Case management in the time of Covid-19
Jennifer Danvers
The Presidential Guidance issued on 18 March 2020 included encouragement toparties and judges to try to progress cases during these extraordinary times:
…[i]t maybe possible for the hearing to be converted to a case management preliminaryhearing, which will take place in private and could be done electronically, sothat progress may still be able to be made in the case. For example, it may bepossible at a case management hearing to further narrow the scope of what is indispute, promote understanding of the law that will be applied to the facts andexplore scope for resolving the dispute by alternative dispute resolution. Itis expected that parties will cooperate when a proposal of this type is madesince it is likely to be a step which will further the overriding objective.
In practice it seems that many of the preliminaryhearings that are taking place on what would have been the first day of a trialare simply being used to relist the final hearing. In some regions, cases are not being relisteduntil the summer of 2021.
In that context, how can we use preliminaryhearings or other means to move things forward?
The following analysis from Jennifer Danvers examines whether it is in our clients’ interests to progress cases,provides a few ideas on how to do so, as well as some general tips forconducting preliminary hearings by phone.
Is it in our clients’ interests to try to progresscases?
There may be cases in which kicking a matter intothe long grass or waiting until an in-person hearing can take place is whatyour client wants. For example, if youare representing a Claimant who wants to have their day in court (in person),or, if you are acting for a Respondent who thinks the prospect of a long delayis most likely to encourage a Claimant to settle.
However, in a great many cases, progressing to aresolution as quickly as possible will be what is in the best interests of yourclient. Reasons for resolving a case asquickly as possible include:
for bothsides:
ensuring the case is disposed of before memoriesfade;
reducing legal costs which mount-up the longer amatter runs for;
giving financial certainty of what will have to bepaid out or received in this time of significant uncertainty;
forRespondents:
mitigating the risk of key witnesses becomingunavailable or uncooperative due to future redundancies;
putting pressure on Claimants to come to the tabledue to an upcoming hearing or deadline, which is likely to be more effective asa spur for settlement than a sense that the case might drag on for a while;
where a Claimant is still out of work, settling orhaving the case heard before a Claimant’s past losses mount up further;
forClaimants:
receiving an award or settlement that can be used now,particularly in light of the current economic climate;
bringing an end to the stress of litigation andallowing the Claimant to move forward;
avoiding the risk of the Respondent becominginsolvent prior to the matter being disposed of.
Alternative dispute resolution – judicialassessment
Judicial mediations are going ahead and generallythe view from my colleagues is that the remote mediations are working well. Importantly,platforms like Teams can be used to create parallel “virtual” rooms to mirrorthe traditional set up during in person mediations. Online mediations could be a relativelylow-cost way of resolving the case or at least setting up a route map forsettlement even if the matter cannot be settled on the day.
An alternative, less widely used approach, could beseeking judicial assessment of the case. The Protocol for Judicial Assessment states that assessment will generally be offeredat the first case management hearing in the proceedings rather than later. In my view, there is nothing in the Protocolprecluding parties from asking for an assessment at a later stage. Generally employmentlawyers have been very cautious about using this tool. I am not aware of anyone who has takenadvantage of the option of a judicial assessment for obvious reasons; aninitial unfavourable impression by a judge may not be the one you want as itwill set the tone for any subsequent negotiations.
However, in other areas of law, non-binding earlyneutral evaluations of cases are common practice. For example, in family law, Financial DisputeResolution hearings are mandatory save for in exceptional circumstances. In those hearings, judges give an indicationof what they would order at a final hearing. The parties can then use the rest of the day to negotiate outside of thecourt room. My understanding fromfriends who are family barristers is that this process is generally found to behelpful by legal representatives and that in most cases it leads to settlementeither on the day or shortly afterwards. If the evaluation given by the judgeseems to be too harsh or generous, legal representatives can just advise theirclients as such and, if settlement is not reached, the matter proceeds to trial.
Any judicial assessment by an employment judge wouldnot be binding and the same judge would not be able to hear the case at trial. Theassessment is confidential and can only be referred to in without prejudicecorrespondence thereafter. This may mean that the concerns employment lawyershold about judicial assessment could, in some cases, be unwarranted.
Judicial assessment as a route to settling theclaim might be preferable to a very long wait until trial. Where that is the case, now is the time foremployment lawyers to start to embrace this tool and to broach this topic withtheir clients, the other side and the judge. If, for example, you have a case where even taking the other side’switness statements at their highest you are likely to win, judicial assessmentcould open a gateway to the other party withdrawing. Alternatively, your clientmay genuinely want the input of a judge, even if it is not entirely favourableon all points, if it might facilitate a settlement and avoid incurring furthercosts.
It is unlikely to be workable for parties to simplyrequest and be given an assessment on the spot during a preliminary hearing.
If you think judicial assessment could be helpful Iwould recommend: (a) either raising the topic with the other side ahead of the preliminaryhearing and agreeing how it might work or (b) raising it at the telephone preliminaryhearing and then seeking another closed preliminary hearing to take place byphone or video for the actual assessment. One of the things you will have to agree on is what the judge sees aheadof the assessment. It may be simplestfor them to be given the pleadings and list of issues; which is what would beavailable if the assessment were taking place at the first preliminary hearing. However, some cases could be assisted by thejudge being provided with a copy of both side’s witness statements and perhapsa small clip of key documents (say, no more than 10 pages each). I anticipate that judges would be unwillingto read much more than that at the risk of turning the assessment into amini-trial.
Deposit orders
Under Rule 56 of the ET Rules, preliminary hearingshave to be in public when the listing is to determine an application to strikeout or any ‘preliminary issue’ (defined in Rule 53(3) as ‘any substantiveissues which may determine liability (for example, an issue as to jurisdictionor as to whether an employee was dismissed)’. This means that until in-person hearings resume or the ETs find a way tomake remote hearings public, they are effectively precluded from hearing strikeout applications or determining preliminary matters, such as whether a Claimantwas disabled.
However, deposit order applications can be heard inprivate; they are not included in the list of matters set out in Rule 56 thatmust be heard in public.
Commonly, by the time the trial is approaching ithas become clear that aspects of a response or a claim are weak. For example, following disclosure it may beobvious that a Respondent’s asserted lack of knowledge defence is weak, or thatthe link between the pleaded treatment and a protected act is mere assertion.
These areas could be dealt with by way of a depositorder application, which may cause the other side to either concede the weakelements of their response or withdraw the weak elements of their claim. Thisallows the issues to be narrowed and the trial to be relisted more quicklybecause the hearing length is shorter. While applications for a deposit orderare more commonly made by Respondents there is nothing to stop Claimant lawyersusing the same tactic.
In a recent case of mine, the final hearing wasconverted to a closed preliminary hearing. We wrote to the other side and theET in advance of the preliminary hearing making an application for various depositorders. At the closed hearing theapplication was heard and we successfully obtained a deposit order on fiveaspects of the claim, which will dispose of the matter if the deposits are notpaid.
Narrowing the issues
Parties may be able to work together to narrow theissues, reduce the hearing length and get the case relisted more quickly.
Ways to do this include:
updatingthe list of issues to reflect points no longer in issue or that have beenrefined;
seekingadmissions or further information from the other side;
agreeing partsof the witness statements that are not in issue;
agreeingaspects of remedy where possible.
With the current pressure on listings, any stepsthat can be taken to reduce a hearing by even a day could make relistingeasier.
Considering if the case (or aspects of the case)can be dealt with remotely
You may be able to get your case relisted beforethe end of June if you can convince the Tribunal that it can go forwardremotely.
The biggest hurdle for ETs is the requirement forfinal hearings to be heard in public.
In the RCJ, the requirement for hearings to be inpublic is being dealt with by way of the daily cause list which includescontact details if a member of the press wishes to join a remote hearing.
If you have a relatively short one to two day finalhearing, particularly where both sides are represented, the following ideas couldbe suggested to the judge at the preliminary hearing:
relistingthe hearing for before the end of June to go ahead by video – if you haveaccess to appropriate secure software such as Microsoft Teams it may be helpfulto suggest that you set up the video-hearing;
arrangingthat prior to the hearing starting, the relevant material is sent directly tothe judge who is listed to hear the case to ensure they have the correctdocumentation – see if you can get the judge who is hearing the preliminaryhearing to reserve the matter to themselves if they seem willing to try aremote hearing;
offeringto provide a link to the hearing to the ET which can be placed on the ETwebsite for interested members of the public or press;
listing ashort telephone case management hearing the day before the final hearing toallow the parties to test the technology and talk about ground rules for theremote hearing.
Even if your case is listed to go ahead after June2020, I would suggest that, at least for hearings in 2020, some discussion ishad now about how the hearing could progress remotely if necessary.
Given the current uncertainty about when socialdistancing restrictions will be eased and the likely ongoing difficulties thatwill exist with specific witnesses, members of the judiciary or legalrepresentatives being in self-isolation or unwell, pre-empting the need for acase to go ahead remotely might avoid you losing a later listing.
Future-proofing
If your case cannot go ahead and is relisted for along time in the future, I would encourage parties to get signed witnessstatements ready for witnesses now in any event. Not only will this help in terms of memoriesfading, it also guards against the risk of it being difficult to contact or getco-operation from witnesses who may be made redundant in the future.
Tips for actually participating in preliminaryhearings right now
My colleagues and I have come across a number ofniggles when conducting preliminary hearings by telephone in the currentclimate.
My tips for making these hearings work well are asfollows:
Front-loadyour preparation – thelikelihood of you getting what you want from the preliminary hearing willlargely depend on steps taken ahead of it:
Do not just make applications in the course of the preliminaryhearing – send them through to the ET at least a week in advance where possible.
If you do not have any specific applications tomake, it may still be worth sending a short note to the ET, either byway of an agenda (if appropriate) or one page ‘list of issues to be dealt withat the preliminary hearing’, flagging up what you believe can usefully be doneat the preliminary hearing and how long it will take. This will allow the judge to be more preparedto deal with the matters you want to deal with. Certainly our experience atCloisters has been that judges tend to be well-read before the start of thepreliminary hearing.
If there are applications to be dealt with at the preliminaryhearing provide a short electronic bundle with the key documents in itat least a few days in advance of the hearing to make sure it gets through tothe judge. Label any PDFs clearly e.g. ‘E-bundle for PH on X date’ or‘Applications and responses to be considered at PH on X date’.
Beprepared to argue – ourexperience is that different ETs and individual judges are taking verydifferent approaches as to what they are willing to do over the phone. If your judge appears reluctant to do morethan relist your case, remind them of the Presidential Guidance about movingthings forward – you may need to persuade them of what can be done.
Gothrough arguments more carefully than you might normally in person. It isharder to gauge whether judges are with you or not when you cannot see them, soit is best to err on the side of fuller argument, letting them move you on ifnecessary, rather than skipping over steps in the point you are making. Without the aid of expression and gestures,the way you put your arguments is more important than ever so think about howto structure your points. Make them simple but compelling.
Be readyto send documents electronically during the preliminary hearing in case the judge has not received them. I wouldsuggest having an email ready to go with the relevant documents attached andyour opponent’s email address copied in so you can simply insert the judge’semail address if necessary.
Avoid afree for all. In thehearing, if the judge does not set down any ground rules about how to avoidpeople talking over one another and that then proves to be a problem, you maywish to make suggestions as to how to proceed. For example, you could explainthat you will wait for the judge to call on you when they wish to hear from youor say that you will indicate when you have finished making submissions toavoid the other side jumping in. Thiswill hopefully prompt the other participants to do the same – it may feel a bitlike saying ‘over and out’ at the end of submissions, but in my experience it allowshearings to go more smoothly.
Final thoughts
The 18 March 2020 Presidential Guidance ended asfollows:
…Ourfinal words are to encourage Tribunals, Employment Judges and all those whoseek to access justice through the Employment Tribunal system to approach theunprecedented circumstances we now face in a spirit of mutual cooperation tomaximise the number of hearings that are able to take place through thecreative use of all means available, which are compatible with the Rules and inparticular the overriding objective.
There are ways to move cases forward at the moment.This may be a time when employment lawyers can use tools that we have not usedmuch in the past, such as judicial assessment and video hearings, and new waysof working to ultimately make the resolution of employment litigation morestreamlined.
If you have any success with alternative approaches that you would be willing to share with other employment practitioners, please do feel free to get in touch at jjd@cloisters.com and I can update this blog with further ideas (anonymous or named as you would prefer).