You must produce a list of issues

One of the current standard case management directions that tribunals send out is that, if both parties are professionally represented they should agree a list of issues one week out from the hearing.

This is a good idea, but it doesn’t go far enough.

A list of issues, I’ve come to believe, is vital in every case and should be produced at the earliest possible moment — ideally as soon as you have both the ET1 and ET3 (and updated as necessary after that).

What is a list of issues?

A list of issues is a list of all the questions that the tribunal will have to answer to resolve the case.

So, in a relatively simple wages case it might be:

1. Was the Claimant a worker engaged by the Respondent, or a self-employed contractor? [To bring an unauthorised deduction of wages claim, you must be a worker. So if the respondent denies this, the tribunal will have to settle it.]
2. What was the claimant’s agreed hourly wage from 1st January 2013? [The Claimant says that the Respondent agreed to a 2% pay rise from 1st January. The Respondent denies this. Again, the tribunal will have to decide who is right.]

The point is that, if the tribunal answers these questions, they will have resolved the whole of the case. As in many cases, there are a number of aspects of the claim which are agreed (for example, there is no dispute about how much the Claimant was actually paid from January).

A more complicated case will have a longer list of issues. You can see an example on a previous post.

Why is a list of issues important?

The reason that the tribunal wants an agreed list of issues is that it makes the hearing easier and more effective. A meeting is unlikely to be successful if the partipants don’t agree about why they’re there. Similarly, a hearing where the parties and tribunal don’t agree about the what the issues are will go awry.

That’s also good reason from the Claimant’s perspective — an effective and focused hearing is better than a ineffective and unfocused one.

But far more importantly, a good list of issues is vital to preparing and conducting your case.

A good list of issues is the map to how the tribunal is going to decide your case and what you need to convince them about. If you aren’t clear about that, it will be impossible to prepare your case. How will you know what evidence is relevant? What documents to request from the other side? What information to include in your witness statement? What questions to ask in cross-examination or what submissions to make?

Everything comes back to the list of issues, because, most of what you do during a tribunal case should be focused on convincing the tribunal to decide the relevant issues in your favour (the only exceptions being occasions when you have no choice, such as disclosing a relevant, but unhelpful, document to comply with disclosure).

Put like that, it sounds obvious. After all, addressing an irrelevant issue is pointless and you certainly don’t want the tribunal to decide an issue against you. But, in the heat of battle, it’s easy to get distracted and be drawn into irrelevant matters or to just overlook a vital point.

All of this means that, even if you can’t agree a list of issues with the other side, or its premature to try, you should produce one for yourself. Then use it as a guide.

If you’re an experienced advocate, you may not need to write the issues down. But I think it’s better to do so. A formal document requires a bit more thought and discipline. It will help make sure you’d don’t miss anything.

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