The danger of thinking aloud

Jiminez v Southwark LBC (CA TLR 1 May)

It is helpful to the parties where the bulk of the evidence has been heard, for a tribunal to give an indication of its preliminary views so that the submissions yet to be prepared and, if thought fit, further evidence could be properly focussed on the tribunal’s concerns. Even a strongly expressed view could be a provisional view, leaving it open to the party criticised to persuade the tribunal as to why that view was wrong and why the party’s conduct was justified. Of course, the more trenchant the view, the more the attachment of the label ‘preliminary’ might need scrutiny to see whether the view was truly preliminary and not a concluded view. Tribunals who choose to indicate their thinking before the hearing is concluded should leave the parties in no doubt that such expression of view is only provisional and that the tribunal remains open to persuasion.