Papering over the cracks

Law is not known for moving fast with the times. You only have to turn up at court and watch barristers in black robes and white wigs to realise that in some respects we are still very much in the 19th Century and only the fact that there are women in those outfits as well as men indicates any progress at all.

Nevertheless, there has been some progress, and the extent to which the legal profession has embraced technology is nothing short of astounding! Whilst the COVID lockdown forced the courts to embrace it much faster than it might otherwise have done, the fact that much of the technology already existed says much about their willingness to modernise as well as helping law firms to become, if not paper free, at least paper reduced.

Of course, with great power comes great responsibility. Paper documents can get lost in the post, but emails can get lost in any one of a number of ways. They can accidentally go into junk. They can easily be deleted in error. They can be confused with other documents and they can be misfiled in computer systems and never seen again.

If I think back to pre computer days (yes, despite appearances and behaviour to the contrary, I really am that old) law firms traditionally had a system for dealing with post. It all arrived in one central place in the office and was opened by a group (usually a couple of partners with the help of a number of juniors) who would date stamp it, list it by hand and then distribute it around the office. This meant that it was practically impossible for any fee earner to be up to no good (the partners saw all the post) and it was practically impossible to say that you hadn’t had something if you had (because the manual list would show every piece of post that had arrived in the office over a given period) and you couldn’t even argue that it had arrived late, because it was date stamped.

So if the Court said that they’d sent you something, and you said you hadn’t received it, or it arrived much later than it should have done, you had irrefutable proof one way or the other. With technology, if the courts or the other side say they have emailed you something, and you say you haven’t received it, it’s unlikely that you will be able to prove that that is the case.

Take, for example, the recent case of Elhallabi V Avis Budget UK Limited, where Mr Elhallabi wanted to appeal against a decision of an Employment Tribunal. He had to ask the Tribunal to provide written reasons for having rejected his claim, which he did within the required time. However, this didn’t arrive in time for him to submit the appeal, so he proceeded without it, explaining the reason why this document was missing – so far, so good. Where things went wrong is that when the Tribunal did send out their reasons, Mr Elhallabi didn’t see it in his inbox and by the time he realised and sent it on to the EAT he was out of time. Nevertheless, the EAT allowed him to proceed, finding that the delay was largely attributable to the delay by the Tribunal in sending out the reasons in the first place.

Of course, you can’t always rely on Courts and Tribunals being so accommodating, so the best advice is to always be proactive. If you are waiting for the other side or the Court to do something, it can sometimes be tempting to just sit tight and do nothing, and hope that the case is going to go to sleep. It does happen. However, there is a risk that if something has been sent to you (such as a notification of a hearing date) and you don’t receive it, the process can proceed without you, and your ability to hide behind “I didn’t know” may be limited, especially if it was sent to you (allegedly) by email! If in doubt, call the Tribunal or the Court and keep a record of who you spoke to and when.

Kleyman & Co Solicitors. The full service law firm. Good advice in hard and soft copy.