining to the unrepresented party that both the represented party and the Tribunal have a heavy responsibility to ensure that the unrepresented one will not in any way be prejudiced by lack of representation.

87.            The appeal is allowed and the case will be remitted for a retrial before a different Employment Judge.”