Advocacy

Tribunal advocacy: top tips

The number of solicitor advocates appearing before tribunals remains low. Judge Raghavan, a salaried judge of the Upper Tribunal, Tax and Chancery Chamber, outlines how advocates can shine in a tribunal setting, regardless of the jurisdiction.

Before the hearing

Learn the tribunal rules

Make sure you know the relevant rules, practice and procedure of the tribunal you’re appearing in.

There’s no point turning up with the White Book and littering your submissions with references to the Civil Procedure Rules. It’s better to get to grips with the rather more slimline tribunal rules and make reference to those when submitting any applications.

Bear in mind the various sets of tribunal procedural rules have a lot in common with each other. So if a particular point of interpretation arises on a procedural rule, it’s worth checking whether there’s any authority on an equivalent rule in a different tribunal jurisdiction.

Be clear that what you’re asking the tribunal to decide or direct is within its powers and be prepared to explain why it is.

Use the correct form of address

Do not trip up on simple things like correct form of address – your panel are more likely to be embarrassed than flattered if you shoot too high.

Be flexible on formality

Be prepared for the level of formality to vary according to the case. In tax, we have different categories of proceedings from informal ‘turn up and talk’ basic cases to complex cases.

Basic cases are typically heard around a meeting room table. Complex cases are heard in more formal courtrooms and run much more like a formal court hearing.

And remember that although litigation in the tribunal is likely to be more informal than in the courts, you still need to keep an eye on the basics. For example, make sure your questions to witnesses are relevant and that you do not asking leading questions in examination-in-chief.

Talk to your opponent

Talk to your opponent beforehand – the courtroom is no place for ‘blind dates’! Make sure you have enough time to bring up any anticipated applications with the other side and decide whether you can agree on them. Narrow down what’s in dispute or at least agree a sensible order of play/timetable.

At the hearing

Giving the panel reading time

Check what the panel has had a chance to read so far. It’s possible that those lever arch files of documents you prepared were only put in front of them just before the hearing.

If so, build in some reading time for the panel in the hearing timetable, or use your opening address to familiarise them with the key documents before launching into the evidence part of the hearing.

Questioning witnesses

Do not talk too quickly or rush your questions to witnesses. Unless you’ve organised and paid for transcribers to be at the hearing (which usually only happens in more complex, evidence-heavy cases), it’s up to the panel – usually the chair – to make notes of the proceedings.

Pace your submissions and questions to witnesses accordingly. A witness box filled with paginated bundles of lever arch files is likely to be alien territory for most people, so remember to be patient with witnesses when turning up documents.

Addressing the panel

Remember to engage with all members of the tribunal. Even if the chair does more talking than the others, the decision will ultimately be a panel decision.

Drawing out the facts

Do not assume that the tribunal will absorb all the materials and authorities you’ve put before it.

You need to draw out the relevant facts that you’re inviting the tribunal to find from the evidence it has heard. When it comes to case law, you need to clearly articulate what legal propositions you’re asking the tribunal to draw.

Answering questions

Although it may not feel like it, one of the benefits of live hearings is that issues can be addressed in a dynamic and interactive way that isn’t possible when dealing with matters on the papers.

Be prepared for the panel to ask questions of you and your witnesses, but equally don’t be put off if the panel does not have any queries.

Giving a summary

Make sure your closing submissions do not simply go over what has been submitted before. They should take proper account of the points that have arisen on the evidence heard.

If the other side have made further points, make sure you’ve made it clear to the tribunal in any reply whether you disagree with them – and if so, why.

After the hearing

Congratulate yourself. You’ve got another hearing under your belt. Advocacy when done well is, by definition, the result of a lot of hard work and preparation.

Rest assured that whatever the outcome the panel will, even if it’s not recorded in its decision, have been very grateful to have benefitted from the services of a good advocate.

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