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Comment : The Use and Value of Oral Hearings in the Administrative Justice System
Lord Justice Carnwath
Senior President designate of Tribunals
I take this opportunity to welcome the Council on Tribunals' consultation paper on the use of oral hearings. I was also privileged to participate in a seminar organised by the Council on 21st June, a report of which may be found on their website. The Council is hoping both to gather information on the different types of oral exchange currently employed within administrative justice, and to develop principles for use in the future. I look forward to seeing the conclusions from that exercise. The purpose of this article is not in any way to pre-empt that work, but to offer some general thoughts which may help the discussion.
The context was set by Sir Andrew Leggatt's comments in his review of the tribunal system (Tribunals for Users: One System, One Service, March 2001):
"The Review... reported the following views on the value of oral hearings: oral hearings are more user-friendly than written procedures; are particularly suitable where cases turn on disputed facts or complex issues and where it is necessary to test the evidence rigorously; give a better opportunity to uncover information not disclosed in written evidence; offer parties the equivalent of their "day in court"; and allow "justice to be seen to be done" in a more transparent way than by use of written procedures. Whatever the perceived advantages, however, there are also perceived disadvantages to formal oral hearings; in some contexts they are viewed as costly, intimidating and time consuming."
It is of course difficult to generalise about Tribunals. The variety of subject-matter varies enormously, as do the resources and abilities of those involved. At the upper tier level, where the issues are generally limited to ones of law, the case for allowing at least some decisions to be made on paper is particularly persuasive, following for example the practice of the Social Security Commissioners. However, at the heart of any discussion must be the needs of the users, particularly where they are individuals who have no previous experience of a tribunal system. Some may find an oral hearing daunting, but others may feel cheated if they do not have their ‘day in court'. An oral hearing enables disputed facts to be fully explored, and gives the parties the opportunity to correct any misunderstandings. We should also not underestimate the importance to the parties of seeing a "real person" who is going to decide their case, rather than a faceless bureaucrat. Essential to the success of any procedures is the informed and accessible advice for the parties to the appeal.
The form of procedure must also be seen as part of a wider debate as to how disputes are handled. The philosophy of the White Paper was that an oral hearing before a Tribunal should be the last stage in the dispute resolution process and if at all possible disputes should be resolved at an earlier stage. If disputes are to be resolved before a hearing it is necessary to examine the steps leading up to the hearing. This will include looking at how the information leading to the decision is gathered; the decision making processes of the relevant Department; how well the decision is explained to the appellant; whether the Department has an internal review procedure and what this involves and what advice is given to the appellant about the appeals process. After the case is lodged with the Tribunal there should be means to encourage resolution in advance of a full hearing, including mediation. Some tribunals are already developing such ideas, and we will need to learn from their experience.
Even where there is no alternative to a formal decision of the Tribunal, the procedure needs to be adapted to suit the particular case. Oral procedures can take different forms. One useful illustration discussed at the seminar was the practice of the Lands Tribunal. Although it is a highly specialised tribunal, the scale and complexity of the cases before it can vary enormously - from small disputes involving a few hundred pounds with unrepresented litigants, to cases as complex as anything in the High Court, and involving many millions. To provide flexibility, four types of procedure are available: the standard procedure; the special procedure; the simplified procedure; or the written representations procedure. The details are set out in the President's practice direction (the details can be found on the Tribunal's website). In broad summary the practice is as follows.
Special procedure is for cases requiring case management by a Member in view of their complexity, the amount in issue or its wider importance. The procedure involves a pre-trial review by the Member to ensure that all appropriate directions are given for the fair, expeditious and economical conduct of the proceedings, and generally the case will proceed much as in a court. Simplified procedure provides for the speedy and economical determination of cases in which no substantial issue of law or valuation practice, or substantial conflict of fact, is likely to arise. The objective is to move to a hearing as quickly as possible and with the minimum of formality and cost. The hearing is informal and strict rules of evidence do not apply. It will almost always be completed in a single day. Except in compensation cases, to which particular statutory provisions on costs apply, an award of costs is made only in exceptional circumstances. Written representation procedure requires the consent of the parties, and will only be used if the Tribunal, having regard to the issues in the case and the desirability of minimising costs, is of the view that oral evidence and argument can properly be dispensed with. The Member allocated to the case will if necessary carry out a site inspection before giving his written decision. The standard procedure applies in all other cases. Under this procedure case management will be in the hands of the Registrar. He will look to hold a PTR at the earliest time that it appears appropriate to do so, and he will give directions tailored to the requirements of the particular case. These directions may, as appropriate, use elements of the special procedure (for example, timetabling through to the hearing date) or the simplified procedure.
This is no more than an illustration. Other tribunals will have their own models. I hope that the Council will be able to make some useful comparisons, and draw some conclusions as to best practice. If and when the new rules committee is established under the proposed legislation, one item on its agenda no doubt will be to review the differing procedural requirements in this respect. In the meantime I await the Council's conclusions with great interest.
(October 2005)
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