Langstaff P, President of the Employment AppealTribunal, has handed down a new Practice Statement. You can view a copy of the Statement here.
The Statement provides guidance in respect of a) appeals in which a party seeks to rely upon fresh evidence and b) the citation of authorities in the EAT. Both issues represent some of the many bugbears that affect Judges that sit in the EAT.
In relation to fresh evidence appeals, the Statement is a reinforcement of what many have understood the position to be for some time. Namely, that it is the Tribunal at first instance that is better placed to deal with such applications by way of review, rather than the EAT coming to the case afresh. If the Tribunal makes an error of law in accepting or rejecting that review, then the route to the EAT remains open.
Turning to the citation of authorities, the Statement reminds parties about the proper use of authorities in the EAT. The EAT will retain a folder of key authorities such as Meek and therefore there is no need for parties to cite such familiar Judgments. Perhaps of most interest is this statement:
“Cases should set out legal principle, rather than be merely illustrative of an application of it. Parties must be prepared to justify more extensive citation of authority.”
The underlying rationale is sound. Some advocates view submissions as an attempt to demonstrate their academic knowledge through the use of irrelevant authorities. Such behaviour irritates Judges, is counterproductive and therefore amounts to poor advocacy. In addition, where it is necessary to state a principle, a single application of it may be both obscure and/or irrelevant. However, I do take the view that such a bold statement leaves room for error. In some limited circumstances, the illustration of the application of a principle can be informative. One of the points that I was taught at the very start of my legal training was that whilst it was important to understand the principle (e.g. from a House of Lords case) it was equally important to read the case that followed it, which may explain what the higher court was actually trying to get at. Food for thought.
The Statement also contains additional reminders that cases should be cited using correct citation practice (i.e. law reports in order of precedence) and that authorities bundles should be in chronological order, with key passages highlighted.