When I’m moonlighting – a day as an employment judge

11 Dec 2012

An unregulated pro bono representative for a discrimination claimant turns up at tribunal intoxicated.  We don't keep a breathalyser handy and can hardly say, like a character in a bad costume drama, "You, sir, are drunk".  (Apart from anything else, there is always the risk of the reply, "And you, sir, are ugly; but tomorrow I shall be sober".) 

So we decide to press on, in the hope he had merely had an unfortunate whisky spillage accident and had got dressed in the dark; or that he will sober up.

Our hope is misplaced; but what does happen is that it becomes obvious the claimant needs an interpreter.  We keep asking the drunken representative, who shares the claimant's mother tongue, whether an interpreter might be a good idea.  He doesn't really respond, except by talking to the claimant, who is being cross-examined at the time so shouldn't be spoken to by his representative in any language, in a loud stage-whisper he seems to think we can't hear. 

Eventually, we have to adjourn to another day when an interpreter will be present.

Because the representative is acting pro bono, we have no power to award costs against him.  Were a costs application to be made against the claimant (one isn't) I doubt we would grant it because the claimant appears to be as much a victim of his representative's incompetence as the respondent is.

If there is a lesson to be learned, it is that it can be in a party's own interests to assist the other side.  Taking no steps to help (e.g. suggesting the other party gets an interpreter), meaning a trial has to be abandoned, is potentially a good idea tactically only if you are confident of obtaining a costs order; and I am not sure one can ever be confident of this in a tribunal.


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