A new fee earner joined our firm a couple of years ago. She has an agreement, going back many years, with a local hospital that she will not give the date of the tribunal to one of her established clients until the day of the hearing, as the client becomes aggressive and unmanageable in the preceding month. I am uneasy about this as we are not appointed to represent the client and I feel that we should not collude with the hospital in withholding the date.
I think that the hospital could apply under Rule 14 for the date to be withheld. Does anyone have any views?
Karen Wolton
Hi Karen
Working on the basis that the client knows there are tribunal proceedings ongoing, could I suggest that you ask the client whether he would be happy to only be told of the date hearing on the day, as has previously happened. If not, then you can take that back to the MHAA and give the Hospital Managers a short time to decide whether they intend to apply under rule 14, failing which you will tell him.
I was just writing a reply that was very similar to Ben’s. I agree that this is the best way of balancing duties of disclosure. Otherwise (unless we are talking about referral hearings), I would imagine the client would have a good idea that his hearing would be coming up soon anyway- that is, if he knows that he has applied and how long it takes to list? I would imagine taking instructions in advance of the hearing would also be very awkward if you were tip toe-ing around the issue of when the hearing is!
I agree Charlie,
I have had client’s who have expressly asked not to be told of the date to prevent any pressure building up/issues, especially when gate-fever may be a historic issue, but I am very cautious when taking this approach and liaise with the MDT. Ultimately the client needs to know the date and should be supported to work towards it rather than the date being withheld.
Thanks both.
The client constantly asks for the date and my colleague has previously been open with her that she is withholding it at the hospital’s request. I think we will have to give the hospital notice that we intend to disclose it to give them time to apply under rule 14.
Unless there is very clearly identified risk arising from P being given the date of his hearing, then I think you should give it to your client. Courtesy may be your only basis for permitting the RA a short time to consider their position but you definitely shouldn’t give them long.
Yes I agree- although it is quite a difficult situation as this had been accepted at my colleague’s previous firm for many years.