The number of solicitor advocates appearing before tribunals remains low. Judge Swami Raghavan outlines how advocates can shine in a tribunal setting, regardless of the jurisdiction.
Good advocacy is a bit like acting – it often passes unnoticed, and it’s not until you see it done badly that you appreciate how skilful professional actors are. Happily, in the tax tribunal, where I sit, my experience of solicitors and solicitor advocates has been overwhelmingly positive.
Represented appellants in tax cases typically instruct accountants or counsel. It surprises me that there are not more solicitors who are prepared to venture before the tribunal: however technical the underlying subject area is, the core task is, after all, one of evaluating evidence in order to extract relevant facts, and establishing the law to be applied to those facts. This is something solicitors through their training and experience have great expertise in.
I am conscious that not all of you will necessarily have practices which lend themselves to a star role in a tax case. I hope the following pointers will serve you just as well when appearing in other tribunal jurisdictions.
1. Do your homework on the relevant rules, practice and procedure of the particular tribunal you are appearing in.
There’s no point turning up with the White Book and littering your submissions with references to the CPR. You’ll fare much better by getting to grips with the rather more slim-line tribunal rules, and by making any applications with reference to those.
Bear in mind that there is a lot of commonality in the various sets of tribunal procedural rules, in particular as regards the overriding objective. So if there is a particular point of interpretation that arises on a procedural rule, don’t overlook the benefit of checking whether there is any authority on an equivalent rule in a different tribunal jurisdiction. Be clear that what you’re asking the tribunal to decide or direct is within its powers and be prepared to explain why it is.
2. Don’t trip up on simple matters such as correct form of address – your panel are more likely to be embarrassed rather than flattered if you shoot too high.
3. Be prepared for the level of formality to vary according to the case. In tax, we have different categories of proceedings ranging from informal ‘turn up and talk’ basic cases that are typically heard around a meeting room table, to complex cases heard in more formal courtrooms and that run much more like a formal court hearing.
Remember that although litigation in the tribunal is likely to be more informal than in the courts, you still need to keep an eye on the basics, such as making sure your questions to witnesses are relevant and that questions in examination-in-chief are not leading.
4. Talk to your opponent beforehand – the courtroom is no place for ‘blind dates’! Make sure you have enough time to broach with the other side any anticipated applications, and whether they can be agreed upon. Narrow down what is in dispute or at least agree a sensible order of play / timetable.
1. Check what the panel has had a chance to read beforehand. It’s unlikely that that it will be as intimately acquainted as you are with those lever arch files of documents that you have prepared, but that were plonked in front of it just before the hearing. If so, build in some reading time in the hearing timetable for the panel, or use your opening address to familiarise the panel with the key documents before launching into the evidence part of the hearing.
2. Don’t talk too quickly or rush your questions to witnesses. Unless you have organised and paid for transcribers to be at the hearing (which would be unusual except in more complex, evidence-heavy cases), it is up to the panel – typically the chair – to make handwritten or typewritten notes of the proceedings.
Pace your submissions and questions to witnesses accordingly. A witness box filled with paginated bundles of lever arch files is likely to be alien territory for most people, so remember to be patient with witnesses when turning up documents.
3. Don’t forget to engage with all the members of the tribunal. Even if the chair does more talking than the other members, the decision will ultimately be a panel decision.
4. Don’t assume that the tribunal will by some miraculous osmotic process absorb all the materials and authorities you’ve put before it. You need to draw out the relevant facts that you’re inviting the tribunal to find from the evidence it has heard. When it comes to case law, you need to clearly articulate what legal propositions you’re asking the tribunal to draw.
5. Remember that although it may not always feel like it, one of the benefits of live hearings is that issues can be addressed in a dynamic and interactive way that isn’t possible when dealing with matters on the papers. Be prepared for the panel to ask questions of you and your witnesses, but equally don’t be put off if the panel doesn’t have any queries.
Make sure your closing submissions do not simply rehearse what has been submitted before: they should take proper account of and refer back to points that have arisen on the evidence heard. If the other side have made further points, make sure you have made it clear to the tribunal in any reply whether you disagree with them, and if so, why.
Congratulate yourself. You’ve got another hearing under your belt. Advocacy when done well is, by definition, the culmination of a great deal of hard work and preparation. Rest assured that whatever the actual outcome, the panel will, even if it is not recorded in its decision, have been immensely grateful to have benefitted from the services of a good advocate.
Swami Raghavan is a Judge of the First-tier Tribunal (Tax Chamber) and a Deputy Judge of the Upper Tribunal (Tax and Chancery).