Wilsons Solicitors

Strange though it sounds, tribunals were invented because of a belief that the law and lawyers should be kept out of certain disputes. Various categories of disputes were therefore to be taken out of the normal court system and given their own system of tribunals where the lawyers would be kept out.

That was the theory at least. In practice it never worked out that way. The reason why is a combination of two things.

Firstly, if a party to a dispute is a large organisation anyway then they probably employ lawyers somewhere in and amongst their staff, and these lawyers will naturally as part of their job advise the employer about disputes, and therefore to an extent it's quite natural to send the same people along to tribunals to argue cases for them whenever necessary.

Secondly, there is of course the innate conservatism of the legal profession, which simply does not like the idea of any sort of alternative court system being set up with the idea of keeping them out. Lawyers are very good at defending their patch and therefore encourage employers to see things this way, and to keep employing the men in wigs.

On the little man's side of the fence, the government when invented tribunals tried to ensure that they would keep the lawyers out by providing that there was going to be no state financed legal aid for tribunal cases. This meant that, as many people could not afford to hire lawyers on a private fee paying basis, they had to go unrepresented.

More recently however we have seen the growth of 'no win no fee' services being supplied by lawyers to tribunal claimants. The result of that is that more often than not nowadays, if you ever go to an tribunal to watch, what you will see is a lawyer on one side and a lawyer on the other, just the same as if it had been in a court.

So most tribunals are run by lawyers, and lawyers like what lawyers like, and so tribunals have tended to end up looking more and more like courts. Simultaneously the courts are losing a lot of their pomp and palaver anyway, so they are ending up looking more and more like tribunals. So sometimes in practical terms whether a case is heard by a court or a tribunal makes not very much difference at all.

However there is another aspect of this original intention to keep the lawyers out, which still has a practical effect today, and this is the costs rules that apply in tribunals. If you go to court you can usually expect that if you win the case the opponent will be ordered to pay your costs for you, and equally if you lose it, you'll be on the receiving end of such an Order. In tribunals it does not work that way.

Tribunals tend to work on the basis that everybody will pay their own legal costs, whether they win, lose or draw. The aim of this is to make it expensive to go to a tribunal, and therefore hopefully encourage people not to bother with lawyers, which fits in with this original idea of keeping the lawyers out.

This original no costs principle still applies today. To a certain extent it has been whittled away at the margins by provisions that allow tribunals to make costs order in the case of particularly stroppy or ill conceived cases or defences being made by people who are really just exploiting the fact that they can have a free pop at somebody without much trouble because of the no costs rule. But these very limited provisions for costs are very rarely used in practice.

So in practical terms it remains the case that if you take or defend a case at an tribunal, unless you are very lucky indeed you are not going to get any legal costs awarded to you, and therefore whatever it costs you is always going to come out of your own pocket at the end of the day.

The no costs rule has another consequence, for claimants at least, which is that you can very easily in a tribunal end up winning an award from the tribunal if you win the case, but still end up with nothing in fact because all of your award gets swallowed up in legal fees.

The magic phrase 'no win no fee' often attracts people into lawyers' offices to take tribunal cases, but what that magic phrase does not make clear is what happens if you do win.

In court cases by and large you still don't end up paying any costs even if you do win because the opponent that pays you your compensation also pays you your legal costs as well. In tribunals however, because of the no costs rule, it's different. If you win you have to pay your own legal costs out of the compensation that you have been awarded. That means that, depending on how much you have been awarded and how hard a battle it has been to get it, you could very easily end up with literally nothing to show for your trip to the tribunal, or having to pay more than you have won.

Some people don't mind this at all. For many people taking a case, be it to a court or tribunal, or anywhere else, is a matter of principle, rather than the money, and indeed there are even some people who regard all talk of money as sullying the great cause for which they are fighting. But whichever way you see it, it's important that you understand precisely what the score is before you set off down the road of battling something out at a tribunal.

There is, as they say, very rarely 'owt for nowt', and wherever it is, it certainly isn't in the tribunals.

You rarely get the choice of whether to have a case heard in a court or a tribunal. The choice is made for you dependent on the type of dispute it is. Some types of dispute are heard in court, some in tribunals, there is rarely a choice.