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When to write written submissions

Written submissions are a useful advocacy tool, but it is not always clear when they should be used.

This is an area where personal style and preference matter quite a lot. Both authors use written submissions a lot. Other advocates use them less. But, bearing that in mind, here are some guidelines:

When you have to…

The tribunal may order written submissions. In that case you will have to do them.

This is not as potentially onerous as it sounds. Such orders are unusual, and will generally only be made where the parties would have wanted to do written submissions anyway.

The situation is different on appeal. The procedural rules in the EAT and above require submissions in writing in all cases. Having said this, it would be a brave person who wanted to run an appeal case without a written skeleton anyway.

In complex cases…

Where a case contains complex issues of fact or law, written submissions are invaluable.

The longer and more complex a case, the more difficult it is to deal with it in oral submissions alone. A written document gives structure and detail. It also gives you a second bite at the cherry. The tribunal will take your written submissions back to their deliberations and may be persuaded long after the advocates have finished talking.

Written submissions also allow you to focus your oral submissions on the most important points. Big cases always have peripheral, but significant, points in them. These can often be dealt with by saying “I cover with this in my written submissions, unless the tribunal would like me to go into it now?”.

Where they help you…

Often, the exercise of writing down exactly what you want to say to the tribunal, in complete sentences, with relevant extracts from the law and evidence, is the best way of preparing yourself.

It is even, if you have time, worth considering doing the written submissions first. Once you know what you want to be able to say at the end of the case you will know what evidence your witnesses need to give; what cross-examination needs to be done; even what disclosure needs to be requested.

6 comments

  1. roberto cantos

    Thank you for your articles!!

    I am representing myself in a hearing and I have found really interesting and helpful this web.

    Keep it up.

  2. A Dyer

    I am assisting my brother at ET and have found all of your articles very useful. Thank you for helping out the normal people!

  3. k k

    i wish i had found ur site before. I’m representing my self and recently my hearing could not finish due to a time constraint. i was asked to provide a written final submission. is this a good ting? i poorly represented myself when interviewed on the witness stand.

    • Naomi

      We can’t give legal advice on specific cases by way of this blog.

      But speaking generally, it is quite common for the tribunal to ask for written submissions when there isn’t quite time to finish a case in the time allotted, but the evidence has all been heard. It’s a way of finishing the case without everyone coming back for an additional hearing day. Mostly it won’t in itself be especially good news or bad news for either side – it’s just a matter of timing.

  4. Bruce Nicholas

    BN
    I am conducting my own claim for age discrimination and I have found the Third Edition (2010) of this book very useful. I am drafting my witness statement as agreed at the CMD and would also like to make a written submission. However apart from your book I can find no other reference to this. It would be helpful to know if one can make a written submission covering the relevant issues well before the Hearing. Presumably the earlier the better?

  5. Naomi

    The tribunal will decide the case at or after the hearing, so there’s no particular benefit in giving them written submissions much in advance.

    Rule 14(5) of the 2013 rules says this:

    “If a party wishes to submit written representations for consideration at a hearing (other than a case management discussion) he shall present them to the Employment Tribunal Office not less than 7 days before the hearing and shall at the same time send a copy to all other parties.”

    So in theory, written submissions have to be sent to the tribunal and the other side at least 7 days before the hearing. But that rule (which was also in the 2004 rules) is almost universally ignored. The tribunal won’t read submissions before the hearing – its first sight of the file is likely to be on the morning of the hearing – and it almost certainly won’t refuse to consider written submissions presented at the hearing. After all – if it refuses written submissions, the likely result is that the party offering them will proceed to read them aloud. The rule is a pretty silly one, because a lot of the point of written submissions – especially in a long case – will be to pull together bits of the oral evidence and make arguments about what inferences should be drawn from them. You can’t do that until the oral evidence has been given at the hearing.

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