Sometimes you really have to complain to the tribunal about how the other side has behaved – in order to ask for costs, for instance, or to explain your inability to do something you are supposed to have done. But don’t be too trigger-happy, especially about minor things. There are a lot of pit-falls in litigation, and you may find yourself in need of the tribunal’s or the other side’s indulgence at some point. If you’ve thrown a hissy fit every time the respondent has done anything a little bit late, or vaguely careless or annoying, you’ll find them much less sympathetic when it’s you having difficulty complying with a deadline or getting your witnesses to the tribunal at the right time.

This is a particular instance, of course, of the general rule about only fighting the battles you actually need to fight in order to win the case.

Imagine an enemy posse rushing towards you. They are dressed in bizarre and elaborate costumes, including papier mache horns, cardboard armour and joke-shop Dracula fangs. Some are brandishing pillows in a threatening manner; others are armed to the teeth with a variety of soft fruit. One has a pointed stick. All are yelling abuse.

Faced with this threat, what do you do? Wrestle them for their cushions? Rugby tackle them, pin them down and try to de-fang them? Yell abuse back, but louder? Ambush them for their fruit and make a summer pudding? Or do you focus all your attention on the threat posed by the pointed stick?

The answer may be obvious – but it is surprising how willing parties to litigation are to be distracted into squabbles that have no chance of determining the outcome of the case.

From time to time issues unrelated to the litigation will affect the running of a case. Employment tribunals are particularly prone to this, since most stem from an employee losing their job, which tends to impact many areas of life.

If this happens, you will probably have to offer an explanation, either to support amending case management directions or to justify having failed to comply with them. When you are doing this it is important to explain what if going on and what problems it has caused. Simply saying “I’m having a personal crisis” or something similar will not be effective. The tribunal will want to know the nature and scope of your crisis.

This can be embarrassing and difficult. It is not nice to have to discuss your personal life with the tribunal, or with the respondent. But if you want the tribunal to take it into account, you must tell them what is going on.

This does not mean that you must, or should, share all the gory details. A brief, factual summary of the issue is likely to be the best approach.

People sometimes feel that any letter they write must fall within a recognised category, and must not venture outside that area. In other words, if they want to request disclosure and deliver some witness statements they feel they should write two different letters.

This is probably the fault of people who write books including examples of letters neatly divided up.

The basic idea is good. It is best to separate out issues and deal with one thing at a time. There is, however, no need to write two letters. Just use headings to split up the different subjects.

The exception to this general rule is letters about settling the case. Since these are without prejudice they cannot be shown to the tribunal. This can become complicated if you need to rely on the part about witness statements. To avoid this problem it is better to send two letters.

But you can put them in the same envelope.

When the tribunal grants an application or makes an order, make sure that you understand exactly what is being said. It is easy to look at the general thrust of the order and miss subtle, but important, details.

This is good advice generally, but it is particularly important when the tribunal is, at first glance, doing what you have asked. Do not assume that, because the tribunal has made the sort of order you wanted, that they have done so in the way you wanted. Make sure that you catch any modifications or conditions they have added.

One of the difficult things about running a tribunal case for the first time is the uncertainty about what needs to be done before the hearing. The first step – putting in your ET1 – is fairly obvious, but after that it is easy to get overwhelmed.

If the tribunal has made detailed case management orders, this makes things simpler. If you follow them, you should do most of what you need.

Otherwise, it is worth remembering that there are three main things you need to sort out before you reach the tribunal. This is a gross simplification, but it is worth bearing in mind if you are uncertain what to do next.

Documents

When the hearing starts you want to have an agreed bundle of documents, containing all the relevant evidence.

Normally, this means you need to do two things: discovering and bundling.

Discovery is the process of figuring out what documents you have; then asking the respondent for documents they have, and getting a tribunal order if necessary.

Bundling is the process of drawing up an index of the relevant documents (not the same thing as all the documents), putting them in chronological order and paginating them. Paginate is a fancy lawyer’s term for writing page numbers on them. Then you have to agree the bundle with the respondent.

Witness Statements

All of the people who are going to give evidence should have prepared a witness statement and these should be exchanged with the respondent.

Know what you are going to say

Basically, you need to be ready to do two things: cross-examine witnesses and make submissions.

What this will involve will vary from case to case. An experienced advocate, dealing with a simple case, might just jot a few points on a sheet of paper. On the other hand, in a complicated case, or if it will be your first time in a tribunal, you will want to do a lot more.

A good starting point is a list of issues the tribunal will need to decide. Once you have that, you can expand it into a list of things you want to ask each witness about and another list of areas you need to address in submissions.

Detailed lists of questions get a bad press in legal circles. The potential disadvantage is that they may turn you into a robot – asking one question after another in a monotone, paying no attention to what the witness says. But this can be avoided with a little care and attention.

The advantage of detailed lists of questions is that they make sure you do not miss anything and allow you to plan, in detail, the order and approach of your questions. For beginners, this is particularly valuable.

You should also consider written submissions. In complicated cases, these are almost vital. In a simple case, the tribunal will get much less advantage from them. But this does not mean they are not useful. By writing down, in full, what you want to say, you will make sure you have the issues, the evidence and your arguments thoroughly worked out.

Unfortunately, you will normally not be able to complete your written submissions before the hearing starts. This is because you will not know what evidence is going to come out during the hearing. The best approach is to leave gaps in your submissions, where this evidence can be slotted in later.

Litigants and new lawyers are often troubled by the vast number of different situations that arise in the process of litigation.

It is helpful to remember that, really, there are only a handful of different situations, just an infinite number of slight variations.

One of the most common is asking the tribunal to do or order something. This might be ordering a document be disclosed; a question answered; a hearing postponed or a witness ordered to attend. But all these situations follow a common pattern. What follows is a standard template for applying for almost anything.

Opening formalities

Start with the obvious. Write the tribunal’s address and the date, just as you would in any letter.

You will also need to include the case number and, if you work for an organisation, any internal reference of yours.

Then open with a salutation. “Dear Sir or Madam” is standard.

It is common to then title the document. This should contain the party names; the nature of the application and, if the application is urgent, the word urgent. For example:

URGENT: Smith v Jones – application to postpone

Do not say the application is urgent unless it is. Don’t start off on the wrong foot by fibbing.

Guidance for dealing with the application

In nine cases out of ten, this is a standard piece of rubric:

I would be grateful if you would put the following application before a Judge.

If there is something unusual about the way in which the application should be dealt with, this is the place to mention it. For example, if a particular Judge is dealing with the case, you should ask the application to go before him. Similarly, if you are putting the application in writing, but expect it to be dealt with at an upcoming hearing, it is sensible to say so.

Bear in mind, however, that you cannot control how the tribunal deals with your application. That is up to them. You can only make a request or suggestion.

If you have said your application is urgent this is the place to explain why.

What you are asking for

At this point, say what it is that you are asking the tribunal to do.

The tribunal’s authority

Then indicate why the tribunal is able to do what you ask.

This is often unnecessary. Orders for discovery, or to postpone, are so routine that no issue is likely to arise about the tribunal’s powers. But if your application is more unusual, it is sensible to make it clear where the tribunal’s power comes from.

Why the tribunal should do it

This is likely to be the longest section. Write down all the reasons that the tribunal should do what you ask.

This section will often also include a discussion of what legal test the tribunal should use to decide the application. For example, if you are making an application to amend the claim. You might set out the guidance in Selkent about when such applications should be granted. Then explain why you meet that test.

Closing formalities

The tribunal rules require that all applications explain how the order will “assist the tribunal or chairman in dealing with the proceedings efficiently and fairly”. This should have been covered in your explanation for why the tribunal should do what you want. But it is conventional to state it explicity by writing something like:

For the reasons set out above, [this order] will assist the tribunal in dealing with the case efficiently and fairly.

The rules also require that you set out the otherside’s right to respond to the application:

This letter is copied to the respondent. The Respondent should not that if it objects to the application, it must write to the tribunal within seven days of receiving this letter, or before the date of the hearing (whichever date is the earlier) explaining the reasons for its objection , and should copy that letter to me. Rule 11 of the Procedural Rules has been complied with in relation to this application.

Note that there is an exception to this rule. If you are applying for a witness order, you do not have to inform the other side (although you can if you want).

Finally, sign the letter and post / fax / email it to the tribunal (and the respondent).

Oral applications

Applications at a hearing follow a very similar pattern. Say what you want and why the tribunal should agree.

In most cases the tribunal will at some point send out a case management order. In a straightforward case, they will probably do this on their own initiative once the ET3 has been received. In a more complicated case, they will list a case management discussion to discuss what directions are needed.

Typically, the case management will say when the parties should disclose to each other the relevant documents in their possession, who should be responsible for compiling the hearing bundle, when witness statements should be exchanged. If the ET1 is thought not to contain adequate detail, it may require the claimant to give further particulars; if so, the respondent will be asked to give further particulars of their response in reply. If there is a need for medical or other expert evidence, it will set out the arrangements for that.

What do you do with a case management order?

Comply with it.

The first thing to do when you get a case management order is to highlight all the dates by which anything is to be done, and put all of them in your diary. That’s all of them – not just the dates by which you have to do something, but the dates by which the other side has to do something too.

If the respondent falls asleep and misses one of their deadlines, their lateness can be viewed in two ways: either as an excuse to take a nap yourself; or as an opportunity to take up a position on the moral high ground. Choose the moral high ground: it’s a good place to be.

Point out to the other side (politely, but at once – this is why it is good to have their dates in your diary as well as your own) that they are late. Make a proposal for an adjusted timetable, if their lateness really means that you will need more time for your next step – but if possible, try to get straight back on track, even if that means that you have to work fast. If the respondent’s slumber continues undisturbed, keep chasing them. This is about the only situation in which multiple letters making the same point are any use: a series of polite but gradually escalating reminders will stand you in good stead when it comes to your application to have the respondent struck out, or ordered to pay your costs:

The gist of these chasers would go something like this:

letter 1

“you’ve missed your deadline for doing X – when are you going to be able to do it?”

letter 2

“your failure to do X is causing us all kinds of problems, please do it as soon as possible”

letter 3

“please do X, you’re now very late and if you don’t do it the hearing will be chaos and the tribunal will get cross”

letter 4

“if you don’t do X very soon indeed we will apply to have you struck out”

At the same time, comply with all your obligations obligation as best you can anyway – even if they have made it difficult for you. You may even have to take on some of their jobs yourself, if for example they have been given the task of compiling the bundle but are hopelessly late with it.

Above all, remember that it is your case: ultimately it is for you to make sure, so far as it is in your power to do so, that by the time the hearing date arrives, the case is ready to be heard. The best possible outcome for you if the respondent has fallen fast asleep is that they get their response struck out so that they are not allowed to take part in the hearing. That will make your life much easier – but you will still have to prove your case, so you will need a witness statement, a bundle of documents and a schedule of loss.

Sometimes another party in a case will make an application about something in which you have no stake or interest.

This is most common in cases with many different parties. Often a disclosure debate between the first claimant and the second respondent will be irrelevant to the third claimant.

In this situation it is sensible, if you are copied into the correspondence, to let everyone know you have no comment to make.

This avoids a situation in which the relevant parties have said their piece, but the tribunal is waiting for the 14 days given to respond before making a decision. Nothing terrible will happen if this occurs, but it is normally sensible to keep the litigation moving forward.

One of the types of order that the tribunal can make is an ‘unless order’. This is an order in the form: “Unless you do that, this will happen”.

For example, the tribunal may order “Unless the Claimant discloses all the documents on which he intends to rely by the 1st May, his claim will be struck out”.

Unless orders are usually made when a party has failed to comply with previous orders. They are a way of the tribunal saying “This is your last chance. Sort this out, or else.”

Your aim should be not to get into a situation where the tribunal makes this type of order. But if they do, it is vital that you comply with it – to the letter and on time.

This is even more important following the case of Chukwudebelu v Chubb Security. The Court of Appeal has ruled that an unless order takes effect automatically if not complied with.

In other words, if, in the example above, the claimant fails to disclose his documents by the 1st May, his claim will be considered struck out at that point. The tribunal will not have to make a second order to do so. This means there will be no opportunity for explanation, apologies or excuses. It will have happened.

If the worse happens and it really is impossible to comply with the unless order, it is vital that you make an application to vary it before it takes effect. This should be done in sufficient time that the tribunal can make a decision to change the order before the deadline for compliance.

Chukwudebelu v Chubb Security