Tagged: documents

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Using their documents / authorities against them

There is a tendency for advocates, consciously or subconsciously, to divide documents and authorities between ‘mine’ and ‘theirs’. ‘My’ documents are those that come from my client, or are helpful to him. ‘Their’ documents are those that come from the other side, or that are helpful to them.

This is natural enough, but it is a mistake.

In most cases it is impossible to divide all the documents in this way. At least some will contain material useful – or harmful – to both sides. If you try to divide them up, you risk missing the bits in ‘their’ documents that help you. You will also miss the bits of ‘your’ documents that help them. This will hamper your ability to present the case.

This point is also true of authorities. Often a party will cite an authority that actually helps the other side. Sometimes this is because the advocate has a duty to bring up a relevant case, even though it doesn’t help him. But it happens surprisingly often in other circumstances as well. Similarly, often an authority will be broadly helpful to you, but contain a limitation or warning that is not. If so, you need to spot it, so that you can deal with it.

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Spare copies of everything

If you can do so without spending a fortune on photocopying or doing injury to your back, it is sensible to arrive at the tribunal with more copies of all the relevant documents than you expect to need.

If a few copies of a schedule of loss or witness statement stay in your bag throughout the hearing, no harm is done. But running a case when some people don’t have all the documents is a serious pain. So it is best to err on the side of caution.

Also, documents do get damaged or lost – particularly over the course of a long hearing. If a tribunal member manages to spill water over his chronology, it is handy to be able to pass another copy up.

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Question: Why is a tribunal bundle not like a vinyl record?

Answer: It only has one side.

Hearing bundles, and for that matter, all tribunal documents, are normally printed single-sided.

There is an argument to be had over whether this is a good thing. Single-sided printing means that the blank side can be used for notes, and it is easier to ‘flag’ the bundle with post-its. On the other hand, it does produce bulky files of paper that are hard to manoeuvre. Then there is the environmental damage.

Regardless of your position in that debate, it is best to fall in with the general practice and give the tribunal what it is used to.

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It is very common, in correspondence or orally, to need to refer to other documents, be they statutes, case-law or evidence. You will very rarely write anything that does not talk about other documents.

It is well worth thinking about how you do this. Writing something like “Such and such was laid out in the company’s policy” can cause problems. Often the policy will be long, and there may even be more than one. Your reader will have to search through pages of documents to find what you are talking about. Even a short submission of a couple of pages, will probably refer to a dozen or so other documents at least, so these problems add up quickly.

It can also cause difficulties for you, since you may well be asked “Where exactly is that?”.

There are basically two ways of avoiding this problem:


Almost every document you will deal with in a case, will have a shorthand way of referring to it.

  • Documents in the bundle can be referred to by page numbers. Some documents also have paragraph numbers you can use.
  • Cases can be referred to by their case citation. You can use page numbers, paragraph numbers and marginal letters to give more precise references.
  • Witness statements can be referred to by paragraph numbers.
  • Statutes are referred to using the name of the statute and section numbers.

Using these references is simple. For example,

Mr White, at paragraph 6 of his statement, says that the bonus scheme was organised on a commission basis, bundle p78, para. 5.

Many people like to put references in italics. This can be useful.

Another useful technique, particularly when you will be referring often to the same source, is to indicate a default reference. For example, you might write at the beginning of a submission “Page references are to the bundle of documents, unless otherwise indicated”. This allows you to avoid writing ‘bundle’ repeatedly.


Sometimes, it will be useful to quote from documents, rather than just providing a reference. There is no absolute rule as to when a quote is better that a reference. It is mostly a matter of common sense. Your aim should be to make things easy for the reader. If a quote will help them, put one in.

In general, the more important a document and the more you want to say about it the more likely that a quote is sensible.

Bear in mind that quotations break up what you are writing. Too many quotes will make it difficult to follow what you are saying, since you will keep stopping to insert a quote. The aim is to achieve a happy medium between giving your reader useful information and making your points concisely.

A quotation should always have a reference attached, so that the reader can follow up the quote and see it in its original context.

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Recorded / special delivery

From time to time it is useful to send documents by recorded or special delivery.

There are normally two reasons to do this: dodgy opponents and important or urgent deliveries.

From time to time you will deal with opponents who appear to be either dishonest or simply totally disorganised. In these cases it is useful to have some independent confirmation that what you have sent has been received.

You will also deal with important or urgent deliveries. Sometimes you will have original documents that cannot be replaced, and sometimes something will need to arrive quickly. Special delivery, or even a courier, can be useful.

There is no reason, however, to send all letters in legal proceedings by recorded or special delivery. This is expensive, and normally has no real advantage. If you are need to be sure that something has arrived the cheapest and easiest solution is to give the receiver a quick call a couple of days after you send it.

Bear in mind that recorded / special delivery can actually slow post down. Items will not be delivered unless they are signed for. If the receiver is out, it can be some time before he arranges for re-delivery or collects the post. The risk of this happening will vary depending on who you are sending things to. A local authority is unlikely to be out when post arrives, but a small businessman may well be.

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Standard settlement agreements

Many organisations have standard templates for documents. In particular any organisation doing significant employment tribunal work will almost always have a standard agreement to use for settlement.

These are often useful. Most settlements are fairly standard – the claimant will withdraw her claim, the respondent will pay her some money. There is little point in reinventing the wheel over this for every case.

Having said that, every settlement is the unique conclusion of negotiation. Do not regard your own standard template as a straightjacket. And take with a large pinch of salt any suggestion that changing a standard term is impossible.

There are three common problems you may encounter:

The big firm problem

Documents reflect the personality of the organisation that produces them. A large respondent solicitor will not have a standard compromise agreement that slants in favour of the claimant. Many of the terms – relating to things like confidentiality, tax liability, etc. – will probably be written in a way that subtly benefits the employer. Sometimes the bias is less than subtle.

This means that it is almost always a good idea, when settlement negotiations reach the final stages, to get in first with your draft agreement. There is a significant advantage to arguing about adding things to your draft, rather than trying to remove things from theirs.

If you are negotiating over their draft, it is normally sensible to focus your attentions on a few key areas. Even where there is a general pro-employer bias is likely that it only has a significant effect in a couple of areas. For example, many standard agreements contain a tax indemnity. These normally state that, although the parties do not believe that tax will be payable on the award, if it is the employee will pay it. In many, many cases this will be entirely irrelevant, since it is absolutely clear that no tax will be due. If this is the case, the provision can be safely left in, since it will never come into effect. It will often be more sensible to do so in order to focus effort on altering a particularly arduous confidentiality clause.

Of course, there is no need to immediately reveal what provisions you might be willing to let by. A sensible negotiating technique can be to object to both the tax and confidentiality clauses, with the intention of trading one for the other.

The comfort blanket problem

The second problem is that standard documents tend to be approved at a relatively high level in an organisation. If you are negotiating with a fairly junior member of a firm, he may well be reluctant to depart from what more senior lawyers have set out as the appropriate way of settling a case. Standard documents also act as a comfort blanket and an insurance policy. Nobody is going to be criticised later for using the standard document. If they change it, particularly if the change involves a concession, they run the risk of criticism later. This is a particular problem if the individual concerned does not fully understand the standard document or the changes you are proposing.

This is little that can be done about this problem except to be aware of it and to try to engage with the issues if they arise. It should also be born in mind that “I can’t change this. It’s our standard document” is a useful first line of defence even when the opposing lawyer is quite happy to make changes if necessary to get a deal.

The cross-referencing problem

This is a purely technical issue. By the time you have finished negotiation you will often have taken out some clauses, while inserting others. This can easily damage any cross-referencing. If the agreement contains language like “In accordance with section 2(3)”, make sure that 2(3) is still the relevant section or the meaning of the agreement can easily be destroyed.

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New documents in the course of the hearing

Suppose that in the course of the hearing your client realises that an important answer given by one of the respondent’s witnesses can be proved wrong by a document that she has at home, but that she has not previously shown you or mentioned. She goes home and looks out the document and brings it the next day. When you look at it, you think it is extremely helpful to her case.

What do you do? Can you use this document?

The first thing to note is that if the document is relevant, it ought to have been disclosed to the other side before the hearing began and included in the bundle. It has to be disclosed now, so give a copy to the other side’s representative, with apologies for not having disclosed it earlier, at the first opportunity. Don’t make excuses at this point, but find out from your client why the document was overlooked previously so that you can be ready with your explanation for late disclosure in case the tribunal asks you.

The next thing is to decide how to deal with the new document in evidence. If the witness in question is still giving evidence, you should just be able to show him a copy of the document and ask him questions about it.

If the witness in question has finished his evidence, you may wish to have him recalled so that you can ask some further questions. Tread carefully at this point, though, and be ready for a tussle with the tribunal: the Chairman will not be keen to bring witnesses back after their evidence has apparently finished. You are on the moral low ground to the extent that the document should have been disclosed earlier. If there is any risk that recalling the witness will extend the hearing so that it needs an additional day, think hard about how important it is to be able to ask him about this document. Can another of the respondent’s witnesses sensibly be asked to confirm that, in light of this document, his evidence must have been mistaken? If the hearing is extended because you insist on recalling a witness to deal with a document that your side should really have disclosed earlier, you are likely to face a costs application.

Similar considerations apply if your client produces a document that she says proves she is right on an issue she was given a hard time about in cross-examination. You may want to recall her after the end of her evidence to explain the document, but avoid this if you can: you may be able to make your point about the document just as well, if the respondent’s evidence is yet to come, by cross-examining one of their witnesses about it.