Long-time Employment Tribunal practitioners will recall more or less fondly the days when every so often the Judge would suddenly send the parties out of the room mid-hearing and then lean towards one of the representatives and say incredulously “Come on, really?”.
When it was said to the other side, that was absolutely the Overriding Objective in action – a short, punchy, accurate and incisive intervention which almost always led to an adjournment while the chastened lawyer took urgent settlement instructions. However, when said to you, it was of course evidence of pre-determination, bias and a singular failure by the Employment Judge to understand any of the issues, as a result of which the practice pretty much died out.
But now it is back. By Presidential Guidance issued late last year the Employment Tribunal has formalised the concept of early neutral evaluation or “judicial assessment”. Essentially this represents an opportunity for the Employment Judge to express a preliminary view as to either the legal merits of the case and/or quantum if liability is found. There is now a box asking the parties about this in the standard Case Management Discussion agenda. So should you tick it to express an interest or not?
What you would be inviting, if the other side agrees, is not a ruling or decision of any sort, but merely a heavily-caveated view expressed in private as to the perceived merits of the claim or the possible range of compensation which might be awarded. “Heavily caveated” in particular because at that time the Employment Judge has not seen or heard any of the evidence and so is working entirely from the pleadings, which may obviously be of widely variable detail or quality. That said, the Guidance is clear that the preliminary assessment should be carried out only after the rest of the CMD has been completed, so there will at least be a clear understanding on the Judge’s part of the issues at stake and therefore of the factual and legal components required to make out each particular head of claim.
It will be made clear to the parties that the Employment Judge giving the assessment will not hear the main case and that his/her notes of it will not go on the case file, so there is no risk of pre-determination. It will also be stressed that the parties are free to ignore the assessment and to proceed with their case, however damning is the Judge’s view. This is not a replacement for a strike-out or deposit order, although it is obviously possible that if a party feels sufficiently buoyed up by a judicial assessment, it could then apply for that as well. Judicial assessment is also a one-shot offer, available at the start of the proceedings or not at all. You don’t get to re-check your continuing prospects of success down the line when case preparation is further advanced.
The Guidance makes clear that the judicial evaluation may not be mentioned in the main hearing, but does not answer the question of whether an initial unfavourable assessment could be used against a losing party as evidence that it pursued its claim/defence unreasonably and so should be exposed to a costs order. Our expectation is that in principle it could, but that very little weight would probably be attached to the assessment in most cases specifically because of its very preliminary, high-level and pre-evidence nature.
But that is not really what this device is for. The Protocol to the Guidance says (blurring the lines between judicial assessment and the rest of the CMD only slightly) that “an early assessment of the case… may assist the parties in identifying what the case is really about, what is at stake, and may clarify and narrow the issues and encourage settlement. This may lead to resolution of the case by agreement between the parties before positions become entrenched and costs excessive, or may shorten and simplify the scope of hearings“.
So if your case is reasonably strong and properly set out in your Tribunal pleading, and your opponent’s claims or compensation expectations are all shouting and whimsy, judicial assessment is worth seeking. If your claim or defence is rather more tactical or speculative, however, or if you have an aversion to receiving bad news from messengers whom you cannot then shoot, maybe better not.