UK: How To Approach A Concession In Civil Litigation

Last Updated: 22 February 2013
Article by James Chegwidden

When can a party be said conclusively to have conceded a point? How should lawyers deal with concessions or apparent concessions? And what should Tribunals (and lawyers) do where a concession made on a point of law is simply wrong? These questions faced the Employment Appeal Tribunal in Ségor v Goodrich Actuation Systems Limited1. Its judgment sets down the approach to take, especially where the party apparently conceding a point is unrepresented. The procedure recommended to parties and lawyers finding themselves in this position is likely to become best practice in such situations in future.

Concessions generally

As is elementary, a claimant in civil litigation bears the onus of proving its own case. To do that, a claimant has full freedom to frame her own case as she sees fit. The same applies to a defendant who enjoys the right to frame her defences as she considers best. If after framing an argument an advocate perceives that one or other of her own submissions is wrong, she is at liberty at any time to withdraw such a submission, right up to the moment of judgment and even after a case has been reserved (though of course, late withdrawal may have costs implications in some cases). Indeed, occasionally she may be duty-bound to do so, as failure to concede an obviously-doomed point could expose the client to a possible costs order. A Tribunal, in turn, is ordinarily expected only to deal with issues that are still "live" in a trial at the end of the evidence and submissions, and so usually an abandoned element of any party's case will not give rise to the need for any ruling.

The problem

What happens, however, when the other side appears to concede a point? Is an opposing advocate entitled to note the fact of the concession and submit that the Tribunal (and the conceding party) must abide by it? Or is there something else required by the Overriding Objective, particularly when the conceding party is an unrepresented litigant? Here, the position has, till now, been less clear in practice.

In Ségor, the claimant, who had managed her own case and appeared only with a lay representative, was accused of abandoning, at the final hearing, the key plank of her case. The claimant complained of nationality discrimination, a matter which had been fully admitted by the employer (the employee was French and was unambiguously rejected for a particular managerial position on that basis). The only grounds of resistance put forward by the employer - which worked significantly with the US Government on military contracts - was that it was acting "pursuant to an enactment" by rejecting her (s.41 RRA 1976). This was, however, a weak defence given that the 'enactment' it sought to rely on was a US statutory instrument, and, to make things even starker, had by the time of the discrimination in question been amended so as not to exclude French nationals from US military projects.

The case - otherwise likely to be a hands-down victory for the claimant - became controversial when it appeared to respondent counsel, towards the end of a protracted series of hearings, that the claimant and her lay representative had done the unthinkable and abandoned her argument that the application of a discriminatory US law on her in the United Kingdom was unlawful under the Race Relations Act 1976 (now, Equality Act 2010). This perceived concession had never been made in express terms, but was thought to be the result of a morning of confused exchanges between the claimant's lay representative and the employment judge, and one comment of the claimant herself in evidence that she "could accept" the situation if the US law genuinely did prevent her from working on US projects.

The respondent argued that a concession had been made, and submitted that the Tribunal must accept such a concession and decide the case accordingly - albeit that, if the concession were accepted, the crucial plank of the claimant's argument would vanish. The Tribunal agreed, and dismissed the claimant's case - now with almost no content - and awarded costs to the respondent for what had now become, on its view, an unnecessary and wasted hearing. As if, however, to indicate its profound bafflement at what had happened, the judge recorded that he found the claimant's concession to be "surprising".

The claimant appealed (with assistance from the Bar Pro Bono Unit).

The answer: a three-fold test

The Employment Appeal Tribunal upheld Ms Ségor's appeal. It disagreed with the Tribunal's approach of accepting quite so easily that a concession had been made. Instead, it insisted that the Tribunal would have to be properly satisfied that such a concession was "clear, unequivocal and unambiguous" before it could accept it. Langstaff J commented as follows:

"A Tribunal will always want to take care where a litigant ... seeks to concede a point or to abandon it. It may be a matter of great significance. Though it is always for the parties to shape their cases and for a Tribunal to rule upon the cases as put before it, and not as the Tribunal might think it would have been better expressed by either party, it must take the greatest of care to ensure that if a party during the course of a hearing seeks to abandon a central and important point that that is precisely what the individual wishes to do, that they understand the significance of what is being said, that there is clarity about it, and if they are unrepresented, that they understand some of the consequences that may flow. As a matter of principle we consider that a concession or withdrawal cannot properly be accepted as such unless it is clear, unequivocal and unambiguous."2

In situations where the point that the party was conceding was potentially an extremely strong one or even the decisive point in the case (which Langstaff J designated as "a watershed or 'Oh my gosh' moment"), the EAT highlighted how careful the Tribunal would have to be:

"the test by which the Tribunal's approach should be judged is ... whether the material before it was enough for it to soundly reach the conclusion that there had been a clear, unambiguous and unequivocal concession or abandonment of part of the claim. In situations in which a Tribunal faces the suggestion that that is what has happened, or thinks it might have done, it must take care to ensure that each of those three words is examined, and that the case put by the Claimant is properly understood; if necessary, having it reduced to paper and agreed as such by the advocate or Claimant at the time."3

On the facts of the case, the EAT held that the concession alleged to have been made had in fact not been made in terms that were sufficiently "clear, unambiguous and unequivocal" so as to entitle the Tribunal to treat the point as abandoned.

Analysis: some clarity, some darkness

Following Ségor, an advocate's task in concession situations is twofold:

(i) Confirmation: has a concession been made?

(ii) Reliance: if so, can I rely on it?

The judgment in Ségor solves the problems arising at Stage One. It is not now enough for advocates simply to take an opponent's concession for granted: where there is doubt it will be necessary for the purported concession to be made clear, if necessary by reducing it to writing. Langstaff J's "if necessary" refers probably to the situation where both parties are represented. Where a party is, however, an unrepresented litigant, more care must be exercised.

Relying on concessions

The EAT did not, because of its finding on Stage One, need to rule on Stage Two, but nothing appears in the judgment to suggest that a concession made clearly, unambiguously and unequivocally cannot or should not be accepted.

However, it may be that one species of concession may not be acceptable - no matter how clearly it is made. This is where the point conceded is one of law, and the concession is wrong as a matter of fact. To use an extreme example, if a respondent's advocate were to concede in an unfair dismissal case that "gross misconduct can never, as a matter or law, justify a summary dismissal" it is unlikely - indeed impossible - that a Tribunal could consider itself entitled to judge the case on that basis just because the parties both shared a mistaken view of the law. Instead, in such a case a Tribunal would likely have to treat such a concession merely as a submission, and decide the case on the correct basis, irrespective of the understanding of the parties. In practice, if and when this feasible, a Tribunal ought probably to make to make its own position clear to the parties, so that both parties have a chance to address the Tribunal on the point concerned and are aware of the understanding of the position adopted by the Tribunal on the point of law.

The 2008 case of Ritchie v Shawcor Inc4is a good illustration of this. In Shawcor, there had been an alleged concession from one party concerning the Tribunal's jurisdiction to determine a matter connected with TUPE legislation. The EAT considered that a Tribunal would still be bound to consider the question. Lady Smith said (at [26]):

"even if we had reached the conclusion that the Respondents had made some concession under reference to TUPE , that could not have had the effect of conferring power on the Tribunal to afford TUPE rights to the Claimant. Contrary to what was submitted by Mr Cowan, there is no rule that a concession on jurisdiction is binding absent exceptional circumstances so as to bar a court or Tribunal from considering the issue. The Tribunal would still have had to be satisfied that TUPE did in fact apply."

The effect of concessions

A useful way of looking at concessions is to consider their nature and effect. If the concession is one of fact only, then it is likely, following Ségor, that the concession can be accepted if made clearly, unambiguously and unequivocally. However, if the concession is one of law, and its effect would be, if accepted, to enlarge or restrict the Tribunal's jurisdiction; to restrict or annul the application of valid laws to the case; to fetter the Tribunal's obligation to rule on all relevant issues in the claim (whether agreed by the parties or not); or to require the Tribunal to adopt an objectively wrong analysis of the law (whether agreed by the parties or not), then following Shawcor, such a concession is unlikely to be able to be accepted since it would amount, if accepted, to a derailment of the Tribunal's obligation to decide the case properly and according to its powers.

Footnotes

1. [2012] UKEAT/0145/11/DM

2. ibid at [11].

3. ibid at [33].

4. [2008] UKEATS/0040/07/MT.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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