It was recently common for tribunals to tell the parties the afternoon before the first day of a final hearing that the hearing would not go ahead because there were insufficient judicial resources. Alternatively, the parties (and their witnesses) would arrive on the first day and have to wait until later that day to find out whether their case would go ahead or be relisted to some date months later. Parties found this frustrating, and the consequences in terms of costs and delay could be significant. Fortunately, this now seems to happen less often.
However, in my own recent experience, there may be a new issue. Parties are often told at the start of the hearing that their case has been allocated fewer days of judicial resource than the actual listing. Sometimes no reason is given, just an apology; on other occasions it is explained that the tribunal has been allotted another hearing on one or more of the days listed. I am not sure if this reflects a general trend, or a different approach by tribunals to managing a fluctuating and unpredictable case load. The risk of a case being allotted less time than the parties expect at the last moment is worth planning for.
The time allotted to a full hearing is often determined at a preliminary hearing, following discussion by the judge and the parties’ representatives. The listing will normally allow time for:
- The tribunal to read the materials.
- Cross-examination of each witness.
- Final submissions.
- Deliberation by the tribunal and an oral judgment.
- In appropriate cases, a period in which to determine remedies.
In practice, cases often reach the final submission stage when the allocated time is used up, leaving the tribunal to deliberate in chambers at some point in future. This is because representatives frequently underestimate the time cross-examination takes, and there are often unforeseen administrative and procedural matters.
Therefore it can be a real challenge to present a case when the tribunal has reduced the time available, sometimes to less than is needed to complete the evidence properly. The tribunal is likely to be keen to start the hearing, despite the difficulties that will be caused by it going part-heard. Such difficulties include:
- The delay before the matter can be relisted for the remainder of the hearing, made more difficult by the need for the representatives and tribunal members to be available on the same dates. It is likely to be easier to arrange a completely new listing for the full hearing.
- The fact that the most recently heard evidence will weigh more heavily on the tribunal and could create a greater impact, however effective the cross-examination was on the earlier occasion.
Often the best (or only) option is to start the hearing as planned. It may well then be in the interests of one or both parties to significantly reduce the amount of cross-examination to complete the evidence in the allotted time. Tribunals will often be willing to help case manage a hearing into a particular time slot, though it is difficult for a judge to curtail a party’s evidence if the nature of cross-examination is reasonable and further issues need to be covered. One way of saving time is to have final submissions and reply final submissions in writing and tribunals are often willing to do this. Indeed there is greater opportunity to challenge another party’s submissions on the facts in such a situation (since reply submissions in the normal course of events will be limited to matters of law).
The risk is that the evidence cannot be completed in the time available, even allowing for written final submissions. It may be possible to drastically reduce the amount of time spent on your cross-examination. This will be hard if the intended cross-examination is a scripted list of questions. But if the questioning follows themes, or concentrates on groups of documents, it is possible to show a witness’s incredibility or lack of objectivity where these aspects are most strong, and make the key points on the remaining areas of factual dispute, relying on the impressions made earlier. In an appropriate case, and where the tribunal has directed that both sides’ cross-examination should be kept succinct, such an approach can be effective.
The practical lesson is to be aware of the risk that the time available for cross-examination may be significantly shorter than originally intended, and to have an understanding of the points to be put to a witness that can be adapted and reshaped to the time available.