What is a case management discussion?
A case management discussion (CMD) is an informal hearing before your main hearing. Both sides to the dispute attend the hearing.
The discussion will form the basis on how the case should be run and what the timetable for the case should be. For example:
what the legal and factual issues in the case are*
what orders should be made about documents and witnesses
dates for submission of witness statements
how long the full hearing should be, and when it will occur
* Legal and factual issues are important to your case, as they lay out the questions you are asking the Tribunal to answer. We recommend that you take advice from a solicitor.
Financial assistance may be available from legal aid on a ‘Green form’, which will provide legal assistance for 2 hours extended to 4 hours.
Preparing for the case management discussion hearing
A Tribunal can make a wide range of orders that relate to the management of the proceedings in a CMD including. For example:
• whether any of the parties should provide additional information;
• whether there should be discovery of documents (i.e. providing relevant documents) by any persons in Northern Ireland;
• whether an order compelling the attendance of a witness is required; or
• whether a Pre-Hearing Review is required about some aspect of the case.
Before a CMD takes place you will receive a template from the tribunal along with detailed information on the matters that will be discussed. You can use this template for the specific issues you want addressed and this is referred to as your ‘Statement of Facts and Issues’.
For information on how to substantiate your claim of discrimination and be in a position to answer any relevant questions please refer back to 'Compiling your case'
Consider what further documents, or additional information, you need that you have not been given to date or that, for one reason or another, you have not got. If the Respondent does not give these to you voluntarily then you will need an appropriate order from the Tribunal and one can be granted in a CMD. (It is expected that normally by the time the CMD takes place that the parties will have gathered the necessary information and documents from one another.)
Consider also what witnesses you will need and the time scale for preparing any witness statements. Try also to have dates on which your witnesses are available and more importantly dates when they are not. Take into account any requirements for reasonable adjustments or requests for interpreters needed for the witnesses.
The Tribunal Chairman may set dates for the hearing and may also set dates for submission of bundles of documents. Lastly, the Chairman might also direct that you prepare a Schedule of Loss
for delivery to the Respondent by a certain date.
On conclusion of the CMD and based on your and the Respondent’s Statement of Facts and Issues the tribunal will produce a final Statement of Facts and Issues. This document will set the parameters of the final hearing. The tribunal will produce a Record of Proceedings of the CMD to which the final Statement of Facts and Issues will be appended.
What is a bundle?
A bundle is the file of documents for evidence in your case that the tribunal will need to look at during the hearing. During the CMD you may want to ask for an order for the Respondent to produce the bundle.
If there is a disagreement between you and the Respondent about what documents should be put in the bundle, two bundles may be produced – one by you and one by the Respondent. Tribunals don’t like this because it can make following the evidence difficult, so try to agree documents with the Respondent if you can. However if you are producing the bundle, you will need six copies - one for each member of the tribunal panel, one for the Respondent, one for you and one for the witnesses.
What is a pre-hearing review?
A pre-hearing review (PHR) is a shorter hearing sometimes held before your main hearing. The tribunal might decide there will be a PHR, or you or the Respondent can ask for one as part of the case preparation. All parties attend the PHR.
The hearing will decide upon legal matters of an interim or preliminary nature. For example:
whether the claim has been made within time and, if not, whether it is ‘just and equitable’ to consider extending the time limit to allow the claim to be accepted; or
whether part of your or the Respondent's case is to be struck out. This means that if the judge feels that part of the case is weak, they will not allow it to continue;
whether there has been a failure to comply with Orders of the Tribunal. For example, the production of additional information and if so whether some, or all, of the claim should be struck out;
making a decision about any crucial issues to your case, that would mean you wouldn't be able to continue if they weren't proved. For example, this might be proving that you have a disability in a disability discrimination case;
whether the claim should be amended to add a matter not in the original claim.
In limited cases if the tribunal feels that you or the Respondent does not have a reasonable chance of success they might ask either of you to pay a deposit. Failure to pay the deposit within 21 days will result in the claim being struck out.
During the PHR the Tribunal may also make an order for interim relief, for example, for a short term remedy pending the full hearing.
Preparing the case for hearing - Pre-hearing review
You can see how important this stage is in the processing of your claim. Ensure that you are properly prepared for it. In particular, in the example for proving that you have a disability
in a disability discrimination case, ensure that any expert medical evidence you need is available for the PHR. This might include commissioning reports from a range of medical or occupational health professionals.
A PHR can also decide to strike out some, or all, of the claim, bringing that part which is struck out to an end. This can only happen, however, where one of the parties has requested the tribunal to make such an order or where the parties have failed to attend a PHR.
The tribunal will give notice to the parties that it intends to make an order and provide the party with an opportunity of presenting reasons why the order should not be made. If you receive a notice of a PHR sought by the Respondent check it carefully to see exactly what orders are being sought. You will be required to defeat the Respondent’s application by responding orally and with documentary evidence if available. Where a PHR is scheduled to deal with an application to have your claim, or part of it, struck out you should ensure that you are well prepared otherwise your claim ‘may be over before it begins’.
Any written submissions that you intend to make at a PHR must be with the tribunal 7 days before the hearing.
After all the preliminary steps have been negotiated, a (final) hearing to decide the principal legal and factual issues is held. This will be the hearing at which the tribunal will decide whether to uphold your claim of discrimination or not. The focus of this hearing will be on the Statement of Facts and Legal Issues which were identified and accepted by the Tribunal.
You are given advice on how to present your claim at this hearing in 'How to present your case'
Challenging a Tribunal's decision - Review hearing
A Review Hearing is a form of appeal against a tribunal’s decision on some aspect of the case. The review of the matter is the same tribunal that made the decision.
Either party can request a tribunal to review an aspect of any decision it makes in the course of dealing with a case. Exceptionally, the tribunal itself can initiate a review.
Suggested requests on areas to reconsider:
• a decision not to accept a claim (or part of it);
• a final decision in the case about the claim;
• some particular matter about costs;
• a request from a Respondent arising from the tribunal’s refusal to accept its response because it is out of time.
However, the review must be based on one of the following grounds:
1. the decision was made as a result of an administrative error;
2. the party did not receive notice of the hearing at which the decision was made;
3. the decision was made in the absence of a party;
4. new evidence has come to light since the decision which could not have reasonably been known of or foreseen at that time;
5. the interests of justice require such a review.
Note: the decision not to accept a claim or a response can be reviewed on the basis on the first and fifth grounds only.
This means that the discussion of whether the review should be allowed will be focused on one or more of these grounds and will not be a wide-ranging one. If it is the Respondent requesting the review, you should examine its written request to see what grounds it intends to rely on and you should be prepared to respond orally to its submissions at the Review Hearing.
If you are seeking the review, your written request
must indicate on which ground(s) you intend to rely and you must be prepared to make oral submissions in support of that application.
To initiate such a review, the party that seeks it must write to the tribunal within 14 days of the date on which the decision they seek to challenge was sent to them.