For the first time, the UK’s Civil Justice Council has recently issued some new draft guidance in relation to the conduct of cases where the Claimant is unrepresented. Though the guidance is not limited to the Employment Tribunals, it is probably there that it will have most relevance.
The draft contains advice on what Court/Tribunal staff can and cannot do for an unrepresented litigant, how professional representatives should treat them and how Mackenzie Friends (people assisting the Claimant not as lawyer or witness) should conduct themselves. Disappointingly, however, there is no guidance proposed for the unrepresented litigant himself, perhaps the person in all the process who is most in need of it.
The pointers to professional representatives include keeping to the timetables and other directions laid down by the Court/Tribunal, providing reasonable cooperation if the other party requires extra time for any given step, being polite and non-intimidatory, and being willing to speak to the Claimant before or after the hearing. There is no formal sanction attached to the guidance but it is not hard to see an Employment Tribunal using overt breaches of it by a professional representative as the basis for drawing adverse inferences and/or making a costs order. Similarly, the Mackenzie Friend is counselled to be both “courteous at all times to everyone else” and to “try to ensure that the way in which you assist does not cause any disruption or distract others. This is particularly important when someone else is speaking to the Judge or the Judge is speaking”. In other words, don’t interrupt, shout or wave your arms about. All very sensible stuff, but why does the guidance not tell the Claimant himself these things?
Every Tribunal practitioner knows that some professional representatives can be dreadful in a whole range of ways, and that some unrepresented claimants behave with remarkable poise and competence given the undoubted stresses of running their own case. Even so, would it be out of the question for a litigant in person also to be provided with a few basic rules in advance in the interests of the Tribunal’s overriding objective of disposing of cases swiftly and efficiently? How about these to start with:
- Like the Respondent, you have to disclose documents even if they do not help your case. Yes, really.
- You should take professional advice when encouraged to do so at key points, e.g. on jurisdictional issues or material settlement offers.
- You should not continue down any line of questioning which the Judge has already indicated is not taking you anywhere. If he stops taking notes of what you are saying, stop talking.
- Trial by ambush is for television only, so make the specifics of your case clear before you get to the hearing.
- Rumpole of the Bailey is not a good role model for Tribunal appearances. Nor is any character created by John Grisham.