Appeal No. UKEATS/0004/13/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF
At
the Tribunal
On
20 March 2013
Before
THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MRS A HIBBERD
MR R PAGLIARI
GLASGOW CITY COUNCIL APPELLANT
FOX
CROSS CLAIMANTS & OTHERS RESPONDENTS
Transcript of Proceedings
JUDGMENT
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
1.
It is well established in case law, most recently in the case of O’Cathail
v Transport for London [2013] EWCA Civ 21 that; see paragraph 11:
“In the case of an appeal from a statutory discretion entrusted
to and exercised by the ET, the EAT can only set aside the ET’s decision on the
ground of an error of law such as when the ET goes wrong in principle in its
approach to the discretion or when it makes a decision which is so wrong that
no reasonable ET properly directing itself could have made it on the material
before it.”
2.
For reasons, delivered on 13 December 2012, a Tribunal at Glasgow chaired by Employment Judge Cape exercised its discretion to permit an amendment
which was sought by the Claimants before it and ordered consequential
disclosure. The challenge before us is made on the basis that in doing so the
Tribunal erred in principle such that within the scope of the law as we have
set out we should allow the appeal and reverse the decision or remit it.
The Context
3.
The case is on any view a substantial one. It is the second wave of
equal pay claims brought against Glasgow City Council by, amongst others,
Claimants represented by Fox Cross Solicitors. The issue, as part of those
proceedings before the Tribunal whose decision we are considering, was the
question of whether the Work, Pay and Benefits Review (WPBR) gave rise to
disparities in pay as part of the material which the Tribunal had several days
to consider. It had as a central point to ask whether the scheme which had
been adopted by Glasgow City Council was one of job evaluation so as to fit
within the margins of section 1(5) of the Equal Pay Act 1970 and
whether, if it did, the Council could appropriately rely upon it in order to
use it as a defence to equal value claims brought by those whom the scheme said
had been rated as in equivalent jobs.
4.
Summarising, we hope without losing sight of the complexity of the case,
the Claimants wished to contend as a central issue that the scheme adopted did
not properly evaluate jobs. Rather it used role profiles which were, in the
Claimants’ submission, of too generic and general a character to evaluate the
totality of the jobs which the individual workers did. The Council called
evidence from amongst others a Dr Watson who had designed the scheme. He had
not, however, allocated individual jobs within the scheme. The scheme
consisted of 14 job families, each job family itself comprising a number of
role profiles. These did not in themselves describe specific jobs. Rather,
each profile was said to be a generic description of the work of employees
whose work was judged to correspond to the role profile.
5.
In the course of cross-examination Mr Galbraith-Marten of counsel,
representing the Fox Cross Claimants, asked Dr Watson how he justified the
allocation of what were on the face of it very different jobs to the same role
profile. Thus he asked in effect how it came about that, for instance, the job
of a parking attendant could be allocated to the same role profile as a crèche
assistant. The assumption had been made, it might seem, that the title of the
job would be sufficient to indicate how widely different the jobs were, that
therefore the role profile was too generic to be of any real assistance in
evaluating the jobs and that, therefore, the scheme based upon them could not
possibly hope to fulfil the requirements of section 1(5), nor could it operate
as a defence under section 2A(ii)(a) to equal pay claims brought against the
Council.
6.
At this point, Mr Bowers of Queen’s Counsel who represented Glasgow City
Council objected. He made the undeniable point that without having more than a
label to describe the roles there was no proper basis on which Dr Watson could
be asked that question: it was widening the issues, it was going beyond what
had been agreed by the parties as the issues; it was seeking to make
comparisons outside a list of Claimants and comparators which had been
painstakingly drawn up over the course of several months between the parties
and which had been common currency at least at the end of a series of some
eight or nine case management discussions prior to the hearing with which we
are concerned.
7.
Mr Galbraith-Marten for his part asserted that he was fully entitled to
raise the issue since it arose out of the pleadings. The pleadings at the
amended Particulars of Claim, paragraph 22 and following set out the Claimants’
general case in respect of job families and role profiles. The question he was
asking came within the scope of those pleadings.
8.
The issues had been agreed between the parties, in a short issues list
of high generality (see paragraph 18 of the Tribunal decision) as including the
question whether the job evaluation scheme was valid as defined in section 1(5)
of the Equal Pay Act and, if so, whether the Respondents were entitled
to rely upon it for the purposes of section 2A(ii)(a). The issues were not
more precisely stated.
9.
Following an exchange between the Judge for the Tribunal and the
parties, the Tribunal indicated that it might be appropriate, if the
Respondents were to be asked to address the points and questions asked in
cross-examination, that the assertions which were being made by the Claimants
were set out in writing and that that should be way of amendment to their
application and particulars of claim.
10.
Without abandoning his primary position that this was not strictly
necessary, Mr Galbraith-Marten drafted what would be an amendment. It was that
amendment which the Tribunal focused on and permitted. It is that permission
that is now challenged. The amendment is set out at paragraph 9 of the
Tribunal decision. It mentions four different groups of jobs; Pupil Support Assistant
and Float 8 SVQ Assessor, both of which have been allocated to one role
profile; Child Development Officer and Driving Instructor allocated to another
role profile; Parking Attendant, Crèche Assistant to a third; Cleaner, Road
Worker, Road Sweeper and Gardener to a fourth.
11.
At the time this application was made the Fox Cross Claimants had all
but closed their case. As the Tribunal observed the application was made part
way through the hearing and more precisely part way through the Respondents’
case. One matter had been reserved for the Fox Cross Claimants but effectively
their case had closed. The Tribunal was thus considering an application to
amend made very late in the day. 20 days of hearing had gone past, it came after
a number of Case Management Discussions, and was in respect of a case first
brought in 2009 about a scheme introduced on 1 April 2008. The parties had
been professionally represented throughout. For some five months the Claimants
had had an Excel spreadsheet setting out details of jobs from which the details
of the jobs sought to be grouped together in the same job profile could be
ascertained. If there were a need for further enquiry that could then have
been identified at that stage.
12.
There was thus much to be said for the City Council in seeking to object
to something which was likely to cause it some difficulty if proceeded with
there and then.
The Tribunal’s Reasons
13.
The Tribunal took the view, see paragraph 66, that what had occurred was
not a deliberate ambush by the Claimants of a witness for the Respondent.
There was no concealment deliberately of the point. Secondly, it had regard to
the case of Traynor; we shall come back to that decision.
14.
It regarded the purpose of the amendment as creating no cause of action,
nor did it identify any new claim. It was essentially an evidential amendment to
support a pleaded contention. The view of the Tribunal as expressed in the decision
was that (see paragraph 51) the City Council had not been given fair notice of
that part of the Fox Claimants case which concerned the allocation of
particular jobs to role profiles. As we have observed, the point was made
generally but not by reference to the specific categories in respect of who Mr
Galbraith-Marten asked the offending questions.
15.
The Judge had regard to a matter upon which both English and Scottish
authority coincides, though it has to be said with rather greater emphasis north
of the border. That is that it is an essential aspect of fairness that a party
should be made aware of the case it has to meet. Unless told sufficiently and
sufficiently clearly of the nature of that case the party should not be
expected to meet it. We regard that principle as axiomatic.
16.
The way in which the Tribunal sought that that be done here was by
requiring an amendment to be carefully drafted so that there was sufficient
clarity and so that the evidence which was required was sufficiently circumscribed
so that the case could be efficiently pursued. It was an essential aspect of
ensuring fairness.
17.
The Tribunal in its reasons noted that there was no time bar here, there
being no new cause of action or new claim asserted by proposed amendment. It regarded
the lateness of the amendment plainly in a way which was adverse to the
application’s success but not, as it said, fatal to it. It is accepted that an
amendment can be made at any time during a case. At any times means what those
three words say. But we accept, as it appears to us did the Tribunal below,
that the later the application is made the greater will be the reluctance of a
Tribunal to accede to it, though that will largely be because the prejudice
allowed by granting it is likely to be all the more.
18.
The Tribunal adjudged that the case was not one of mistake of a kind
which had been considered in the case of Beddoes v Birmingham City
Council; that was a reference a case in which the Judgment was dated 9
May 2011 before Underhill J as President of this Tribunal. Like this case, it
considered mass equal pay litigation. Claimants had in their ET1s mis-described
the jobs which they were doing at their material times. Those who had done so
subsequently sought permission to amend or correct the error. There were 14
appeals by Claimants to whom such permission had been refused by the Tribunal.
19.
The Appeal Tribunal allowed the appeal to permit the mis-description to
be corrected. In doing so it stated at paragraph 13:
“In the context of mass litigation it is inevitable that
mistakes will occur in relation to job titles, particularly where the titles
themselves are so multifarious and often only finally distinguish one from
another. Subject to the question of any prejudice caused to the Council or any
specific points as to jurisdiction, we believe that a Tribunal should be very
ready to allow the correction of such mistakes. An individual who by reason of
such an error is prevented from pursuing her claim or her best claim in
circumstances where her colleagues claims are proceeding will feel an acute and
legitimate sense of injustice, whereas for the Respondent the fact that one
claim out of thousands may not proceed or proceed on all the basis available is
a matter of marginal significance. In our Judgment, it makes no real
difference in this context whether the effect of the amendment sought can be
said to substitute a new cause of action except, again, to the extent that that
raises a jurisdictional issue or that it causes real prejudice to the
Respondent […] The fact is that it was a mistake. Litigation is not a game and
it is not the business of courts or Tribunals to punish accidental error that
has not created any real prejudice or risk to justice being done.”
20.
Neither advocate before us complains that the Tribunal was wrong to
regard this case before us as not being a case of mistake in the Beddoes
sense.
21.
The Tribunal went on to look at a number of considerations. It did so
in the light of rejecting the submission made by Mr Galbraith-Marten during the
course of the hearing that the need for amendment arose by a mistake. It
concluded rather (paragraph 73):
“The amendment before the Tribunal arises from a strategic or,
perhaps, tactical decision on the part of those acting for the Fox Claimants to
proceed on the basis that all that it was necessary to do to put the Fox
Claimants case fairly and effectively was to cross-examine Dr Watson on the
basis that it was self evident from the job titles alone that the jobs that
were mentioned were so different that they could not have been allocated to the
same role profile if the methodology employed by the Respondent was to satisfy
the requirements of section 1(5) of the Equal Pay Act. No evidence was led by
the Fox Claimants as to the work of the newly identified jobs.”
22.
Having identified why it was that the amendment had been made late, the
Tribunal took into account that the case was one of massive proportions, took
the view that the number and potential value of the claims worked both ways
when considering an amendment, saying at paragraph 75 in relation to that:
“On the one hand, as the EAT in Beddoes shows ‘in
the context of mass litigation it is inevitable that mistakes will occur in
relation to job titles …’ there would be a “an acute and legitimate sense of
injustice” if such a mistake prevented a Claimant from pursuing a claim. On
the other hand this is mass litigation conducted by expert solicitors and
Counsel who ought to be adequately resourced to take on litigation in this scale
and of this value and to take steps to ensure the soundness of their judgments
as to the way in which the case may best be put.”
23.
It observed that there had been an Excel spreadsheet, which it commented
was surprising had not been recovered rather earlier, but that it was also surprising
that there was nothing to suggest that it had not been interrogated (it meant
by the Claimants) so as to give up its treasures “long before” the hearing was
underway.
24.
It then, plainly, as we see it, looked at the prejudice which granting
or refusing the amendment might cause. One obvious aspect of prejudice was
time. Any additional evidence, particularly if called or if the need for which
arises late in the day is likely to cause the expenditure of further time. As to
that, the Tribunal already knew that there would be further hearings in the
same case in both February and May (see paragraph 69) and at paragraph 78 it
noted that it plainly had in mind that the additional days might be
accommodated then. If not it was likely that steps could be taken at that
stage, some five months in advance, to minimise any delay. It thus took into
account the possibility of delay, but took the view that on the basis of that
which appeared to it at the time any delay would be minimal. It was asked to
consider expense. It thought no specific additional expense would be incurred
in consequence of allowing the amendment and if it did there could be an
application made at a later time in respect of it.
25.
It noted that there was nothing specific said to it which suggested that
witness evidence which might have been available had the amendment been made
sooner was now unavailable. It examined the prejudice caused by the late
timing of the amendment. At paragraph 82 it sought to balance the injustice
and hardship of allowing the amendment against the injustice and hardship of
refusing it. It considered the balance to favour allowing the amendment and
explained in addition to the points already made as follows:
“82 … The Fox claimants predicate the application
to amend on the contention that an examination of the work associated with the
job titles mentioned in the amendment will serve to demonstrate that the Respondents’
methodology is based on a flawed design concept so as to defeat the Respondents’
contention that the material jobs were evaluated under a study of the kind
mentioned in section 1(5) Equal Pay Act. Whether the evidence will show what
the Claimants say it will is, at this stage, unknown. It may turn out that the
evidence will provide the Respondent with a firmer foundation for its
contention that it employed a section 1(5) compliant methodology. Unless the
evidence is heard, however, the Tribunal will be put to deciding this case
without that evidence and doing so may visit injustice on one party or the
other. Further, the Tribunal has not heard from the respondent that specific
difficulties have arisen that may lead to prejudice or that there are
significant additional expenses that the respondent will have to bear.
83 The Tribunal takes into account that the claimants mount an
attack on the Respondents’ pay and grading system going beyond the pay of the
particular Claimants in the case and that until this matter has been determined
there will inevitably be uncertainty as to whether that system will stand,
require to be tweaked or require root and branch reform and that uncertainty
may sound in the minds of individual employees as well as in the broader
industrial relations context.
84 In the Tribunal’s assessment refusing an amendment that
might lead the way to the Claimants showing a breach in the right to equal pay
exposes the Claimants to a greater risk of hardship and injustice than that to
which the Respondent would be exposed by allowing the amendment.”
26.
In making the point the Tribunal did at paragraph 82, it was echoing an
observation made by the Judge during the course of argument in which he asked
the advocate, “How can we make findings fairly without knowing the facts?”
The Appeal
27.
The appeal argues that the Tribunal failed to take into account relevant
considerations and took into account irrelevant considerations. In doing so it
reached a conclusion which was inimical to the overriding objectives. The way
in which it was put to us by Mr Bowers, of Queen’s Counsel, was to argue that
the wide discretion which the law recognises has to be granted a Tribunal in
making a decision of this type does not answer the question whether the
Tribunal has applied the right principle of law.
28.
Here he submits the Tribunal was wrong in principle because in essence
it took into account matters which it should not have done and left out of
account matters which it should have taken into account. Thus, in considering
an application made late for an amendment the Tribunal had to take into account
the reasons for that amendment. He relied upon the words of this Tribunal in
the case of Ladbrokes Racing Ltd v Lawrence Stephen Traynor UKEATS/0067/06,
a Judgment of 3 October 2007 given by a Tribunal which included Mr Pagliari, a
Member of the current Tribunal, and in which judgment was delivered by Lady
Smith. At paragraph 20 the Tribunal said this:
“20 When considering an application for leave to
amend a claim, an Employment Tribunal requires to balance the injustice and
hardship of allowing the amendment against the injustice and hardship of
refusing. That involves it considering at least the nature and terms of the
amendment proposed, the applicability of any time limits and the timing and the
manner of the application. The latter will involve it considering the reason
why the application is made at the stage that it is made and why it was not
made earlier. It also requires to consider whether, if the amendment is
allowed, delay will ensue and whether there are likely to be additional costs
whether because of the delay or because of the extent to which the hearing will
be lengthened if the new issue is allowed to be raised, particularly if they
are unlikely to be recovered by the party who incurs them. Delay may, of
course, in an individual case have put a respondent in a position where
evidence relevant to the new issue is no longer available or is of lesser
quality than it would have been earlier. These principles are discussed in the
well known case of Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore
[1996] IRLR 661. Further, as was also observed by the President, Mummery J, as
he then was, in Selkent at paragraph 26:
‘ …an application for amendment made close to a hearing
date usually calls for an explanation as to why it is being made then, and was
not made earlier, particularly when the new facts alleged must have been within
the knowledge of the applicant at the time he was dismissed and at the time
when he presented his originating application.’
21 Even more must it be the case that an application to amend
in the course of a hearing calls for a full explanation as to why it was not
made earlier.”
29.
We note at this stage that both counsel, for their own purposes, seek to
rely upon those words. We, as will be apparent from our judgment, adopt them.
We note that the Tribunal specifically directed itself by reference to them.
Mr Bowers takes from them not just that the reason must be established why the
application is made late but that the Tribunal must consider the quality of
that reason. Unless a Tribunal considers that the reason is a good reason it
is omitting a matter to which it should in principle have regard. It is right
that in the statement of principle at paragraphs 20 to 21 in Traynor
there is no express requirement that a Tribunal should exercise an evaluative
judgment as to the quality of the reason. Mr Bowers’ case is that it is
implicit. Secondly, he argues that here the Tribunal made no such evaluation.
Next he argues that this was a case in which the Tribunal wrongly took into
account that the massive proportions of the case sounded both ways when
considering an amendment; see paragraph 75 which we have already cited. Further,
he argued that it should have taken into account the fact that the Excel spreadsheet
had been disclosed some time before and that it failed to draw any material
against exercising its discretion to allow the amendment from the fact, which it
found to be surprising, that the spreadsheet had not been interrogated earlier
so as to give up its treasures.
30.
The Tribunal had failed to recognise and weigh the injustice properly
and adequately as, for instance, demonstrated in the case of Ahuja v Inghams
[2002] ICR 1485. He argued that weighing process here had been inadequate. The
Tribunal had not sufficiently considered the prejudice caused by the likely
passage of time. This was a case in which each week in which the Tribunal
continued and therefore each week its judgment was delayed represented a
further week of uncertainty for Glasgow Council as to whether its workforce pay
and benefits review was a valid scheme. He had argued that very point to the
Tribunal. There was a real risk that the May tranche of hearings would not be
sufficient to accommodate the additional two or three days which would be
needed to hear the additional evidence occasioned by the amendment.
31.
He argued that it had been the intention of the parties demonstrated
through the case management discussions and list of issues drawn up prior to
the hearing that there should be a closed list of Claimants and comparators and
not a developing one. The danger was one of “mission creep”: in his words,
that a case put on one basis was, he said, potentially allowed to become a
bagatelle.
32.
The additional expense had not been properly taken into account, nor had
the fact that the application was made as late as it was when the Claimant had
already closed its case on any sensible view. The Tribunal should not have
taken into account that the size of the case could tell in favour of granting
the amendment. Accordingly, he submitted, taken individually or collectively those
factors meant that this Tribunal had erred in principle in the way in which it
had addressed the amendment.
Discussion
33.
This Tribunal in Traynor correctly stated the central
principle to be applied when considering an application to amend in the first
sentence of paragraph 20. The question is whether the balance of justice is in
favour of allowing the amendment. It will inevitably cause injustice and
hardship. The question is whether that is greater against granting the
amendment or greater in permitting it. The other matters to which Lady Smith drew
attention were explanatory of that overall and central principle. She
recognised in the second sentence at paragraph 20 that it is effectively
impossible to draw up a complete checklist; cases will vary. That is why we
have no doubt the Tribunal used the words “it involves considering at least…”
and then the factors which followed. Those factors inevitably will fall to be
considered.
34.
Here there was no question which arose as to the nature and terms of the
amendment. There was no question of time limits. But the manner of the
application did fall for consideration. Of the matters which Mr Bowers argued
the Tribunal had not taken proper account, Mr Galbraith-Marten for his part
asserted that the Tribunal had. If he is right in that then the principle with
which we began this Judgment must inevitably apply. Whatever our own decision
as to the amendment might have been, the Tribunal’s decision would stand since
it cannot in this case be said to be perverse. Mr Galbraith-Marten has
satisfied us that on each of the points which Mr Bowers complained the Tribunal
did take the matter said not have to been considered into account and did not
impermissibly taken into account the one matter which he said it should not
have done. There is one slight qualification to that: that is the first point
which Mr Bowers made. He argued that the Tribunal had not established what the
reason was for the lateness of the amendment. It did do so at paragraph 70 in
the first sentence: it said it was doing so and the critical words are perhaps
the last three in that sentence. It was looking there specifically at the
lateness of the amendment. It came to a conclusion as we have pointed out at
paragraph 73. It did not, however, say whether in its view that was a “good”
or a “bad” reason. It gave no express evaluative judgment about it.
35.
We do not think that the absence of an evaluative judgment in this case
means that the overall judgment which the Tribunal reached which was, as we
have noted, a question of balancing the justice and injustice on both sides,
was improperly reached. We note that despite the list of matters which this
Tribunal identified in Traynor, there was no express requirement
that the Tribunal assess the quality of the reason. There may be good reason
not to since the ultimate question to be determined is not one of penalising
the conduct of a party for having a bad reason for seeking an adjournment if,
on balance of justice and injustice, it would otherwise be permitted. Thus, in
Sefton NBC v Hincks [2011] ICR 1357 at paragraph 13 Underhill J
said:
“As we observed in Beddoes v Birmingham City Council
it is particularly important in this kind of mass litigation to observe what is
in truth a general principle, namely that amendments should not be denied
purely and punitively and where no real prejudice will be done by their being
granted.”
36.
He was looking, as do we, for the overall question of whether prejudice
and its opposite had been balanced. Mr Bowers does not seek to argue that an
amendment should be denied purely punitively. He does, however, argue that
there is more to the matter than that and that having a bad reason for making
an application late is part of the picture which the Tribunal must take into
account.
37.
We consider in relation to that submission that a Tribunal Judgment
needs to be read as a whole. Here it is clear to us that the Tribunal took
considerable care to set out in detail its reasoning for and against granting
the amendment and came to a conclusion which was not perverse. It plainly
rejected the explanation of mistake which had been advanced by the Claimant.
It thus plainly had in mind the nature of the reason for seeking the amendment
and for the matter having come to light requiring it so late in the day.
38.
It, in our view, must have had in mind a view which did not in our judgment
require to be expressed separately and specifically as to that reason, but the
main question it had to resolve was not whether the conduct of the Claimant’s
was reprehensible but whether justice overall to both parties, balancing the
hardship to each, required that the amendment as proposed be granted. That it
did decide, not on one issue alone, amongst many, but taking all together in
context.
39.
As to the second proposition that the claim could not be said to sound in
favour of the Claimant on the ground of its massive proportions, again we
consider that the totality of the Judgment needs to be reviewed. This was a
case in which that very size meant that there was no significant delay which
was likely because of the already established need for there to be a further
hearing in May and the likelihood as the Tribunal Judge saw it at the time that
if additional time was needed and could not be accommodated within that period
that further dates could be sought in good time such that delay was minimal.
It is also plainly something that he had in mind in reviewing, as the Tribunal
did, at paragraph 82 the balance of injustice and hardship.
40.
As to the Excel spreadsheet, that was something again which went to
underpin the point made, quite properly, that the question asked in
cross-examination invited further evidence at a very late stage when the need
for it might have been apparent much earlier. That is no more, as we see it,
than emphasising the late nature of the amendment which it is plain the
Tribunal was at pains to consider and to put heavily in the balance in favour
of rejecting it: similarly the intention that there should be a closed list of
Claimants and comparators. Mr Galbraith-Marten points out that the effect of
the amendment is still to circumscribe carefully the extent of the evidence which
is likely to be available; two to three days only will be needed as we have
pointed out.
41.
The problem of additional expense is dealt with in paragraph 79; the
fact that the Claimants had closed their case in paragraph 81. The argument
that prejudice was not weighed properly is dealt with at both paragraphs 69 and
78. It is plain to us that the Tribunal expressly considered the prejudice to
each party; it said so. It looked at issues of prejudice not just in paragraph
82 which began with that express recognition but in the paragraphs which
preceded it.
42.
The conclusion to which it came was one which, in the light of that, we
consider was based on no wrong statement of law. We accept that on each of the
specific matters which it is said the Tribunal left out of account, the
Tribunal said that it was taking them into account and made sufficient
reference to them to satisfy us that it must have done so. It follows that the
conclusion not having been plainly perverse, whatever another Tribunal might
itself have concluded in similar circumstances, this Tribunal was entitled to
approach the central issue as it did.
43.
Given the very wide scope of the discretion which is permitted, we see
no proper basis here for supposing that the Tribunal erred in law. It follows
that this appeal, despite the way in which it has been attractively presented
by Mr Bowers, must be rejected.
Skeleton Arguments in Scotland at the Appeal Tribunal
44.
During the course of the preparation for this hearing we were asked to
consider a skeleton argument produced by Mr Galbraith-Marten. It was dated
yesterday. There is a difference of approach in Scotland and in England as to the use of skeleton arguments; in England the Appeal Tribunal will always order skeleton
arguments and will make provision that they be provided some several days in
advance of the hearing. That is important because it means that they can be
sent out to the lay members who generally find a well drafted and reasonably
succinct skeleton argument to be of great assistance in helping them to begin
to consider the case. That assistance is no different whether the case is in Scotland or in England. But in Scotland there is no general requirement which is insisted upon by
order that the parties produce a skeleton argument; that corresponds with the
general approach in civil litigation in Scotland.
45.
The English practice has begun to infect, if that is the right word,
cases in Scotland. Although there is no obligation for a party to provide a skeleton
argument, if a party thinks that one would be useful then it is essential, in
our view, that it be submitted a good time in advance of the hearing and
certainly in sufficient time for the lay members and the Tribunal to consider
it fully as part of its advance reading for the hearing. We hope that those
parties who wish to take advantage of what is in a case such as this a very
useful process will bear those words in mind and ensure that if they are going
to offer a skeleton argument they do please do so a good time in advance.
