Last month I reported about the punitive approach being taken by judges to failure to comply with directions, as well demonstrated by the “plebgate” case. Andrew Mitchell, former Chief Whip, was restricted to recovering only his court fees because his lawyers had failed to submit a costs schedule on time. We now know that the Police Federation has apologised for their “politics of personal attack” (an interesting phrase) which had to happen after their key witness failed to substantiate his allegations (that’s a generous assessment). Why is this relevant for employment law? The answer is that the rules that govern employment tribunal claims have been, for some years, subject to the so-called overriding objective. Judges appear to have got carried away with the power conferred on them by a sub-paragraph (1.4(g)) “fixing timetables or otherwise controlling the progress of the case”. On the back of this apparently harmless and potentially beneficial objective Lord Jackson published a report which is overtly political in terms of access to justice and has been seized on, particularly by London based appellate judges who, frankly have, based on their recent performances, played a game which undermines the true purpose of appeals.
Is it the fault of claimants and respondents that their lawyers have been unable to comply with strict deadlines? Might that be because they’re not properly funded? Might that be because employers (and employees) can’t afford to pay their lawyers to provide proper representation?
The latest celebrity (and legal) news (courtesy of popbitch.com) is that another case concerning Katie Price has been kicked out because of a failure to exchange witness statements on time. So, a case fails not on its merits but because a particular deadline hasn’t been met. Don’t get me wrong – I’m not saying that there should not be penalties, such as forfeiting costs for the procedural hearing but is a proportionate response the loss of the case?
I have participated in hearings in which judges have said that “the remedy lies elsewhere”, i.e. that the claimant or respondent should sue their lawyer. Well done, and you can now go and have a round of golf! Yes, “people” (whether or not represented by their lawyers) should comply with deadlines but there are often good reasons why they cannot do so, such as the failure of the other party to comply with a prior deadline. Should you lose your case because of that? Believe me, that is happening now!
Have you ever made a mistake? If you’re a lawyer the current approach is that there is no excuse. Were that not enough, the denial of access to justice means that there are many more “litigants in person” (i.e. parties without representation). Are they let off these procedural irregularities? Of course they are.
It’s a disgrace and it’s not, in any sense, balanced access to justice.
Costs Masters (yes, they really are called that) have cowered to the current and nastily insidious creeping denial of access to justice which this trend is encouraging. Thankfully, judges at the “lower levels” (often barristers who have seen the other side of the story) are challenging this nonsense. I have been asked repeatedly to be a judge. This type of behaviour demonstrates why I have no intention of participating in this farrago!