Tribunal advocacysub nom Tombstone Ltd v Raja and Healys [2009] 1 WLR 1143, (2009) Times 4 February
9.30The techniques of good advocacy apply whatever the context. There are no rules or techniques that are unique to tribunals. However, there are some aspects that deserve emphasis in a tribunal context.
Variation
9.31The greatest difficulty in giving general advice about advocacy in tribunals is variation. There is variation from jurisdiction to jurisdiction. Representatives who appear in a particular jurisdiction will learn the approach taken. Others will have to enquire. There is also variation within a jurisdiction according to the preferences of the presiding judge and the nature and quality of the representation on each side. Again, experience and enquiry are the best guides of what to expect.
The tribunal’s expertise and preparation
9.32Two features should be common to all tribunals. First, the members of the tribunal should be knowledgeable of, and probably expert in, the subject matter. Second, the tribunal will have prepared the case by reading the papers and previewing the issues that arise from them.
1Preparation is an important factor in ensuring good quality decision-making: Transforming Justice with Knowledge, Lawrence W Sherman, High Sheriff of London’s Talk on 10 March 2014 at Fishmongers’ Hall. Representatives should assume that the tribunal is familiar with the law and the documents (evidence and submissions) in their presentation of the case.
Time
9.33Many, but not all, tribunals operate under tight time constraints. With time at a premium, representatives should prepare and present their cases accordingly. Time does not allow for the more elaborate development of a case that may be appropriate in proceedings that are conducted under less pressure.
9.34Representatives can assist tribunals in good time management by: presenting material to the tribunal in advance; doing so in a way that assists the tribunal; relying on the tribunal’s knowledge of the case and the law; and avoiding unnecessary repetition.
Preparation
9.35A representative must be fully prepared for a case. This involves three distinct but related aspects: marshalling the evidence and arguments in support of the client’s case; planning how to respond to the strongest case that the other party could present; and anticipating the concerns that the tribunal might have. In the nature of things, the representative will not need to use all, or even much, of what has been prepared. But it is better to be prepared than unable to respond at the hearing.
Planning the case
9.36The purpose of advocacy is to be achieve a particular outcome. In order to be effective, it is essential to identify the objective (outcome) required. This will dictate the content, which will in turn suggest a structure. It is then necessary to consider presentation.
Objectives
9.37In the most general sense, the objective will always be the same: to achieve the best outcome reasonably obtainable for the client. In order to be useful, this will have to find expression by reference to the issues in the particular case. It may be possible to identify the objectives at the outset. In practice, it is more likely that they will emerge by a reciprocal process with the content: the working out of the content for an objective will lead to the identification of further objectives that in turn will affect the content of the argument.
Content
9.38A tribunal is almost by definition knowledgeable of the case and of the law. A representative can assume, unless told otherwise, that the tribunal knows the law and has read the papers. The representative need not, and should not, set out the evidence that the tribunal already has in the papers. Formal proof of written evidence is not usually required. It is sufficient to refer to points that the representative wants to emphasise. Usually, the representative need not, and should not, expound the law; it is sufficient to highlight important points and or something that the tribunal may not be familiar with. Exceptionally, it may be appropriate to argue a novel or difficult point.
9.39No tribunal has a limitless amount of time to devote to a case. Representatives have to accept this and adjust their advocacy accordingly. They do so by focusing on the issues that are in dispute.
9.40Representatives must be realistic. A representative must put the case that the client wants, but all representatives have a duty to advise their clients realistically on what can be obtained. A good case for partial success can be lost in the exaggeration needed to seek more.
Structure
9.41It is unlikely that there will only be one structure appropriate to a case. It will, therefore, be a matter of choice. But structure there must be. A randomly assembled case is unlikely to be effective. If it is, it will be despite rather than because of the structure.
Oral presentation
9.42It is always appropriate to be polite. There is never any justification for rudeness and it will not be effective.
9.43Overblown oratory and high-flown rhetoric are not appropriate. It will not be effective and will be unnecessarily time consuming.
9.44A confrontational and aggressive style will not help. It will antagonise the tribunal to no purpose, take time and divert attention from the substance of an argument. An aggressive cross-examination style is not appropriate in many tribunals.
9.45A conversational style appropriate to a business meeting is best suited to most tribunals.
9.46A presentation that is crisp and clear will be appreciated.
9.47A co-operative approach with the tribunal and the other parties is the ideal. Representatives should co-operate with the tribunal by complying with any timetable for written submissions or documentary evidence and with the procedural directions of the tribunal at the hearing. These are there for a purpose: to make the proceedings as efficient as possible for all users of the tribunal. Representatives should co-operate with the other party by making appropriate concessions on the facts and the law. They should assist the tribunal to follow the case, for example by referring to relevant page numbers in the evidence. Ideally, they should provide written evidence and submissions in good time for the tribunal to read them before the hearing and preferably before the day of the hearing. This will allow the representative and the tribunal to make the best use of the time available.
Interruptions
9.48Representatives must expect interruptions. Judges question a representative in order to check they have understood the case, to test its accuracy, coherence and relevance, and to ensure that nothing is overlooked.
2Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 63. These interruptions are valuable as they give an indication of the factors that are troubling the judge about the case and allow the representative to deal with them.
9.49Most judges do not interrupt of the sake of it. They do not aim to be unpleasant or to prevent representatives from putting their arguments. If they do interrupt frequently, the representative should consider whether that reflects a problem with the case being presented rather than with the judge hearing the case.
9.50If a judge’s interruptions are inappropriate, the representative has three options.
9.51One option is to object on the ground that the judge is descending into the arena or preventing the advocate from presenting the case.
9.52If the judge has created the appearance of bias, another option is to ask the judge to stand down and transfer the case to another judge for decision.
9.53The third option is to appeal on the ground that the judge deprived the party of a fair hearing
3As happened in Jones v National Coal Board [1957] 2 QB 55. or was guilty of apparent bias. The courts have taken a realistic attitude to the difficulties in confronting a tribunal.
4See chapter 3. However, even after making appropriate allowances, there is a risk with this option, as the representative may have to explain why these concerns were not raised at the time. Representatives are not allowed to use such complaints as a convenient excuse to obtain a rehearing.
Supporting the work of the tribunal
9.54Representatives are not entitled to watch a tribunal fail to investigate a matter and then use that as a ground of appeal against the tribunal’s decision. They are under a duty to co-operate with the tribunal
5See chapter 3. and must draw these matters to its attention.
Written submissions
9.55In practice, tribunals that operate under particular time constraints are likely to welcome full written submissions provided in advance. The submission should present the party’s case clearly and succinctly. It should stand instead of oral presentation; it should not be read out. It will save time during the hearing, which can focus on taking evidence and discussing any matters that concern the tribunal.
9.56The basic rules for a written submission vary according to whether the focus is on the facts, as is typical of the First-tier Tribunal, or on the law, as is typical of the Upper Tribunal.
9.57A submission that focuses on the facts should follow these rules:
•identify the submission by reference to the case and party;
•use numbered paragraphs and headings;
•present the submission in a structured and orderly way;
•say at the beginning the outcome sought;
•say what is and is not in dispute;
•deal with the law only in so far as necessary. Usually a passing reference is the most that is needed, unless the interpretation is controversial or a particular provision is crucial;
•say what the evidence proves. There is no need to repeat the evidence. It may, though, be appropriate to quote a particularly supportive passage. If so, use quotation marks;
•deal with difficulties.
6Research as shown that admitting to difficulties before the other party draws attention to them reduces the impact that they have on the outcome: David Hardman, Judgment and Decision Making, British Psychological Society and Blackwell, 2009, p45. For example: the evidence may be incomplete or there may be conflicting evidence;
•guide the tribunal to the relevant pages in the papers.
9.58Here is a simple example of a written submission in a personal independence payment appeal, supporting an argument for an award of points for the activity of moving around:
Mrs Jones asks you to increase her score by adding 10 points for her mobility difficulties. She has severe osteoarthritis in her wrists and both knees – see the Consultant’s letter at page 53. She takes strong pain killers for this – see prescription list at page 48. Her pain severely limits her walking in distance and time – see her claim pack at pages 7–8. Her GP knows her well, confirms that her mobility is significantly restricted by pain, and reports difficulties using a stick or frame – see the report at page 43. The decision-maker’s findings are based on medical advice (pages 90–92) that is inconsistent with the opinion of the Consultant which is confirmed by x-ray.
This simple submission tells the tribunal what the claimant seeks and the evidence that supports it. It refers to the law only in passing by referring to the use of a stick. It explains why the conflicting evidence is not reliable. And it helps the tribunal by setting out the case clearly and succinctly with references to the relevant pages in the papers.
9.59A submission that focuses on the law should follow these rules:
•identify the submission by reference to the case and party;
•use numbered paragraphs and headings;
•present the submission in a structured and orderly way;
•say how the tribunal went wrong in law;
•say what outcome is sought. (For example: should the Upper Tribunal re-make the decision or remit the case for rehearing?);
•say what is and is not in dispute;
•deal with the law only in so far as necessary. In a straightforward case, this may be assumed. However, if the appeal raises an issue of interpretation, the law must be dealt with in detail. Make the submission as self-contained as possible;
•set out the relevant terms of the legislation;
•identify relevant authorities with their references. State the proposition for which they are cited. Refer to, and quote, any passages that are important. Limit citation to the most authoritative or the most pertinent;
•provide copies of the authorities if the tribunal will not have them to hand;
•deal with difficulties. For example: there may be a previous decision that supports the tribunal’s interpretation of the law;
•guide the tribunal to the relevant pages in the papers.
Skeleton arguments
9.60In some tribunals, skeleton arguments may be used. They are different from written submissions. They provide a framework for the presentation of oral argument rather than a substitute for it.
9.61The Court of Appeal commented on skeleton arguments in
Tombstone Ltd v Raja.
7[2009] 1 WLR 1143. The comments were made in the context of practice direction under CPR, but the points are of general application:
8[2009] 1 WLR 1143 at [122]–[128].We end this judgment with a criticism of the excessive length and complexity of Tombstone’s skeleton argument. It has 110 pages of text plus 64 pages of Appendices. Although its authors set out to assist the court, as well as the client, by a very thorough presentation of Tombstone’s case, it is sensible to set reasonable limits to its length.
Mr Onslow described it ‘as an extremely long document’ for a case that, while unusual, was not unduly complex. The appeal was from a judgment of modest length (27 pages). It was very hard, he said, to see what justified such voluminous arguments. Most of the legal issues have been settled by existing authority. No primary findings of fact are challenged on the appeal. He added that, from Healys’ perspective, this had added to the length of their skeleton argument (56 pages), which they had tried to keep as short as possible. It had also added considerably to the cost and length of the appeal.
The length of Tombstone’s skeleton did not assist the court. In fact, it tended to detract from Tombstone’s case, which was accurately and far more succinctly stated by Mr Onslow in his written and oral responses to it. His team adopted the technique of briefly stating the points taken by Tombstone and then concisely commenting on them.
Practitioners who ignore practice directions on skeleton arguments (see CPR 52PD paras 5.10 ‘Each point should be stated as concisely as the nature of the case allows’) and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions. The skeleton argument procedure was introduced to assist the court, as well as the parties, by improving preparations for, and the efficiency of, adversarial oral hearings, which remain central to this court’s public role.
We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.
Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the growth in written advocacy (written opening and closing submissions and ‘speaking notes’, as well as skeleton arguments) has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their oppon-ents and the court with written briefs. They are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing, reading and writing time. As has happened in this case, the opponent’s skeleton argument becomes longer and the judgment reflecting the lengthy written submissions tends to be longer than is really necessary to explain to the parties why they have won or lost an appeal.
The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them ‘in our own time’ after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court.
Attendance
9.62Research published in 1989 showed that representatives significantly increased a party’s chance of success.
9Hazel Genn and Yvette Genn, The Effectiveness of Representation in Tribunals. Research published in 2009 showed that representatives were more effective when they assisted parties before the hearing than when they attended.
10Michael Adler, ‘Tribunals Ain’t What They Used To Be’ (2009) March Adjust (the Administrative Justice and Tribunals Council newsletter).Representing non-contentious parties
9.63Representatives of non-contentious parties should adopt an approach that it consistent with the nature of that party’s involvement in the proceedings. This is discussed in chapter 1.