"Judges, magistrates and tribunal members sit in many jurisdictions, and the way in which court proceedings are conducted across these jurisdiction can be very different - from adversarial cases involving lawyers, to sitting informally round a table discussing issues with the judge."
Rôle of the Tribunal Chairman or Tribunal Judge
A tribunal chairman or tribunal judge is responsible for the overall running of the hearing. Tribunals hear cases with both legal representatives, and people representing themselves. They are used to explaining how the system works to unrepresented individual claimants.
A tribunal chairman or tribunal judge may be a man or a woman. The titles are fixed by statute and include both sexes and different titles are used in different tribunals, depending on what the statute says.
Before the hearing
The tribunal chairman or tribunal judge will have control over the running of the case from an early stage. They give necessary directions and deal with orders on preliminary or jurisdiction issues. Before the hearing begins, the Tribunal Chairman or tribunal judge reads the papers in the case and considers how to proceed when the hearing begins.
Tribunal chairmen and tribunal judges play an active role in managing tribunal cases once issued, helping to ensure they proceed as quickly and efficiently as possible. This may include:
- Setting appropriate directions to ensure that the right documents and witnesses are available at any hearing;
- encouraging the parties to co-operate with each other in the conduct of the case, and (where appropriate);
- helping the parties to settle the case; and generally,
- Controlling the progress of the case.
As almost all Tribunal hearings are open to the public, parties who may be involved in a Tribunal case are welcome to attend before the hearing and see how the particular Tribunal operates. There are also leaflets available, both online and by post, from the Ministry of Justice (MoJ) and the particular Tribunals, to assist in preparation for the hearing.
The hearing
Except in cases which involve national security or evidence of a very personal nature, Tribunal cases are heard in open court and the public may attend. There is an exception, if the parties have agreed to have the decision 'on the papers', or one party has not answered the proceedings. In either of these situations, a case may be decided by the Tribunal Chairman or Tribunal Judge, or a panel, sitting in private without any attendance by the parties or their legal representatives.
The rules of evidence are not applied strictly at Tribunal hearings; in most cases, no oath will be administered, and hearsay evidence can be considered. Proceedings take place sitting down and nobody wears robes or wigs. Parties are expected to assist by following directions and providing enough copies of their relevant documents in good time, but the stricter disclosure rules for the ordinary courts are not applied.
Occasionally, the parties will have agreed the relevant facts and it will not be necessary for the judge to hear any live evidence. The issues may concern the law to be applied or the terms of the decision or judgment to be given. However, more often than not, the parties will give written and live evidence and their witnesses and the live witnesses may be cross-examined (asked questions by the other party) to test their evidence against the other party's case.
The Tribunal Chairman or Tribunal Judge ensures that all parties involved are given the opportunity to have their case presented and considered as fully and fairly as possible. During the case, the Tribunal Chairman or Tribunal Judge will ask questions on any point he feels requires clarification or which he feels is relevant and will help with his decision but has not been covered. The Tribunal Chairman or Tribunal Judge also decides on all matters of procedure which may arise during a hearing.
The claimant - the person who has brought the case to court - will have asked for some form of relief against the other party. It is the claimant's job to prove that they are entitled to the remedy they are seeking.
The Tribunal Chairmen or Tribunal Judge and panel members (if a panel hears the case), will consider the evidence, both on paper and in what the witnesses have said. They are guided and constrained by the statutory powers of their Tribunal to resolve the issue which the claimant has raised. If the case meets the requirements of the statute, the Tribunal can make one of a range of orders set out in the law.
The Tribunal will then hear closing arguments (submissions) from both parties, and make its decision.
The decision
Tribunal Chairmen or Tribunal Judges may be assisted in their decision making by other legally qualified members, or by experienced specialist panel members who were present throughout the hearing. Specialist members are not lawyers, but are appointed for the other expertise they have. They not act as expert witnesses but bring to the panel their experience of their particular field, with all legal matters remaining the Tribunal Chairman or Tribunal Judge's responsibility. All of the panel members take part in the decision.
The Tribunal's decision is given either at the hearing, or for difficult points, in writing later. In either case, the parties will get a written decision. In order to make the decision, the panel, or the individual Tribunal Chairman or Tribunal Judge, considers the witnesses' oral evidence, the documents filed, and the closing arguments, and then makes its findings of fact. If the witnesses do not agree, the Tribunal has to decide who to believe, and say why.
The next step is to apply the relevant law to the facts the Tribunal accepts - and there may be considerable argument about what that law actually is - and then to give the decision. A fully reasoned judgment will be provided in most cases, but some Tribunals do so only on request.
After the hearing
Parties at Tribunal hearings, except those involving discrimination in the Employment Tribunals, usually pay their own representatives or represent themselves. Tribunals normally do not make costs orders or contempt orders.
The ordinary Courts enforce tribunal decisions in cases of difficulty, and Tribunals do not usually hold funds or order deposits. Nevertheless, hearings are not a free-for-all; parties are expected to behave courteously and to comply with the Tribunal's directions.