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Benjamin Gray writes for the Practical Law Employment Blog on Requests for further information: help or hindrance?
Inadequate pleadings are a common occurrence in employment tribunals. Problems can range from cases consisting of the barest generalities to documents containing such a morass of detail that it is difficult to know what the claim is really about.
The problem can arise irrespective of which side you are on. Such defects have to be overcome before trial to allow you to understand the case your client has to meet. The principle tool here is the Request for Further Information (RFI). It is commonly used, but its tactical considerations are often overlooked. Here are some key pointers to consider when thinking about whether to, and how to, make such a request.
Do You Really Need One?
An RFI may not be the right solution to a gap in the pleadings. A party need only provide enough information to allow the other side to understand the case. That is different to whether a lawyer can look at it and immediately discern what the dispute is about. The allegations made in an unclear pleading may nevertheless be entirely clear to your client (for example, because they were the subject of an earlier grievance). You need to look and see if there are other documents available that allow you to understand the allegations. If it is clear, plead to it and avoid making an RFI unless there is some element of ambiguity.
An RFI may also not be the most cost-effective way to get the particulars you want. Something that is unclear in the pleadings may become obvious in disclosure, and depending on the case there may be no harm in you waiting until disclosure to see if your questions are answered. Necessity is also an important rule of thumb when drafting an RFI. Focus on the questions that you need to know to respond to the case. That may well be less than what you would like to know.
Don’t Interrupt Your Opponent’s Mistakes
Tied to the issue of necessity is that a failure to give full particulars can often be because of an underlying weakness in the claim. Used properly an RFI can capitalise on your opponent’s mistakes by exposing them, forcing them down roads of twisted logic, and preventing them from having the wriggle room to make their case up as they go along later.
However, an RFI is not always the best way to capitalise on the other side’s mistakes. It risks alerting the other side to the weaknesses in their case and giving them an opportunity to fix them. They might not have done this if you had just kept quiet.
Think carefully about whether an RFI is the right approach for your case, or whether it is better to keep your powder dry. Use one only if you need to clarify the case in order to respond; if you need to tie the other side down to a particular version of events to avoid them wriggling out later; or where you are confident that the answer your opponent will give is likely to inflict further harm on their case.
The big risk of the RFI is that it can give your opponent an opportunity to expand their case in a way that would not have been allowed if they had made an application to amend. Focus your questions on specifics, and tie your questions to existing allegations. The traditional RFI format, which links questions to specific phrases and paragraphs in the pleadings, is helpful. Do not ask more than you need to tie down the other side’s story and enable your response.
Don’t Ask Twice
Sometimes an RFI will yield responses that do not clarify the case. The temptation is to try again, using either different questions or a different format.
By this point your opponent will have failed to particularise his case at least twice. There is no reason to think you or he will be third time lucky. If you need to get more information, seek a Preliminary Hearing to go through the queries orally. This is likely to get better engagement from the other side. The costs involved are offset by not wasting money on a further fruitless round of correspondence, and the challenges of dealing with an unclear case at trial.
Consider Seeking Examples
The claim may cover a wide range of incidents over a long period that would be costly and complex to litigate. In these circumstances, you may wish to consider seeking examples of the matters complained of, rather than demanding particularisation of each and every single incident, with both parties agreeing the case will be limited to those examples.
Realistically, if those key examples are proved or disproved, it would likely be dispositive of the rest of the trial irrespective of whether the other allegations were pursued. There is little risk for the Claimant in limiting themselves to what they consider are their best examples, and there are significant cost and complexity savings for Respondents in confining the case to a smaller number of incidents.
Avoid the Scott Schedule
The broad and open nature is practically an invitation to expand a claim. Moreover, litigants in person often struggle to complete them properly. You risk ending up with a document that is even more dense and complex than the original pleadings.
Avoid using them unless you are sure that you can avoid these pitfalls – for example because the other side is competently represented. Make sure there is a box in it for you to identify whether any new information is truly part of the existing pleaded case.
As I said above, parties sometimes use RFIs to try and amend and expand their case by the backdoor. Parties often fail to object to this, and this risks waving through to trial allegations that would not have been allowed in by way of amendment. By the time you get to trial you may face an uphill struggle to remove these allegations.
When information comes in, assess it carefully against the Selkent criteria. If it falls foul of them and is beyond the scope of the Further Information ordered, then object in writing to the Tribunal as soon as possible on that basis.
RFIs are an important tool for an employment litigator. But they are more than simply questions to be fired off at the other side. Think carefully about whether you actually need one, ask no more than necessary and avoid giving your opportunity an opportunity to fix or expand his case.