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

Courtroom dramas are filled with beautiful people who, at the slightest provocation, leap to their feet to shout “I object!”

Of course, real life in the employment tribunals is not like this. But a lot of litigation is similar. One side will want to do something, or do it in a particular way, while the other side tries to stop them.

A lot of these arguments are important. Many are not. But people (and lawyers are some of the worse) often fall into the trap of objecting to everything the other side tries to do.

This is foolish for several reasons. It makes litigation far more emotionally stressful than it needs to be – and it is already quite stressful enough. It is also tactically unwise. If every single possible point becomes an epic battle two things will happen. Firstly, the case will take longer than it needs to. There will be more hearings, more correspondence, more phone calls and more work. This is bad for everyone.

Even more damagingly, taking bad points will obscure your good points and damage your credibility.

Imagine that you are in a case management discussion where a tribunal has to deal with four issues. Three of these are unimportant. The final point is vital to your case.

Then imagine the following approach:

Opposing Counsel: Sir, on the first point we suggest this…

You: I object to that, because..

Later…

Opposing Counsel: On the second point, I submit that…

You: That’s completely wrong. I say….

Later…

Opposing Counsel: Well, I hope we can agree on the third point.

You: Certainly not. I submit…

Much later…

Opposing Counsel: Finally, Sir, we need to deal with disclosure. It really is disproportionate to ask my client to disclose the documents the Claimant asks for. The request is far too wide…

You: Some of those documents are vital to my case. They are directly relevant, because they deal with how other employees in the same circumstances were treated…

You might win the last point, but, you may well be starting from behind. If the issues were unimportant, or worse, ones where you had no real grounds to object, you will have turned the tribunal against you.

This is not unreasonable. Tribunals will judge you on what points you take and how you take them. They will do their best to take each point on its merits. But if they conclude that you will object to everything and will rarely have good reasons, they will stop taking you seriously.

Then consider the alternative approach:

Opposing Counsel: On the first point…

You: That’s fine.

Opposing Counsel: On the second point…

You: I have no objection to that.

Opposing Counsel: On the third point…

You: I can agree to that as well.

Opposing Counsel: Finally, on the fourth point…

You: I’m afraid I can’t agree here. Those documents are important and relevant. My case is based on disparity of treatment. Evidence of how other people in the same position were treated is vital to my case…

Now, far from being handicapped, you will be starting with an advantage. The initial reaction from the tribunal will almost certainly be “He didn’t object before. He wouldn’t be arguing here unless there was a good point to make”. They will listen to you with more sympathy and with greater attention. You are more likely to win the point.

This is not a magic wand. Letting three points go past doesn’t entitle you to win the fourth one. But if the first three points don’t matter, you are not giving anything up by conceding them. And the advantage on the final issue might be decisive.

This approach can, of course, be taken to far. Sometimes the respondent will be unreasonable and you will have to fight everything to prevent them running over you. Occasionally, even if both sides act well, the case is just one where there can’t be much common ground. In those cases there is nothing to do but fight.

The point is to fight the issues that matter. That is, to fight the ones that will determine who wins the case.

Employment cases are very important to the parties and a great deal depends on what the tribunal thinks.

The natural human instinct in such situations is to try to figure out what the tribunal is making of the case.

To some extent this is very sensible. It is valuable to have some idea of how the tribunal is approaching the case and what they think of it. This allows you to tailor your case to the tribunal and deal with areas of difficulty.

But it is all to easy to become slightly obsessed, to the detriment of your case. Many litigants and their advisors will start to read meaning into trivial behaviour. How quickly the tribunal replies to a letter, or precisely what words they use, can take on an overwhelming importance. The tribunal’s facial expressions, or when they break for lunch, is often subject to the most rigourous scrutiny.

The fact is that it is quite impossible to get any insight into what the tribunal is thinking by analysing such things to death. You will only cause yourself stress and worry. Be alert for indications from the tribunal to guide the presentation of your case, but don’t try to read their minds.

Case management discussions by telephone are increasingly common. Here are a few hints to get the most out of them:

• Be on time. The tribunal will be just as unhappy if you are five minutes late to a telephone call as they would be if you were five minutes late to any other hearing.
• Identify yourself. Unlike in a normal hearing the tribunal cannot deduce who you are by where you’re sitting. At the start of the hearing make sure you have explained who you are. If there is a chance of confusion later on, you should start your remarks by saying something like “Mr Rhodes for the claimant, Madam…”.
• Speak in turn. Interrupting needs to be done carefully in all hearings, but is particularly problematic during a telephone call. If people speak at the same time it quickly becomes difficult to follow who is talking and what they’re saying. Unless it is absolutely necessary, wait for your turn. If it is absolutely necessary, indicate that you need to speak by saying something like “Sir, if I could interrupt for one moment” and wait to be acknowledged.
• Talk to the other side beforehand. Unlike a normal CMD, you will not be able to speak to the respondent before the hearing or even have a whispered conversation during proceedings. Anything that needs to be discussed will need to have been discussed before the call starts.
• Prepare an agenda. Telephone CMDs are a very good way of running briskly through an agreed agenda of points, but a bad way of sorting out what the agenda should be. So have a list of points that need to be dealt with, and try to agree it with the respondent before the hearing. If possible, send that proposed agenda to the tribunal in advance. If this is not possible try to spend some time at the beginning of the call setting it out clearly.
• Make sure everyone has the relevant documents. One seriousness weakness of a telephone hearing is that there is no way of passing documents between the people involved. If the tribunal will need to see a document they must have it in advance. And everyone must be able to refer each other to the document they are talking about. This means an indexed and paginated bundle is vital.

A lot of the conversations and correspondence, during litigation is about providing other people with information and receiving information from them.

But you shouldn’t stop once you have provided or received the information. Go on to say what you want to do about it.

For example, say you are waiting for an expert report, and the expert contacts you to say he will be several weeks late providing it. You should certainly contact the other side and let them know. But you should consider whether the other case preparation will need to be changed, so that you can make proposals at the same time.

Similarly, say that one of your witnesses have been taken ill, shortly before the tribunal. Both the tribunal and the other side will need to know. But you also need to think how you want to handle the situation. Will the hearing need to be postponement? Or can the witness give evidence later in the hearing?

By setting out how you want to deal with a situation you maintain a degree of control over it. Either the tribunal or the respondent may disagree with your proposals, but once you have made them, you have taken the initiative. You are more likely to get what you want than if you wait for someone else to make a suggestion, then try to modify that.

You also avoid delay, as the tribunal’s response to a letter informing them of something will often be a slightly more formal version of “Okay, so what do you want to do about it?”