Listing not floating?

Having recently returned from a holiday in Mexico it is only now that I have found the time to blog again. I have put the links to my holiday videos at the bottom. They are mostly of mummy Grey Whales with their calves plus some Sea Lions (if you are interested – please excuse the commentary).

I attended the recent users meeting in Southampton and the news in relation to administration especially listing does not look good. The phone still appears to be going unanswered and the use of floating is set to increase. It is not surprising that the use of mediation is on the rise as the lack of resources is effectively leading to the privatisation of the Tribunal system by the backdoor.

My subject today is listing related and is an increasingly common problem. This happened in Croydon but my experience is that this happens in the Southern Region as well. My four day case that was due to start yesterday has been postponed (remember when this never happened to multiday cases). The circumstances were that the listing office contacted my 'oppo' on the morning before to inform him that they could only guarantee three days hearing time.

The date was set last July and the likelihood of getting another slot before the end of the summer is very small. A delay of perhaps another 6 months is on the cards due to the Tribunals inability to manage the four day slot. This means a further wait for justice/resolution.

In a case I had in Reading just after Christmas the parties were informed that although we had a 9 day slot in December 2011, this fixture could not be guaranteed and there was a chance that it might be moved. It beggars belief that the parties have to wait this long and risk not getting on. I could go on about the 6 day case I had in Southampton in September of last year which was finally heard last week.

The point is the situation is getting worse and no matter what representations the users make the need for the Tribunals to meet their targets appears to take precedence over justice for individuals. This is the problem of having a macro approach to the issues. It makes little difference to the party whose case is delayed a further 6 months whether or not the Tribunal met its target for that quarter; he or she just wanted to get their case heard within a reasonable time!

Peter D

http://www.youtube.com/watch?v=WvGx9LSnB9o&feature=BF&list=ULZpCtt8gYpPQ&index=4

Administrative Inefficiency

I was very busy last month spending a lot of time both in the Tribunal and coping with the fall out caused by Tribunal administration. It is about time that something was done about the present state of the administration.

I suppose it all started a number of months ago when the Tribunal would not accept the word of my instructing solicitor when he said that one of our key witnesses was not available. In the end it took a last minute begging application draft by me to get the matter adjourned.

Then a Tribunal decided to list a matter on dates when our main witness was away (we had completed the listing matrix and sent it off months before). Despite repeated requests for an adjournment it was only given on the first day of a 4 day hearing.

Next I had a 3 day case with witnesses having booked accommodation and arranged travel up to Manchester being postponed at 3 pm on the Friday before the hearing. No judge was available.

I have had repeated complaints from solicitors that correspondence is not being answered promptly or at all and some cases our simply dropping off the radar with no hearing date or directions being issued.

In short the system appears to be breaking under the increasing workload and we can expect little in the way of improvement in 2010. These failures are now impacting on the advice I give my clients. When the client can see the incompetence of the administrative staff it does not fill them with much confidence and this added to the costs of undertaking litigation means that settlement becomes the overriding objective for most employers.

Whatever happened to the overriding objective of the Tribunal?

Peter D

Listing?

I have been caught up in another listing issue this time closer to home in Reading.

In this particular case the Respondent had requested a PHR to deal with the merits of what was on the papers a weak claim. This application was refused and then without recourse to the parties the matter was simply listed for two days with standard directions. This was on 16th April 2009.

Those instructing me asked for a postponement and gave dates to avoid. The Claimant did not bother to reply to the application. The Tribunal took the best part of 3 weeks to deal with the application; by which time the trial date was about a week away. The postponement was denied. Those instructing me had to make a further urgent application and the case was eventually vacated and a PHR listed.

As I understand the situation the listing of a matter is important for Tribunals statistics so clearly the earlier the listing the better the statistics. I can accept this but, and it is a big but, this is meant to be a service for the litigants. When a case is listed without recourse to either party’s availability, it should be the Tribunals practice to vacate the dates if asked to do so long as alternative dates are provided. It should be enough for a party to write in and say the dates are not convenient so long as the other party is either in agreement or is silent. This is what a service is about.

More importantly it should not take the Tribunal 3 weeks to tell you that your application for a postponement has been rejected. The idea that a simple application for a postponement should take more than a couple of working days to deal with is inexplicable.

I make a simple heartfelt plea from a Tribunal user: Please remember that at the end of the day the people using the Tribunal are your customers, please treat them as such.

Peter D

Is this your case madam?

Local practitioners may have noticed that our tribunal in Southampton has for some time now been pinning down Claimants and Respondents as to exactly what their case is at PHRs. This serves a very useful function as it concentrates the parties minds on exactly what is required in the way of discovery and witness evidence. It also helps parties to evaluate their respective positions which inevitably leads to more settlement and less cost for both sides.

My own experience is that if you don’t raise it at the PHR then you will face an uphill struggle raising it at the final hearing.

Well you knew that Croydon was going to be mentioned again. I am in the middle of a case at the moment the details of which I will not bore you with. Anyway on the first day of the hearing the Judge asked the Claimant to identify what actions/inactions she alleged amounted to a breach of her contract. Her Claim Form read like a witness statement covering numerous possible breaches over a 3 year period. This lead to her Counsel producing a two page document headed particulars. The particulars failed to mention one of the last straws, a matter incidentally that featured in her resignation letter.

So we heard the Claimant’s evidence and went off for our Christmas holidays. On the morning of the resumed hearing Counsel for the Claimant indicated that a mistake had been made and this matter should have been included in the particulars. I of course said that it was a bit late in the day etc.

The Judge hearing the matter gave a preliminary view that she would allow the matter to be added to the particulars and indicated that the addition would go to creditability. In short having asked the Claimant what her case was on day one she was intending to allow the Claimant to add to it after her evidence had been completed.

The problem is that the Judge was probably right as the particulars were not the pleaded case and the original last straw was included along with the kitchen sink in the original Claim Form. So this was not an amendment it was a clarification of her case or perhaps a withdrawal of a concession that her case was as per the particulars. I am presently working on an estoppel/abuse of process argument, although I do not hold out much hope.

In future I will ensure that whenever someone says that is my case I get a clear undertaking that all other matters are withdrawn or are simply background. The Tribunal in Southampton do this whilst Croydon don’t. So when in Croydon ensure that when your opponent clarifies the case you make a good note and ask the Judge to make the necessary ruling.

As a post script I thought you would like to know that Croydon are still allocating inadequate time for cases to be heard. In another case that I heard about recently both sides had told the Tribunal that 3 days was too little to hear a case with 14 witnesses. Guess what the case was listed for 3 days anyway and went part heard for another 5 days.

Happy days........

Peter D