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Kieran Wilson on Case Management, Lists of Issues, and the Need to Know Your Case from the Start

Case management is not typically regarded as the most glamorous aspect of litigation. This is understandable, since parties’ eyes are often fixed on the drama and stakes of the final hearing.

But, Kieran Wilson writes, the recent Court of Appeal decision in Scicluna v. Zippy Stitch Ltd & others [2018] EWCA Civ 1320 serves as a reminder of the importance of case management efforts – and in particular lists of issues – in how a final hearing may be fought, won, or lost.

The decision in Scicluna
The case arose in the familiar context of a family business falling-out. The Claimant had worked for the company and had agreed with his sister and brother-in-law that he would be paid £100 per day, deferred until the business could afford to pay him. When relations soured and the Claimant resigned, he brought claims in the Employment Tribunal for breach of contract and unlawful deductions from wages to recover the money he claimed to be owed.

The Respondent’s pleaded case (which the Employment Tribunal rejected) was that there was no agreement regarding payment of any money. The ET3 made no mention of any defence that, even if there was an agreement, the wages would not be payable on termination of employment because the company could not afford to pay them.

Nor, importantly, did the agreed list of issues refer to any such defence. The Court of Appeal agreed with the submission that if this defence was being relied on by the Respondent, there would have been further issues for the Employment Tribunal to decide; but because these were not included in the list of issues, they were never resolved.

The Court of Appeal found that the Employment Judge had been entitled to proceed on the basis that the only issue in relation to the unlawful deductions and breach of contract claims was whether there was an agreement that the Claimant would be paid a salary. It had not been suggested in the list of issues that an entitlement to be paid on termination might not follow from this. The Employment Judge had not, therefore, inferentially made a finding of fact regarding the company’s ability to pay – it simply was not an issue before the Tribunal.

The importance of lists of issues
In reaching his conclusion, Longmore LJ re-iterated the value of lists of issues, observing at [14]:

The Court re-affirmed the authorities on this point:

• Land Rover v. Short [2011] UKEAT/0496/10/RN at [32]-[33]: “it was trite law that it was the function of an Employment Tribunal to determine the claims which the claimant had actually brought, rather than the claims which he might have brought and that accordingly the claimant was limited to the complaints set out in the agreed list of issues.” Logically, Longmore LJ stated that the same proposition applied to defences relied on by the Respondent.
• Parekh v. London Borough of Brent [2012] EWCA Civ 1630 at [31] (per Mummery LJ): “A list of issues is a useful case management tool developed by the tribunal to bring some semblance of order, structure and clarity to proceedings in which the requirements of formal pleadings are minimised. The list is usually the agreed outcome of discussions between the parties or their representatives and the employment judge. If the list of issues is agreed, then that will, as a general rule, limit the issues at the substantive hearing to those in the list”.

Underhill LJ, agreeing with Longmore LJ, suggested at [22] that: “There are exceptional cases where it may be legitimate for a tribunal not to be bound by the precise terms of an agreed list of issues; but this is not one of them.”

Take-home tips
The decision goes to show the importance of getting a list of issues right, and the potential consequences of not doing so. The following practical tips should hopefully assist avoiding falling into this trap:

• Think in detail about what your case looks like, both factually and legally, from an early stage. Issues such as the “legal obligation” relied on in whistleblowing claims, the “something arising” in s.15 EqA disability discrimination claims, and alleged breaches of mutual trust and confidence culminating in a last straw in constructive dismissals all spring to mind as matters which require precision from early on.
• When drafting your list of issues, refer back to your pleaded case and make sure that it is comprehensively reflected. Parties should also beware of the generally stricter approach to pleaded cases since Chandhok v. Tirkey [2015] ICR 527 – see Craig Rajgopaul’s article here.
• Take more than a bare bones approach to your list of issues. It is common to see lists of issues which simply recite in the abstract the legal tests which the Tribunal is to apply. A lists of issues which is tailored to the facts of a particular case will give the parties more control over the approach the Tribunal takes to determining the claims.
• In fact-sensitive discrimination cases, it is often helpful to set out each factual allegation in tabular form by date, alleged act, perpetrator, comparator (if appropriate) and discrimination type. This approach will help untangle interwoven complaints and identify the scope of the dispute in complex cases.  

As well as avoiding closing off your own options in how a case is run, a well-drafted list of issues can be used strategically to tie a party to a particular formulation of its own case. This can be particularly useful to Respondents, for example, in cases involving sprawling allegations of discrimination or large numbers of alleged protected disclosures.

Although some Tribunals may be unhappy at having their hands tied in how they approach a party’s case, it is clear from the Scicluna decision that they risk erring if they step outside the issues as agreed between the parties.