On the first day of the Tribunal hearing, 2 out of 3 of the respondent's witnesses were allowed to read out their witness statements. For reasons of time saving, the Employment Judge asked if both parties were willing for the witness statements of the 3rd witness of the respondent and that of the claimant, who was a litigant in person, to be taken as read. Both parties agreed and on the second day, the witness statements were not read out. The claimant complained that she did not properly understand what was proposed, and although she understood that the Tribunal would read her witness statement overnight, she believed that she would be able to read it out herself at the hearing the following day.  In this appeal arguments put forward by Counsel for the claimant included: 1) in the interests of justice it was important that the claimant felt that she had had her say; 2) the Judge should have made it absolutely clear to the claimant as a litigant in person what the proposal meant; and 3) the claimant was being treated differently from the respondent in that 2 of their 3 witnesses had read their witness statements in full.

The EAT rejected these arguments. The phrase 'if the parties are in agreement' made it clear that their consent was invited and the fact that the claimant was recorded as having said in terms that she had no objection showed that she understood that she was being given the opportunity to object. If a Tribunal has, making all proper allowances for the position of a litigant in person, clearly posed a question and received an answer, it is not unfair to proceed on the basis of that answer, even if it may subsequently turn out that, through inattention or some other human failing, the question was not properly understood. The EAT concluded by discussing situations when witness statements need and need not be read aloud.

________________________

Appeal No. UKEAT/0127/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 November 2010

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

MR D BLEIMAN

MR I EZEKIEL

MS K MEHTA (APPELLANT)

CHILD SUPPORT AGENCY (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR ADAM OHRINGER (of Counsel)
Bar Pro Bono Unit

For Respondent
MS VICTORIA WAKEFIELD (of Counsel)

Instructed by:
Office of the Solicitor –  Department for Works & Pensions
5th Floor, 1-11 John Adam Street
London
WC2N 6HT

PRACTICE AND PROCEDURE – Procedural irregularity

Tribunal entitled to take Claimant's witness statement as read, notwithstanding that two of the Respondent's witnesses had been permitted to read their statements out loud, in circumstances where the Judge had explained that course to the Claimant and obtained her consent.

Observations on when witnesses statements need and need not be read aloud.

1. This is an appeal by the Claimant against the dismissal by an Employment Tribunal sitting at London South, chaired by Employment Judge Spencer, of her claims of unfair dismissal and for sums due. The appeal is concerned entirely with the fairness of the procedure followed by the Tribunal at the hearing, and in those circumstances we need say nothing more about the substance of the claim.

1. In the usual way where a problem about the fairness of the procedure has been raised, statements about the sequence of events have been obtained from the parties and the members of the Tribunal. We also have copies of notes taken by the Judge and the members and by the Respondent's counsel, Ms Wakefield.

1. Although the Claimant's original accounts of what happened at the hearing differ substantially from those of the Respondent and the Tribunal, in most, though not quite all, respects there is now no dispute as to the sequence of events and we can summarise it as follows.

1. The case was listed for two days. The Claimant was unrepresented. The Respondent was represented, as we have said, by Ms Victoria Wakefield. The Respondent went first. On the first day two of its witnesses gave evidence. They were permitted to read their witness statements out loud and were asked some questions by Ms Wakefield by way of clarification and amplification. They were then cross-examined at some length by the Claimant. The Employment Judge also asked some questions to cover ground missed by the Claimant.

1. At the end of the first day there was a third witness for the Respondent, Mr Baker, whose evidence had not yet been reached, and the Claimant herself was of course still to give evidence. Against that background, the Respondent's solicitor's note records the following exchange:

"C [Chairman]: Tomorrow from [Mr Baker] and [Claimant]. If parties are agreeable we could read the WS's overnight.

Timing.

K [Claimant]: Have no objection."

That is plainly an abbreviated version of what was actually said. The Judge in her own statement says:

"On the second day the statements (the Claimant and Mr Baker) were taken as read as we were concerned about time, the Tribunal reading both statements to themselves. This was explained to the parties and no objection was raised."

1. It is clear from those materials taken together that the Judge - subject to a point to which we will return - did indeed propose that the remaining witness statements should be taken as read; and that the Claimant agreed to that course. The Claimant says in her affidavit that she did not properly understand what was proposed. Specifically, she says that, though she understood that the Tribunal would read her witness statement overnight, she believed that she would nevertheless herself be able to read it out in the hearing the following day.

1. The next day the course proposed by the Judge was followed. Mr Baker's witness statement was taken as read and some questions were asked in amplification by Ms Wakefield. He was then cross-examined until about 11:45. (We should mention at this point that a dispute emerged before us as to whether Mr Baker's witness statement was indeed taken as read; we return to this later.) The Claimant then went into the witness box. Her statement too was not read out. She gave oral evidence for the rest of the morning in response, as we understand it, to questions from Ms Wakefield and the Tribunal, and into the afternoon. Ms Wakefield then made closing submissions for the Respondent, followed by closing submissions by the Claimant. The Tribunal rose and returned after a while and gave its decision with brief reasons.

1. The Claimant in her original Notice of Appeal made some points about the substance of the decision and the merits of her claim; but those were dismissed under the rule 3 procedure and are not before us. She also made various points about the conduct of the hearing. These were slightly diffuse and unclear, but as subsequently developed they included allegations not only that she was not allowed to "go through my written statement" but also that she was "not given an opportunity to make closing submissions to the Employment Tribunal": those quotes are from her affidavit sworn on 22 April 2010, but the same points had been made earlier.

1. It was the allegation about being denied the opportunity to make closing submissions which persuaded HHJ Richardson at a hearing under rule 3 (10) of the Employment Appeal Tribunal Rules 1993 (as amended) to activate the procedure under paragraph 11 of the Practice Direction. Once the responses under that procedure were available there was a preliminary hearing before a Tribunal chaired by Slade J. The Claimant was, for the first time, represented by counsel, Mr Adam Ohringer, appearing under the ELAAS scheme. It was clear from the materials now available that most of the Claimant's complaints about the procedure followed at the hearing were unsustainable. In particular, her sworn statement that she had not been allowed to make a closing submission was demonstrably wrong. However, the Tribunal was persuaded that it was arguably unfair that the Claimant should not have been permitted to read her witness statement, and Mr Ohringer was permitted to put in an Amended Notice of Appeal limited to that point. That reads:

"The Tribunal erred in law and/or exercised its case management powers perversely in that it did not hear the Appellant read aloud her witness statement while it had allowed three of the Respondents, four witnesses to read out their statements."

1. The reference in the Amended Notice of Appeal to four witnesses, three of whom had read out their statements, was clearly an error, based no doubt on inaccurate instructions, but it does not affect the substance of the point being made. But we should now briefly return to the point mentioned earlier. Mr Ohringer told us today that his instructions were that in fact Mr Baker too had been allowed to read his witness statement aloud. Those instructions are contrary to the Amended Notice of Appeal and to the materials lodged pursuant to the Practice Direction, but in any event in the course of the hearing they were demonstrated conclusively to be wrong by the notes of Ms Wakefield's instructing solicitor, which were produced to us. This episode is of some significance as an indication of the unreliability of the Claimant's recollection of events.

1. Mr Ohringer, who we should say appeared pro bono, has in his excellent submissions on behalf of the Claimant submitted that it was important both as a matter of substance and as a matter of the perception of fairness that the Claimant's witness statement should have been read aloud in the course of the hearing. It was important as a matter of substance because the Tribunal would have the opportunity, if that were done, to ask for explanation or amplification at points where the witness statement was unclear. In that regard he pointed out that the witness statement was home-made and that the Tribunal would certainly have benefited from a degree of elucidation. He also pointed out that the Claimant herself had at one or two places in the statement said that she wished to elaborate a particular point at the hearing. So far as the perception of fairness was concerned, Mr Ohringer submitted that it was important in the interests of justice for claimants to feel that they had had their say, and that was not sufficiently achieved simply by being submitted to questioning, whether from the Tribunal or the opposing party, or by being given the opportunity to make closing submissions. Evidence in chief was an important opportunity for a party to put his or her case as a complete narrative. He also made the point emphasised in the Amended Grounds of Appeal that the Claimant was being treated differently from the Respondent in that two of their three witnesses read their witness statements out in full.

1. On the face of it there is a short and complete answer to the Appellant's case, namely that, whatever she may now say about the course taken by the Tribunal, the Claimant consented to it at the time. Mr Ohringer, however, refers to the Claimant's evidence that she did not understand what was being proposed, and he says that there was a special responsibility on the Employment Judge as chairman of the Tribunal, dealing as she was with a litigant in person, both to ensure that the course proposed was properly understood and that the Claimant understood that she had a genuine choice and could say no if she wanted.

1. We agree that it was the Judge's responsibility to take care to see that the Claimant had a free and informed choice in the way that Mr Ohringer suggests. We are not however satisfied that she did not discharge that responsibility. We have to reach a view on the basis of the material before us: both parties were agreed that it would not be appropriate to seek further evidence, and in particular that it was unnecessary for the Claimant to be cross-examined. That material does not constitute a verbatim record and it will never be possible to capture exactly what was said, or the nuances of how the position was explained. It is clear, however, that the Judge expressed herself in terms of choice. The phrase "if the parties are in agreement" makes it clear that their consent was invited, and the fact that the Claimant is recorded as having said in terms that she had no objection shows that she understood that she was being given the opportunity to object rather than the Judge simply reciting a formula.

1. As to whether the proposal was understood, it is true that the notes that we have do not show that the Judge spelt out in terms that the consequence of the statements being read overnight was that they would not be read out at the hearing the next day. That is no doubt the logical corollary, because otherwise the problems of timing, which clearly were mentioned, would not be met; but we cannot rule out the possibility that the Judge took that corollary for granted and did not actually say, in terms that a litigant in person would understand, that she was proposing that the witness statements not be read out on the following day. However, that seems to us to be improbable. It is in our view much more likely that the Judge, who says that she explained the proposal, did in the course of that explanation say that the statements if read overnight would not be read out in court: that would be the natural thing to say. We appreciate that the Claimant says that she never understood that. We have to say that we cannot attach great weight to her evidence in that regard, since many of the other things which she says in her affidavit and elsewhere about the course of the hearing are demonstrably wrong. But even if it were true it would not by itself be a complete answer. If a Tribunal has, making all proper allowances for the position of a litigant in person, clearly posed a question and received an answer, it is not unfair to proceed on the basis of that answer, even if it may subsequently turn out that, through inattention or some other human failing, the question was not properly understood. At the end of the day, litigants in person, after all proper allowances have been made for their position, have to be treated as responsible for what they say and do in the course of proceedings. Mr Ohringer disavowed any contention that the Claimant was under a disability or was otherwise especially vulnerable.

1. We therefore find that the Claimant agreed to the course proposed and that it was not unfair for the Tribunal to have followed that course. That means that we do not need to decide whether the course in question would have been unfair if the Tribunal had imposed it without the Claimant's consent. We certainly see some force in Mr Ohringer's points that the Claimant could reasonably have felt – or, to put it in another way, that an informed observer might have believed - that she had not had the opportunity to clarify or elaborate points in her evidence as they appeared in the witness statement, and also that she had been treated differently from the Respondent. On the other hand we accept, as Ms Wakefield pointed out, that the Claimant had the opportunity to present her case orally very fully in other ways - through cross-examination of the Respondent's witnesses, through answers in her own cross-examination and to questions raised by the Tribunal, and in her closing submissions. We see no reason to doubt that the Tribunal tried to ensure that any parts of her evidence in her witness statement which were obscure, and (an important caveat) which were potentially relevant, were clarified and that her case on them brought out.

1. We prefer not, in all the circumstances, to make a definitive ruling on the hypothetical question of whether the procedure followed would, if imposed unilaterally, reasonably have been perceived as unfair, whatever the substance. We would however make the following brief points in case they are of value in other cases:

(1) We do not believe that it is a requirement of fairness in every case that the statements of every witness be read aloud in full, or indeed at all. In very many cases the process of reading aloud a document which the Tribunal can more efficiently and more effectively read out of court achieves nothing of value and is contrary to the overriding objective inasmuch as it wastes the time of the Tribunal and the parties. This will particularly, perhaps, be the case when the statements in question are lawyer-drafted and where they traverse masses of detailed material.

(2) On the other hand, there may in particular cases and circumstances be good reason for a witness statement, perhaps particularly of a claimant and even more particularly of an unrepresented claimant, being read aloud either in whole or in part. One such reason may be to enable the claimant to feel that he or she has had their say. Another might be where the statement is confused or inadequate, and it is important to take the witness through it so that it can be elucidated or (so far as proper) amplified. That process may also be valuable if the material is very technical. Another legitimate consideration is that it can be unfair to a witness to be exposed to hostile cross-examination without some opportunity to settle themselves by answering some friendly or at least neutral questions. None of these considerations, we emphasise, necessarily means that any part of a witness statement must be read aloud: they are simply matters to be taken into account.

(3) We emphasise that it need not be all or nothing. It may make sense for only part of a statement to be read aloud or for a witness to be "walked through" his or her statement by counsel, summarising parts and pausing for the key points to be read out and/or elucidated or amplified (e.g. to deal with queries raised at an earlier stage in the hearing). Sometimes where a lawyer drafted witness statement covers a factual episode of particular importance, a tribunal may wish to hear the witness give the evidence of that episode in chief in his or her own words. A different alternative, in a case where the statement of an unrepresented party has been taken as read, might be for the Judge to offer a short summary in order to reassure the party that his or her case has indeed been understood and to confirm that it has been understood correctly.

(4) Deciding what course to take in any particular case must be a matter for the tribunal in the exercise of its case management powers, whether exercised by an employment judge at a case management discussion or subsequently at the hearing. We understand that some guidance is given to employment judges, though we are not aware of its detailed terms; and we are also aware of variations in practice between different regions. We do not wish to be prescriptive, and different judges may legitimately have different preferences; but we would say that, if there are indeed regions in which the practice is that the witness statements of all witnesses are routinely read aloud whatever the circumstances, we think that that should be reconsidered.

(5) In exercising its choice in any particular case we would expect a tribunal to proceed so far as possible by agreement. In cases where lawyers are instructed on both sides this should not normally be difficult. In cases where one or both parties are unrepresented the tribunal should bear in mind what we have already said about the responsibility of an employment judge to ensure that an unrepresented party understands the course to which they are being asked to agree. If it proves necessary to make a direction about the way in which witness statements are handled, we would expect tribunals to be sensitive to concerns of the kind articulated by Mr Ohringer – and in particular, having regard to the circumstances of this case, to the perception that different parties are being treated differently. That does not mean that the witness statements of all witnesses on either side must always be treated in the same way; there may be good reasons for a difference in treatment. One point which was made in the course of argument was that in a case of some length as the case proceeds and the tribunal's understanding of the background develops, it may well be more helpful to it to read witness statements to itself even if it has not done so in the earlier stages. But if a course is taken for those or other reasons which involves the witnesses of one party being dealt with in a different way from the witnesses of another, that must be very fully explained and so far as possible any perception of unfairness defused.

(6) It is of course a requirement that any hearing be in public. We have not heard submissions on whether it follows from that that any witness statement which is taken as read should be made available to members of the public attending the hearing. We understand that to be the practice in at least some regions, if not generally.