The argument against narrative pleadings

HHJ Tucker has, in her EAT judgment in C v D, set out some useful guidance encouraging employment lawyers to move away from the common ‘narrative’ style of Tribunal pleadings.

I started my legal professional life as a solicitor, specialising in employment law for seven years before transferring to the Bar.  As a pupil at 12KBW, I spent my first few months under the tutelage of Catherine Peck and Max Archer – both personal injury specialists. 

One of the things that I found hardest to adapt to was how differently litigators in the civil courts and those in the Employment Tribunal plead their cases. As a former employment solicitor, I was used to drafting fairly lengthy, fact-ridden ET1s and ET3s, which set out the background in (sometimes) minute detail and certainly went on for pages and pages. 

These differences in approach have been brought to a head in a recent decision of the EAT, C v D. In her judgment, Her Honour Judge Tucker made a plea that parties – and in particular employment lawyers – adopt a less narrative style in their pleadings before the Employment Tribunal.

This was an appeal against the decision of Employment Judge Baron to refuse a number of amendments to the Claimant’s claim. In some respects, the substantive parts of the decision are of less relevance to employment practitioners. Instead, HHJ Tucker’s comments at paragraphs 10 to 17, which set out guidance on how lawyers ought to go about pleading cases, are likely to be most helpful. I have attempted to distil that guidance here.

1. Claim forms (and, it follows, their responses – see below) should not be seen as an opportunity to set out an exhaustive recitation of the facts. That is the job of witness statements – and pleadings should not read like witness statements. In particular:

Ideally, in a Claim Form, the author should seek to set out a brief statement of relevant facts, and the cause of action relied upon by the Claimant. The purpose of doing so is to allow the other side to understand what it is that they have done or not done which is said to be unlawful. It should be clear from the document (Claim Form) itself, within the brief summary of the relevant factual events, which facts are relevant to which claim, if more than one is advanced. The Respondent can then properly respond to that claim or claims.

2. Nevertheless, the Tribunal is not “a forum in which meticulous or unnecessarily pedantic pleading points should be raised”. Practitioners should not fear, notwithstanding HHJ Tucker’s guidance, that we are being encouraged to adopt a High Court-esque style. Rather, we are being encouraged to restrain ourselves slightly.

3. It follows that HHJ Tucker’s guidance should not be seen as encouragement of nit-picking by parties if a sparer style is (rightly) adopted. For example, arguing that a failure to set out precise factual detail renders a claim (or its background facts) defective is unlikely to be well received. Indeed, HHJ Tucker alluded to this at paragraph 14: 

I can understand where the temptation for adopting [a narrative style] has come from: a fear that a relevant fact might not be included and fear that a witness might be challenged in a hearing because a detail was not included within the claim. That can be managed: a document can make it clear that it sets out key facts; requests for further details of factual matters can be made; parties and representatives can remember that the purpose of the Claim Form and Response is not to exhaustively set out factual detail in the way a witness statement does, but to set out the claim.

No doubt it is, at least in part, the “fear” of nit-picking arguments that drives many employment lawyers to adopt the style complained of in this case. If we can refrain from making them, perhaps a more efficient style can be adopted.

4.One other reason why practitioners might like long pleadings is to set the scene for the Tribunal. However, that, it seems, is not always as helpful as we might think: “The narrative style of pleading makes the task of Employment Judges who need to case manage the case more difficult: it takes more time than may be available to properly identify the issues.” HHJ Tucker went on to say that detailed pleadings “do not necessarily assist a Judge”.

5. HHJ Tucker also identified that the confusion that can be caused by narrative pleadings can result in increased costs and valuable time being lost. She cautioned that “There may be a delay in the case being heard, because the parties are not clear precisely what issues are in dispute or consider that they have inadequate time to meet the case that is advanced against them, once they have understood it.

6. Equally, responses should be spare and precise. In particular, HHJ Tucker advises Respondents to “admit, not admit or deny the facts and claims asserted by the Claimant”. This sort of approach will be particularly familiar to civil litigators, but may feel alien to employment litigators, where it is relatively rare to see an ET3 or a Grounds of Resistance that precisely admits, not admits or denies each allegation set out in a Claimant’s particulars.

7. HHJ Tucker specifically recognised that this approach was the correct approach where both parties were legally represented, but that “Different considerations obviously apply where parties represent themselves and the documents are prepared by people who are not lawyers”. So it is not expected that litigants in person will have to apply the same rigid, legalistic style – although they should still refrain from excessive, voluminous pleadings.

One further risk of overly voluminous pleadings – although HHJ Tucker does not address it specifically – is the risk that one includes factual pleadings that turn out to be wrong. For example, as employment lawyers acting for Respondents, very often we take instructions from HR. they, in turn, may have taken their instructions from the business unit head, who has heard the story from a manager, who has been told what happened by his/her team member. It goes without saying how easily the story can get distorted by the time it is written into an ET3. Limiting the amount of detail in pleadings reduces the risk of having to walk back factual assertions made at an early stage that are, for whatever reason, wrong. 

There is also at least one instance I can think of where a narrative pleading may be of great value to the Tribunal. Where the Claimant’s ET1 (most likely drafted by a litigant in person) sets out a smorgasbord of confused, inconsistent or non-chronological facts, it may well be helpful if the ET3 and grounds of resistance sets out a clear, chronological summary of the facts so that the Tribunal understands them from the outset. That said, even in those circumstances I suspect it should be kept brief and, if possible, fairly neutral. 

Despite HHJ Tucker’s guidance, it likely to remain a fact of practice that employment pleadings are longer and more detailed than seen in the civil courts. In part, this is because of the different nature of employment litigation and the idiosyncrasies of the Tribunal process. In part it is because in order to identify claims, specific facts need to be set out. However, I am sure that many of us will recognise in HHJ Tucker’s complaints our own style of drafting – and perhaps now is as good a time as any to try to wean ourselves off the old style and embrace a sleeker, sparer approach.

The Employment Appeal Tribunal’s decision in C v D UKEAT/0132/19/RN can be found here.

Andrew Watson, who co-edits this blog, appeared for the Claimant in her successful appeal in this EAT decision (but was not involved in earlier stages of this case). 

This article was written by Tim Goodwin, a tenant of 12KBW.

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