Tribunals set to limit lawyers' roles

REVIEW: Judge recommends limiting public funding in tribunals and doing away with contingency fees in employment cases

The role of lawyers in tribunals should be reduced and funding for representation limited to exceptional circumstances, a major report on the future of the tribunal system has concluded.The review of tribunals, conducted by former Lord Justice of Appeal Sir Andrew Leggatt, said 'representation not only adds unnecessarily to cost, formality and delay, but it also works against the objective of making tribunals directly and easily accessible to the full range of potential users'.Publicly funded representation should be approved 'on an exceptional basis by reference to specific cases, or class of case, rather than to particular tribunals', he recommended.

The report highlighted situations where appellants cannot represent themselves because of legal complexity, and physical or mental incapacity.However, Sir Andrew did expressly encourage more pro bono work from lawyers.Leading employment lawyer Kerry Underwood, senior partner of St Albans firm Underwoods, said: 'Tribunals have responsibility for increasingly important and controversial areas, so inevitably cases will require lawyers to avoid an imbalance between the parties.

To ensure this there must be a reward for representation as only certain City lawyers can afford to do pro bono work.'The report - which has formed the basis of a government consultation issued last week - argued that by making the tribunal regime more user-friendly, the need for legal representation would be less.

It said: 'A combination of good quality information and advice, effective procedures and well-conducted hearings should go a very long way to helping the vast majority of appellants to understand and put their cases properly themselves'.

It is also recommended against any extension of tribunal powers to award costs.

Raymond Jeffers, a partner at Linklaters and chairman of the Employment Lawyers Association's legislative and policy committee, said: 'Tribunals are becoming more like courts and as such costs should follow the event'.

Sir Andrew said that in principle, the use of contingency fees in employment tribunals should be prohibited until they are used in courts.

They are available in tribunals because the proceedings are deemed non-contentious.Mr Underwood, a leading exponent of employment work on a contingency fee basis, said that if this happened, the government would be in breach of the right to a fair trial under the Human Rights Act 1998 and forced to push emergency legislation through parliament to fund tribunals.

'I would of course be happy with that,' he said, 'but estimate the cost to be around half a billion pounds.'To create a more 'coherent and effective system', the report recommended that a right of appeal to second-tier tribunals should be introduced across the board, but only if 'any current rights of appeal are replaced by a right of appeal on a point of law'.Similarly, 'to develop a consistent view of the law', it said 'decisions about binding precedents should be taken by the president of each appellate tribunal' and there were also calls for tribunals to be expressly excluded from judicial review, if rights of appeal have not been exhausted.The report also recommended establishing a unified tribunal service, active case management and the appointment of legally qualified registrars to decide whether a case is suitable for alternative dispute resolution.

A Law Society spokesperson said the introduction of a more effective appeals system would be welcome, but there was disappointment that publicly funded representation would be limited to exceptional cases.LINKS: www.lcd.gov.ukAndrew Towler