Hello everyone. Simple question: Is there in existance a protocal or guidance as to what should appear or should not appear in statements of full written reasons. For example, would it be proper for a chairperson to include his or her opinion as to the honesty of the representative?

In what way? Do you mean, if the rep gives evidence on behalf of the appellant?

The reps honesty/reliability might be an issue but only in rare cases, I'd have thought.

For instance a chair once told me a story about a case he'd heard where at the outset the rep was asked whether she'd obtained any medical evidence. The rep said she hadn't. In the course of the hearing the claimant was adamant that she had mentioned a certain aspect of her disability to one of the doctors who had examined her. There was no reference to this in any of the reports in front of the tribunal, and under questioning it emerged that the claimant was talking about a doctor who had been commissioned to do a report by the rep. Faced with this, the rep produced from her file a very unsupportive medical report she had commissioned. Not surprisingly, the tribunal were very sceptical about everything else the rep had said to them.

That's obviously an extreme case where the rep had deliberately lied to the tribunal, and in such a case it might be appropriate for the tribunal to record their views on the rep.

What wouldn't be appropriate would be for the tribunal to say "Mr X has a habit of representing clients who have completely hopeless cases and making wildly exaggerated claims about the level of their disbility and therefore we don't beleive him in this case", or, in the case of the rep in the case above, "Ms Y has lied to the tribunal before and therefore we don't believe her in this case". I think any dishonesty or impropriety on the part of the rep would have to relate to the specific case they were looking at.

Even then, I can't see that the reps honesty would often be an issue. Since we're not generally going to be witnesses making statements of fact our honesty doesn't really seem to arise. Other than concealing or fabricating evidence I don't think we have much opportunity to be dishonest. If the client lies to us and we repeat what the client says, we're not being dishonest (however dubious we might be about the client's honesty)we're simply following the client's instructions.

This raises an interesting point, which goes off the subject somewhat. Protocol dictates that reps advise and clients instruct. On receipt of a medical report I send a copy to the client, the client phones me, I advise them whether the report is supportive or not and the client instructs me wheher to disclose it as evidence.

If the tribunal asked me if I had obtained any evidence then I would not lie but merely say "yes but none that we consider relevant". A tribunal could not force me or my clent to disclose evidence but would be free to draw any inference it liked on the back of that.

If my client had instructed me not to disclose a medical report and then changed his/her mind
at the hearing then on their head be it.

Although not involved directly with the issue in question, I believe the chairperson gave 30 lines of the FWRs to criticise the rep and basically took the time to call that rep a liar and that the rep had been warned about lying before. None of this was true and there was no record of previous warnings, no matter how misguided the chairperson was, and I am assured that they certainly were in this case. With regard to the case of Ms.Y. I do not believe that I would present a non helpful med report to an appeal tribunal, no matter how much of a "friend to the tribunal" I might be. A question comes to mind as to why the DWP, or other respondants to appeals, rarely, if ever, present helpful to the appellant Commissioners' decisions. Could this too be regarded as cheating? I think not. Ms. Y would have better responded that she had no evidence she wished to present rather than not having any medical report. A colleague of mine was accused by a lay wing member as being "selective" in the evidence he was relying on. My colleague responded by saying yes he was. At that point the Chairperson interviened to remind the lay memeber that that is what the rep was there to do, present evidence beneficial to his client. Maybe an issue for further debate I guess. All that said mind, is there any protocol or any guidance about what should or should not be included in FWRs?

Broadly, I'm with nevip on this one. In fact, I do not think that a chairman should ask a direct question of this sort to a rep, precisely because it demands a response from the rep's own knowledge, not from the case that he has been instructed by his client to present. And that is tied up with the fact that reps cannot normally be said to " lie" ,as they are speaking their clients' words, not their own. Of course , it's a different matter if the rep tells the tribunal something that he must know ( rather than suspects or guesses) to be false, or if he chooses to give evidence as a witness.
I suspect that difficulties arise in this area because tribunals can get used to seeing the same reps time after time, and come to see them as acquaintances rather than as people with a job to do! But legally qualified chairmen really ought to know the difference.

We had a discussion about this in our office recently and the first thing to remember is that we're not under any duty of disclosure. However, like you say, if you are asked directly if you have any further reports it puts you in a very difficult position. I think we came up with saying something like 'we've tried to obtain further evidence yes'. Tecnically this is not a lie. You've tried to obtain supportive evidence for your client and failed, because the evidence you got is not supportive. I have to admit that I've not tried this one yet and I'm not looking forward to having the opportunity!

I think it would be quite difficult for a tribunal to make too much of an inference if it became apparent that a report had been witheld. After all, the Tribunal would not know the reason why it had been witheld so wouldn't be able to make reliable conclusions as to what aspect of the case it may be relevant to.

So I can't think of many situations where it would be appropriate for a statement to record findings as to the honesty or otherwise of a rep and I think it could indicate hostility on the part of the Tribunal towards therep. This in turn could indicate that the client did not receive a fair hearing.

Slightly at a tangent, but have you seen this?

http://news.bbc.co.uk/1/hi/uk/4726907.stm

I don't know about being at a tangent. Seems very relevant to me. is there any reason why we can't quote this case in appeals to the Commissioners if we experience this sort of behaviour from Tribunals? I've certainly been on the receiving end of eye rolling, slumping back in the chair etc although I have to say its not happened recently. Sounds possibly relevent to Paddy's case.

I think the tangent is because this behaviour (1) could have influenced the jury, the decision makers on fact, and (2) would have been seen in public (very unlikely in a tribunal).

Even the prosecuting counsel in the original case gave evidence in support of the appeal:

"The prosecutor in Mr Bryant's case told the appeal court how Judge Medawar would "roll his eyes, shake his head, throw down his pen or interject with a comment" during the defence case."

Making the same case in relation to comments in a statement of reasons, issued to the parties after a hearing almost certainly in practice not held in public, seems like a very high hurdle to jump.

But yes, in spite of the difficulties making it stick, I think the same principles should apply.

I dare say that TAS have guidance on writing statements but it is not going to be statutory and not worth losing a lot of sleep over. The important factor is of course that that the statement must give adequate reasons for the decision that was actually made

It is perfectly open and legitimate for chairs to reach conclusions and give comment on the credibility of witnesses and for that matter, representatives, the questions you have to ask are:

1. Is it relavent to matter in hand?
2. Is the conclusion on credibility reasonable in light of all the evidence?
3. the conclusion will usually then be used to discredit the client's case..is this in itself reasonable? Has this only been used to discredit that evidence which the witness is responsible for or has it been used too far and effected the evaluation of other evidence? Is there a case to argue that the 'lie' has masked a genuine case?

As to the case with the rep and the unfavourable report, I support the view that there is no duty to diclose the report although by the same token the tribunal has no prohibition on asking if it exists. In lawyers circles such a report would be subject to legal professional privilage but this would not apply to voluntary organisations etc who would have to rely on confidentiality. The rep was very unwise to mislead the tribunal and this could have had more severe consequences in diferent circumstances. The appropriate response would be have been to state that the rep had instrucitons not to submit it as evidence. If this led to an adverse inference being drawn it would have to be justified in the written reasons and could well be open to challenge.