Judges plead for end to narrative style particulars: Less is more

Less is more.  The skilful lawyer demonstrates the ability to reduce an employment law case to its key elements, in a clear and concise manner.  In the recent case of C v D [2020], the EAT felt compelled to remind legal teams of their responsibilities when submitting a claim form and statement of case.  A narrative form of pleading makes the case inherently more difficult for the judge to understand and is likely to save time and costs overall, although arguably is more difficult to draft in the first instance.

Claims should be set out with sufficient facts, but not the kind of detail contained within a witness statement; the goal being to formally initiate legal proceedings and to set out to the other side what has been unlawfully done or not done.  This provides a structured document from which each point can be admitted or denied.

A similar reprimand was issued in Hague Plant Limited v Hague & Ors [2014] which further highlights the implications of adopting a narrative style.  A failure to reduce the particulars to their elements is likely to obscure the issues, leading to problems when permission is being sought to amend the particulars of claim.  The court were damning in their assessment of the state of recent pleadings; describing ‘documents drafted to interminable lengths and diffuseness and conspicuous lack of precision, often destined never to be referred to at trial’.  The assessment of the quality of pleadings was fatal to the application to amend in the case; the court citing the further duplicative and unnecessary work the amendment would impose on the defendants and the consequences on the cost and duration of the trial.

A combination of witness statements, grievances and disciplinary notes can produce a significant body of work that needs expertly deconstructing.  Such documents and interviews are often laced with various opinions and emotion which can deflect from the facts, requiring distillation when building the statement of case.  The aim is to set out the alleged facts which the party relies on that constitute(s) a cause of action, to be proved on a balance of probabilities to succeed on their case at trial.

A great statement of case will inevitably lead to better representations in court, allowing a clear timeline and structure to develop, and better arguments on the legal issues to be made.  Ironically, containing the narrative to the original witness statements and documents promotes them being referenced more clearly and used effectively to leverage a particular submission made.

Using the techniques described can be useful in business way before the issuing of employment legal proceedings.  Managers should practice reducing grievances or investigations to the key facts when making a decision as to whether a scenario constitutes a cause of action.  It is crucial to read between the lines of opinion and emotion to professionally deconstruct an employment law issue in order to deal with it in a clear and structured manner.  This is likely to lead to fewer formal disciplinary procedures and better outcomes when action is required.

Storytelling has its place, but it is more likely your business may need support in reducing a complicated scenario to the facts, outside of the narrative. Looking at the objectively at an employment issue provides clarity in decision making or next steps.  All situations are different, so please call 01924 379 078 in the first instance to discuss.