Comparing overriding objectives

16 July 2012

The Underhill Rules draft contains a new version of the overriding objective.

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Current ET Rules:

To deal with cases justly, including, so far as practicable:

1. Insuring that the parties are on an equal footing.
2. Dealing with the case in ways which are proportionate to the complexity or importance of the issues.
3. Ensuring that it is dealt with expeditiously and fairly.
4. Saving expense.

Underhill ET Rules:

To deal with cases fairly and justly, including, so far as practicable:

1. Ensuring that the parties are on an equal footing;
2. Dealing with the case in ways which are proportionate to the complexity and importance of the issues.
3. Avoiding unnecessary formality and seeking flexibility in the proceedings.
4. Avoiding delay, so far as compatible with proper consideration of the issues.
5. Saving expense.

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There are two significant changes. First, the overriding objective in the new rules includes a requirement to avoid unnecessary formality and seek flexibility in the proceedings. In the current rules similar phrasing is found in Rule 14(2), which in relation to hearings says ‘So far as it appears appropriate to do so, the chairman or tribunal shall seek to avoid formality in his or its proceedings’. It’s interesting to see this promoted to the overriding objective, but I doubt it will make much difference in practice.

Second, ensuring the case is dealt with ‘expeditiously and fairly’ has been changed to ‘avoiding delay, so far as compatible with proper consideration of the issues’. The Oxford Dictionary defines ‘expeditious’ as ‘quick and efficient’. So I’m not sure that strictly there’s much of a difference between doing things expeditiously and doing them without delay. But it is a change of emphasis. It goes from doing things quickly and fairly; to doing them quickly, provided it isn’t unfair.

This shouldn’t be overstated. The core element of the overriding objective is to deal with cases fairly and justly – avoiding delay is one of a number of subsidiary elements to this. And the wording is the same used in other tribunals – such as the Social Entitlement Chamber of the First Tier Tribunal, discussed below.

But I think it does reflect a shift in the judicial culture in the tribunal system over the last few years. There is more concern now, than there was a decade ago, to keep cases moving towards a resolution. I think this concern is reflected in the new rules, including the overriding objective.

While looking at the overriding objective the employment tribunals, it’s worth comparing it to the versions in other jurisdictions.

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First Tier Tribunal – Social Entitlement Chamber Rules

To deal with cases fairly and justly, including:

1. Dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties.
2. Avoiding unnecessary formality and seeking flexibility in the proceedings.
3. Ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.
4. Using any special expertise of the Tribunal effectively.
5. Avoiding delay, so far as compatible with proper consideration of the issues.

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It’s interesting that the Social Entitlement Chamber includes an requirement to use the tribunal member’s special expertise effectively.¹ Lay members, with specialist expertise, have been an important part of the Employment Tribunals since they began as Industrial Tribunals in the 1960’s, but there is no equivalent directive. On the other hand, it might have been odd to add such a requirement at a time when the use of lay members in the ET and EAT is being reduced.

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Civil Procedure Rules

To deal with cases justly, including, so far as practicable:

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1. Ensuring that the parties are on an equal footing.
2. Saving expense.
3. Dealing with the case in ways which are proportionate –
   • to the amount of money involved;
   • to the importance of the case;
   • to the complexity of the issues; and
   • to the financial position of each party;
4. Ensuring that it is dealt with expeditiously and fairly.
5. Allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

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Laurie Anstis notes that the Resolving Workplace Disputes consultation included a suggestion that ‘an appropriate share of the court’s resources’ be added to the overriding objective in the Employment Tribunal Rules. Given that this suggestion has not been taken up by the Review, it’s interesting to see it in the CPR. Especially since, so far as I know, it has not caused controversy there.

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