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A little knowledge is a dangerous thing for future Tribunal hearings survey (UK)

Look, it’s certainly not for me to criticise efforts being made by HM’s Courts and Tribunals Service to explore and improve how justice is best delivered during the pandemic and beyond. So the recent arrival in my inbox of a survey on the point being conducted by an independent external organisation IFF on behalf of HMCTS is surely a good sign.

Although the technology has sometimes wobbled, the savings in time and cost for litigating parties through the expansion of remote hearings has been so significant that it would surely be madness for the judicial system to ignore the lessons learnt over the last 12 months or so. After the initial disruption, the court and tribunal structure has done pretty well and though there are and will remain backlogs for some time, things could have been a great deal worse. Some Counsel and Judges have expressed disquiet about the loss of body-language cues on show in an in-person hearing, but in cases where there is no need to stare someone in the literal or metaphorical whites of their eyes during cross-examination, for example, the administrative, economic and environmental reasons for conducting many hearings remotely post-pandemic is surely overwhelming.  So top marks to HMCTS for the thought.

However, look at some of the individual questions in the survey and you begin to wonder if the answers are necessarily going to be all that helpful.  There are a number of questions relating to Equality Act characteristics and other personal details to which the respondent can quite properly answer “Prefer not to say”, but also a wholly disconcerting number where one of the permitted answers is “Don’t know”.  If there are those who have recently been involved in court or tribunal proceedings who are genuinely in the dark about how to respond to those questions, HMCTS and the justice system generally would seem to have altogether bigger problems than whether to extend the use of remote hearings.

Questions to which the eager survey respondent is given the “Don’t know” option include for example:

  • Did you recently take part in a court or tribunal hearing?

  • Did you have a lawyer or represent yourself?;

  • During the hearing were you in the same location as your lawyer?

And then moving on to some less taxing enquires, the survey also allows you to deny any knowledge in relation to:

  • Was the outcome of your hearing all or mostly in your favour or the other side’s?
  • Were you able to take sufficient breaks in the hearing?
  • To what extent were you satisfied by the outcome of the hearing?

And then concludes with this head-scratcher:

  • Are you aged 18 or over?

And the completely surreal:

  • Where were you when you took part in your hearing? [This presumably means physically rather than in your head, but in light of the other questions, that is clearly not a given].

On what possible basis could you not know the answers to those questions? Anonymity is promised to survey respondents, so sadly HMCTS will never be able to explore with those answering “Don’t know” to these questions precisely what they thought was going on at the time of their hearing (There was a hearing?  I was where? Who were all those people?).  If and when the statistical responses are published by HMCTS, it will be interesting, and possibly more than a bit depressing, to see how many people have genuinely gone through UK court or tribunal proceedings so impervious to their surroundings that they are unable to answer those questions more usefully.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 71
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

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