“LITIGATION SHOULD BE SEEN AS A LAST RESORT, NOT A FIRST PORT OF CALL”: WORDS OF WISDOM FROM THE EAT

September 23, 2022 · by · in Civil Procedure

In Clark & Ors v Sainsburys Supermarkets Ltd & Anor (PRACTICE AND PROCEDURE) [2022] EAT 143 HHJ James Tayler made some observations in relation to the Early Conciliation scheme that exists in employment tribunals and construction of the rules.  He made some telling observations about the nature of litigation.

“Litigation is to be avoided where possible. Reasonable settlement of claims is to be encouraged. Many litigants come to appreciate this with the benefit of hindsight. Even those who are successful are often not as successful as they wanted, may be subject to criticism, and can find that the costs of the litigation in terms of time, money and emotion makes the victory Pyrrhic.”

THE CASE

The judge was considering an appeal about the rejection of parties whose names did not appear on an Early Conciliation Certificate.  The judge allowed the appeal.

EARLY OBSERVATIONS

It is the judge’s opening observations that are most telling.

  1. Litigation is to be avoided where possible. Reasonable settlement of claims is to be encouraged. Many litigants come to appreciate this with the benefit of hindsight. Even those who are successful are often not as successful as they wanted, may be subject to criticism, and can find that the costs of the litigation in terms of time, money and emotion makes the victory Pyrrhic. That said, litigation is sometimes unavoidable. Litigation may be necessary to establish individual rights and determine points of general legal principle. But litigation should be seen as a last resort, not a first port of call.
  2. For a number of years, provisions have been in place to try and persuade parties to resolve their differences without recourse to litigation. That is the fundamental purpose of EC. The substantive EC scheme adopts a relatively light touch. Individuals are required to do little more than contact ACAS and obtain an EC certificate. They are not required to engage in conciliation at all if they do not wish to do so. They are taken to water, but not forced to drink.