Legal aid in employment cases and Lists of issues

October 31st, 2011 by Richard Leiper

The EAT has made some interesting observations about the usefulness of legal aid in employment cases: Price v Surrey County Council (UKEAT/0450/10, 27 October 2011).

In an unusual foray into the Appeal Tribunal, the panel was presided over by a Lord Justice of Appeal, Carnwath LJ. It said (paragraph 59),

“Provision of basic legal help to unrepresented litigants is important in the interests of the efficiency and economy of the justice system for the public, as much for its accessibility to the individual parties.”

Perhaps slightly hopefully, the EAT expressed the view that, had lawyers been involved at an early stage, they would not have allowed the case to develop as it did, with a number of peripheral allegations, exaggerations and an unsustainable allegation of corruption. Furthermore, the emphasis on a long list of individual ‘detriments’ distracted attention from the issues of substance.

This focus on the alleged detriments also led to observations on the drawing up of a list of issues. First, the EAT noted, an Employment Judge should not simply accept a list of issues presented to the Tribunal, even if agreed. The Judge has a duty to ensure that the case is clearly and efficiently presented. The Tribunal hearing the case is not required to follow the list of issues slavishly (paragraph 23).

The failing of the list in this case was that it had focused too much on the detailed factual allegations said to support the claimant’s case, rather than on the central issues of dispute between the parties (paragraph 24).

The EAT went so far as to append the list of issues as an example of What Not To Do.