Dealing with insults in court
When the court's authority is questioned by litigants in person or insolent advocates it is best for tribunals to remain calm, explains Mike Davies
Lord Justice Ward has said in a recent judgment that there is an increasingly worrying challenge to the court's authority at all levels arising from accusations of bias.
It does not help if such accusations are made in a petulant and insolent manner.
Sometimes this occurs when litigants act in person, but qualified advocates are not immune.
We have all witnessed occasions where through irritation, nerves, or stress, an advocate has used strong language before a court which was, to say the least, unwise.
In the case of Bennett v London Borough of Southwark, the Court of Appeal has just given judgment and this includes guidelines not so much for advocates but for courts and tribunals themselves, when dealing with such situations.
The case itself is interesting as an object lesson in what can go wrong when difficulties like these are allowed to get out of hand.
It was as long ago as 1993 when Ms Bennett, a black care manager for the London Borough of Southwark, brought a claim alleging sex and race discrimination, subsequently adding allegations of victimisation.
The tribunal allocated 10 days to hear the case in 1996.
Ms Bennett was represented by an advocate who was a regular lay representative in employment tribunals.
It is relevant to note that he is also black.
The 10 days were not enough to complete the hearing, and so the tribunal returned for a further eight-day sitting in January 1997.
At that stage, Ms Bennett was ill, complaining of 'flu and a bad back.
She was not present.
Her advocate applied to adjourn the hearing because of her absence.
The tribunal refused.
It referred to the fact that Ms Bennett had given her evidence and her representative could do the cross-examining in her absence, and took into account the waste of time and resources, expense to the respondent, and likely delay of months if the adjournment were to be granted.
During the lunch break the advocate spoke to Ms Bennett and she made it clear that she was unhappy for the case to proceed in her absence.
After lunch the advocate again applied to adjourn.
The tribunal gave him until the next morning.
At that stage he again renewed his application to adjourn.
It was during this application that the unfortunate words were used.
The advocate clearly took the view that the tribunal was against him and his emotions got the better of him.
The language he used triggered actions which have only now been untangled by the Court of Appeal.
He said that if he were a white barrister making that application he would not be treated in that way, and that if he were an Oxford-educated white barrister with a 'plummy voice', he would not be put in that position.
In other words, he accused the tribunal of racism.
The tribunal undoubtedly took these words with extreme seriousness.
Its members decided they could not continue to hear the case, which of course involved allegations of race discrimination.
They discharged themselves.
A fresh tribunal was convened in May 1997 with a limited remit and ordered that the case be struck out on the grounds that the advocate's conduct had been scandalous [rule13(2)(e) of the Employment Tribunal Rules of Procedure 1993].
A costs order for slightly less than 500 was made against Ms Bennett on the grounds of unreasonable conduct.
Ms Bennett appealed.
The Employment Appeal Tribunal dismissed the appeal.
It said that the first tribunal should not have discharged itself, but as it had decided that it could not judge the case impartially, it was right to leave the case struck out.
Ms Bennett appealed to the Court of Appeal.
This is the judgment now available.
She succeeded, with the result that the whole case now restarts before a fresh tribunal.
The Appeal Court judges made it clear that they took no satisfaction in reaching this conclusion.
Lord Justice Ward said the case 'fills me with despair'.
Lord Justice Sedley said the result 'is both inexorable and deeply depressing'.
The advocate's conduct was found to have fallen well below the minimum standard that could be expected.
He was described as showing 'inexcusable petulance'.
But the Court of Appeal focused particularly on the 'unfortunate capitulation' of the original tribunal to this insolence.
It is important to note that the behaviour in this case is in fact at heart far more than simply bad behaviour in cases of strong or inappropriate language or words or conduct which may be described as discourteous.
The advocate's remarks showed disrespect in the sense that he was saying, in terms, that the tribunal was incapable of discharging its duty because it was infected with racism.
The Court of Appeal does not overlook the seriousness of the insult.
It accepts that there will be cases where advocates have to challenge a court or tribunal.
However, in this case there was an allegation that the tribunal was treating the application unfavourably because the representative was not white and because he was not a barrister, without having any grounds for such an allegation or even suggesting that there were such grounds.
The guidance that emerges from the Court of Appeal in dealing with such cases as this is as follows:
l Be prepared.
Lord Justice Ward said: 'I do not deny that it is thoroughly unpleasant and uncomfortable to be accused of bias.
It is, sadly, not an uncommon charge'.
What is needed is the ability to rise above the challenge, and in general terms, develop a broad back.
l Many hasty words can simply be ignored.
'One way (and perhaps the best way in the case of a single outburst) is to ignore it,' said Lord Justice Sedley.
l Defuse tension.
Adjourning proceedings for a short break can be helpful.
l When a party has got into a difficulty by over hasty words which they may live to regret, consider giving them a way out.
Sometimes this can involve an invitation to withdraw the comments if they cannot justify them.
Where comments are withdrawn, there is no reason why proceedings cannot go ahead.
l Avoid making an immediate order without first giving the advocate an opportunity to understand what the court or tribunal has in mind.
And give the advocate time to reflect and respond before reaching any decision.
l Do not overreact.
This direct quote from Lord Justice Ward says it all: 'In getting on their high horse they fell off the judgment seat'.
The guiding principle is that tribunals should not allow invective to infect them with prejudice.
Of course, if, after the above guidance has been followed, a tribunal considers itself unable to hear a case impartially, then there is no alternative but to admit that it has been infected with bias and pull out.
Otherwise justice will be denied.
Mike Davies is head of employment law at Bristol-based Veale Wasbrough
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