England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE EATRF 97/1594/3

Royal Courts of Justice

Strand

London WC2

Monday, 19 October 1998

B e f o r e:

LORD JUSTICE BELDAM

LORD JUSTICE HENRY

LORD JUSTICE THORPE

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NOORANI

APPELLANT/RESPONDENT

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MERSEYSIDE TEC LIMITED

RESPONDENT/APPELLANT

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR C SHELDON [Mr R Leiper - for judgment ] (Instructed by Messrs Mace & Jones, Liverpool, L2 0RP) appeared on behalf of the Appellant

MR J TAYLER (Instructed by Messrs Thompsons, Liverpool L3 9SW) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Monday, 19 October 1998

J U D G M E N T

LORD JUSTICE HENRY: This appeal concerns the everyday responsibility for the issue of witness summonses by Employment Tribunals (as they are now called). Mr Noorani is an Iranian and describes himself as black. He was employed from 6 December 1993 by Merseyside Training and Enterprise Council Ltd ("TEC") a company providing training and assistance with business start-ups. He was the contract manager in the business start-up department. He was dismissed for gross misconduct on 23 December 1994. As he had not been employed for two years, he had no claim for unfair dismissal, but he was able to seek damages for his treatment by bringing a claim in the Employment Tribunal ("ET") for racial discrimination contrary to the Race Relations Act 1976.

The "pleadings" in the application were full. Mr Noorani was then represented by the local law centre. His complaints against his employers were, as summarised by the ET, to be as follows. He claimed he had been mistreated by the TEC during his period of employment with them in that they had instituted unwarranted disciplinary proceedings against him on several occasions, resulting in his receiving unjustified warnings, an unwarranted demotion and eventually his dismissal. He also claimed the TEC had failed properly to deal with grievances and complaints he had made about his treatment. He alleged that the reason for receiving such treatment was his colour and race. He added the fact that he was victimised for having complained.

TEC by their notice of appearance denied all allegations of racial discrimination. They alleged he was dismissed for gross misconduct following two formal disciplinary warnings relating to his conduct and lack of performance. The gravamen of the complaints about his conduct related to his "aggressive, abusive and inappropriate behaviour". This behaviour consisted of aggressive and threatening remarks to TEC's management. The culmination came at the Christmas office party where he made unpleasant and threatening remarks about a number of his superiors, the most serious (and the last straw apparently) was what he said of the Chief Executive Linda Bloomfield. He said, as the tribunal found, that he would get her to pay attention to him if he took in a gun and he would "put her over a desk and rape her until she listened to him".

When the date of the hearing was originally fixed, Mr Noorani was represented by well-known solicitors. They had requested, and the tribunal had agreed, to set aside five days for the hearing from 13th to 17 November 1995. As the trial approached, Mr Noorani was acting in person. Three weeks before trial he wrote to the Court indicating that he wished to call no fewer that 36 witnesses and requested the Court to issue 32 witness summonses compelling the attendance of those witnesses. As will be seen, he later moderated this request to some ten. After correspondence which it will be necessary to examine in some detail, the Court issued just one witness summons. The trial date was kept. It was concluded in four days. Mr Noorani gave evidence himself and called his wife and Mr Yates, in respect of whom the single witness summons had been issued.

TEC called Mrs Wheeler, their personnel manager; Mr Newey their director of operations; and Miss Carr their purchasing manager. At the commencement of the hearing, the application for the remaining nine witness summonses was made and dismissed. No note of what happened survives. No-one can now remember the detail of what happened, nor could they be expected to.

The judgment of the ET was full and careful. It was seven pages and 49 paragraphs long. A summary only is required. A central issue was credibility. Mr Noorani had alleged a conspiracy against him. There had been a number of disciplinary meetings and discussions with him as to his conduct and his performance and what might be done to improve both. There were contemporaneous documentary notes of what had occurred in this meeting. He challenged the contemporaneous written notes relating to the disciplinary complaints and procedure. The tribunal did not believe him and accepted the note as being accurate.

As to his conduct, they accepted and believed TEC's witnesses. They found that TEC were justified in administering their written warnings and that his actions merited dismissal.

Their findings were (page 42):

"32. Mr Noorani alleged a conspiracy or 'network' as he described it between various employees of the TEC. He took issue not only with the specific allegations made against him but also with the accuracy of the notes of the various meetings at which they were considered.

33. Having heard the testimony of the various witnesses and having read those documents, our conclusion is that where there is a conflict between the evidence of Mr Noorani and that given on behalf of the respondents, we prefer the latter.

34. We believe there were grounds for the TEC justifiably to have administered the warnings which Mr Noorani received (subject to what is said below concerning the 'final written warning'), and that his actions on 16 December [the date of the Christmas party] did merit his dismissal. We believe the TEC handled his complaints and grievances throughout his employment in a perfectly proper manner and indeed did far more than many employers would do in their efforts to bring him back 'on track'."

They also found, in reliance on the evidence of Mr Yates, in respect of whom the witness summons had been issue, that one allegation of disobedience to Ms Dickinson's instructions was not made out, but had not been racially motivated.

In a balanced judgment, in which the criticisms did not go all one way, they were critical of TEC in two respects. First in two of the December disciplinary appeals, those appeals were presided over by individuals, Mr Newey and Miss Carr, who had made as yet unresolved complaints about Mr Noorani's conduct which had not yet been dealt with by disciplinary procedure. Second, the final appeal against dismissal had been heard by Mrs Wheeler and Mr Clayton jointly, and not by the "appropriate senior manager".

Having taken those matters into account, their conclusion was (page 44):

"47. On these 3 grounds [the criticisms of TEC's conduct] we believe the TEC's actions are open to criticism, to a greater or lesser degree.

48. However, we are still not satisfied that these actions amounted to race discrimination. We take particular note of the counselling and advice given to Mr Noorani throughout 1994 and the genuine and serous efforts made by the TEC to assist him through that period. We do not believe that any shortcomings in the procedures were a consequence of Mr Noorani's race or colour; we believe the TEC would have treated any employee in Mr Noorani's position in precisely the same way as they treated him.

49. Our conclusion, therefore, is that the respondents did not discriminate against Mr Noorani on the grounds of his race and accordingly his application is dismissed."

Mr Noorani then appealed to the Employment Appeal Tribunal. Such an appeal lies only on a point of law. The relevant point of law identified was:

"The Industrial Tribunal failed to grant witness orders in respect of those witnesses set out in the Applicant's letter to the Industrial Tribunal of the 7th November 1995. The evidence of the witnesses was relevant to the Applicant's case and witness orders should have been granted."

The facts in relation to the issue of the witness summons in detail were these. In his original letter of 21 October when Mr Noorani announced he wished to call 36 witnesses and requested 32 witness summonses, he sensibly summarised the ground that each witness could cover to enable the ET to assess, in the words of Sir John Donaldson in Dada v. Metal Box Co Ltd [1974] ICR 559 at 563D-E, "... the extent to which it is relevant".

The Court, not surprisingly, replied to that request by letter of 30 October signed by the regional secretary of Court Tribunals in this way (page 73):

"A Chairman of the Tribunals, to whom your letter was referred, has instructed me to write and say that the vast majority of the people in respect of whom you seek witness orders for, do not appear to be able to give evidence that is necessary for the fair disposal of this matter. Furthermore, this matter has been listed for 5 days on the basis of an express request from your former representative Brian Thompson & Partners Solicitors. It clearly will not finish in that period if such a large number of witnesses are to be called.

In the light of the above the Chairman would like you to re-consider your request."

Mr Noorani's response was (page 75, penultimate paragraph):

"... all my proposed witnesses will play a very important role in my defence, and it is vital I have the opportunity to establish doubt and prove my case."

No individual witness statements were sent to the Court. The Court replied by fax to that letter reminding Mr Noorani as to what they referred to as "the requirement of relevance". Mr Noorani was referred to the pleadings in the case, and the Court said in that letter (page 77):

"The major (although clearly not the only) allegations of discriminatory behaviour relate to the warning and the dismissal. Referring to the annexe to the Notice of Appearance, the relevant allegations against yourself are at paragraphs 13 and 17."

They were first the disciplinary meeting of 6 December when he was given his final written warning, and paragraph 17, his conduct at the Christmas party.

"Evidence relevant to this issue would include a statement from someone who witnesses the alleged acts of misconduct to the effect that they did not occur. From the list forwarded by yourself, there does not appear to be anyone falling into that category.

The same applies to the other allegations of discrimination. Is there anyone who you wish to call who will actually contradict anything in the Notice of Appearance? If so, in what respect? You should immediately inform us if there is such a witnesses, in order that further consideration can be given to a witness order."

They then urged him to be represented, whether professionally or not, at the hearing. Mr Noorani replied himself by fax on the same day that he would not be able to prove his case without calling all the witnesses, but requested nine on the basis:

"If you are not able to extend my case at this stage, perhaps the following witnesses could be called under Court Order until matters have become more clear."

A tenth was requested the next day, Mr Noorani then repeating that:

"... to prove my case I need witnesses that can confirm the discrimination I experienced from the inception of my employment and which slowly built up until my dismissal."

The court replied to those two communications by issuing a witness summons for Mr Yates, because it seemed that he could, as he did, destroy one of the grounds on which the final written warning was based, ie, his evidence went to an issue which was directly relevant, namely the conduct of Mr Noorani in a matter germane to the disciplinary proceedings. The Court then set out in some detail their grounds for rejecting the witness summonses in relation to the other nine witnesses.

The appeal to the EAT was heard on 17 July 1997, more than 18 months after the Employment Tribunal hearing. The Employment Appeal Tribunal allowed the appeal. They found first that the ET was wrong in law in finding that the evidence of at least two witnesses, Mr Iniabere and Mr Ahmed, were irrelevant, and they probably (it is not clear) made the same finding in respect of Mr Adekoya and Mrs Bold as well. They also found that the Employment Tribunal (because they formed the view that this evidence was irrelevant) had not exercised their discretion as to whether to issue a witness summons or not. This, they said, amounted to an error of law

In relation to it, they quoted what the Chairman had said in the letter written on his behalf in relation to Mr Iniabere's evidence:

"For the same reason as in Mr Adekoya's case, his evidence cannot be relevant."

They continued (page 16):

"So this was, it appears to us, not exercising a discretion, but saying to this litigant in person, 'This evidence is irrelevant'. The same applied to other witnesses in the case, for example of Mr Ahmed.

Now what is said by Mr Tayler [counsel for Mr Noorani] is this, that this ruling is quite plainly wrong as a matter of law. It cannot be said that the evidence of these witnesses is irrelevant. It might, if properly adduced and attended to by the Tribunal, still amount to absolutely nothing. It might not go to any of the issues in the case. But if, as the Applicant is saying, these are other fellow employees who have been ill-treated on the ground of race, discriminated against on the ground of race, by these same employers, during the time that Mr Noorani was employed by them, then it might very well be that if that evidence was properly substantiated and considered it would go a very long way to proving the Applicant's case that he had been discriminated against, that there was, as Mr Tayler put it, 'a culture of discrimination' or practice of discrimination. Of course, anybody with any experience of court or tribunal work would say, 'Well this is going very wide, it is going greatly to lengthen the proceedings. It is a source of regret if this has to be gone into'.

All those might very well be considerations in so far as discretion came into this matter and, of course, the Chairman did have a discretion. He was not purporting to exercise his discretion. It seems to us that here he was saying, 'This evidence is not relevant'. He had said in his previous letter, 'It is important that you should realise the importance of evidence being relevant', and it seems to us therefore that here was a litigant in person, not only being refused his request, but refused his request on grounds which were manifestly wrong in law."

Accordingly, the EAT was saying that the Employment Tribunal had a discretion, but they refused to exercise it.

Encouraged by his success, Mr Tayler on behalf of Mr Noorani invited the EAT to exercise the discretion which they had found that the Employment Tribunal had failed to exercise, and to issue the witness summonses (we do not know whether the application was in relation to all 32 or to a lesser number themselves) in the exercise of their discretion. They refused to do so in the following words (page 19):

"There was a suggestion that we, ourselves, should say that witness orders should have been issued. That is going, with respect, much too far. We are not in a position to substitute our discretion for that of the Industrial Tribunal.

We think that the proper course to take is to say that we allow the appeal to this extent. The matter will be remitted for a hearing in front of a differently constituted Tribunal and Mr Noorani must renew any applications which he wishes to make for witness orders and the Industrial Tribunal Chairman will deal with them in the way which he, in his discretion, thinks right. He may think it right to refer to what we have said as a possible method of proceeding, but at any rate we have no doubt that he will not repeat the errors of law which we have referred to."

So the EAT apparently recognised that another Industrial Tribunal might have a discretion to refuse to issue the witness summonses, and that the fatal error in this case, as they saw it, was the failure to exercise that discretion.

It is necessary to look in more detail at what the Employment Tribunal had done in relation to Messrs Adekoya, Iniabere, Ahmed and also Mrs Bold. Mr Noorani wished them to be called, as his reasons made clear, because they, so he alleged, had been badly or unfairly treated by their employers, TEC, and in all cases (other than Mrs Bold, as to whose race there was no evidence) had been racially discriminated against. In relation to Mr Adekoya and Mr Iniabere, Mr Noorani said that they were now being treated suspiciously well by TEC, presumably to influence their evidence. He did not, in the reasons he gave as to the extent to which their evidence might be relevant, allege that they could help at all as to how he himself had been treated.

The Employment Tribunal, in their letter of 9 November setting out their reasons for not calling the ten witnesses, dealt with each witness separately. The Tribunal, as we have already seen, had directed Mr Noorani to the important issues, namely his conduct and whether it merited warning and dismissal. They were right to do so. If Mr Noorani were guilty, as he was found to be, of the unpleasant and threatening statements made to his superior, and in particular in relation to the Chief Executive Linda Bloomfield, that conduct would reasonably be visited with dismissal, whatever the race of the employee committing that conduct. Hence the need to concentrate on that conduct. That was the view the ET clearly took at this pre-hearing stage, but of course, it was always open to them to have reconsidered it later if the need arose.

In relation to Mr Adekoya, they gave their reasons for not issuing a witness summons in his case in this way (page 82):

"You believe he will give evidence that he (Mr Adekoya) was discriminated against in that he did not get a promotion. If we were to hear such evidence it could only be on the basis that it tended to suggest that the respondents were 'generally' motivated by racial considerations - it would have no direct relevance to the claim brought by yourself.

Furthermore, to determine whether any relevant evidence could be given would involve the tribunal in effect determining a claim of race discrimination on Mr Adekoya's behalf (which he has not even made). This would be a 'trial within a trial' on a matter which does not relate to the main issues and we cannot countenance it.

The suggestion that this witness has been made a pay rise in order to discourage him from testifying for you is pure speculation and again is not relevant to the primary issues."

When that letter is read with the Employment Tribunal's letter of 7 November (page 77 already quoted) I can detect no error in the Employment Tribunal's approach. They were dealing with what they called "direct relevance", and making the point that what mattered was Mr Noorani's conduct. If he had acted in the way complained of, then he merited warning and dismissal. In these circumstances, allegations by other employees that they had been treated badly for reasons based on race were insufficiently relevant. This approach seems to me to be an example of the normal exercise of discretion when it comes to the issuing of witness summonses, namely whether, on the facts of any particular case, the evidence is sufficiently relevant or, as Sir John Donaldson put it in Dada, "the extent to which it might be relevant".

Let us take the position in Civil Courts. The courts have long recognised that relevance is a matter of degree for the discretion of the trial judge. Thus in Cross & Tapper on Evidence (8th Edition) at page 61:

"Relevancy is a matter of degree and it is as idle to enquire as it is impossible to say whether the evidence was rejected in the above two cases because it was altogether irrelevant, or merely because it was too remotely relevant. It may also, on occasion, require a balance to be struck between the probative force of the evidence and external pressure vitiating its use, such as the time likely to be taken in resolving collateral issues, the danger of manufacture, and sensitivity to private and public sentiment. These will be considered in turn.

(ii) Multiplicity of issues.

The judgment of Willes J in Hollingam v. Head contains a timely reminder that litigants are mortal, and Rolfe B once pertinently observed that:

if we lived for a thousand years instead of about sixty or seventy and every case was of sufficient importance, it might be possible, and perhaps proper to raise every possible inquiry as to the truth of statements made... In fact mankind finds it to be impossible.'

Evidence which might even by highly relevant in a protracted academic investigation is treated as too remote from the issue in a forensic inquiry because the body which has to come to the conclusion is controlled by the time factor, not to mention such considerations such as the danger of distracting the jury, and the undesirability of pronouncing upon matters which are not being litigated."

A modern affirmation of that rule was made by Lord Templeman in his speech in Ashmore v. Corporation of Lloyd's [1992] 2 All ER 486 and 493. Lord Templeman said how in an earlier case he:

"... warned against proceedings in which all or some of the litigants indulge in over-elaboration causing difficulties to judges at all levels in the achievement of a just result. I also said that the appellate court should be reluctant to entertain complaints about a judge who controls the conduct of proceedings and limits the time and scope of evidence and argument. So too, where a judge, for reasons which are not plainly wrong, makes an interlocutory decision or makes a decision in the course of a trial the decision should be respected by the parties and if not respected should be upheld by an appellate court unless the judge was plainly wrong."

He then went on to say (after a passage which I need not cite) at the bottom of the page at G:

"An expectation that the trial would proceed to a conclusion upon the evidence [that the party wishing to call are sought] to be adduced is not a legitimate expectation. The only legitimate expectation of any plaintiff to receive justice. Justice can only be achieved by assisting the judge and accepting his rulings."

I am satisfied, contrary to what the Employment Appeal Tribunal found, the ET were here exercising the classic discretion of the trial judge in the issue of witness summonses and in like matters. Such examples of such a discretion lie not only in the issue of witness summonses but whether to grant an adjournment or whether to order the trial of a preliminary issue etc. These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was "outside the generous ambit within which a reasonable disagreement is possible", see G v. G [1985] 1 WLR at 647.

The EAT view that the ET had never exercised their discretion at all was premised, at best, on a strange and pedantic construction of the letter sent on behalf of the Chairman. In relation to two witnesses (including Mr Iniabere) they had said that his and her evidence "cannot be relevant", but in both cases reference back was made to the grounds for not issuing a witness summons to Mr Adekoya. The point was made that the point raised did not go to the primary issues, but went to the collateral issue that the Employment Tribunal were not prepared to entertain.

It is clear to me that in indicating that they were not minded to issue witness summonses going to the collateral and subsidiary issue of whether other employers had been racially discriminated against, the ET were properly exercising their discretion, taking into account whether the likelihood that those subsidiary issues would affect the outcome. If the allegations as to his conduct were true, genuine and not trumped up, race was extremely unlikely to have played any part. If it was a conspiracy, as Mr Noorani says, matters might be different, but whether it was could be judged by the evidence that was called. If it were necessary to widen the ambit having heard that evidence, that was possible.

Such proactive judicial case management in the law courts becomes more and more important now that it is generally recognised that, unless the judge takes on such a role, proceedings become overlong and over costly, and efforts must be made to prevent trials being disproportionate to the issue at stake, and thus doing justice neither to the parties, to the case at point or to other litigants.

The position in relation to Employment Tribunals is a fortiori there intended to be relatively informal and inexpensive. Costs are seldom awarded to the successful party. Not surprisingly, there is no express fetter on the court's discretion to issue witness summonses, see paragraph 4(1)(a) of the Industrial Tribunal Constitution (Rules of Procedure) Regulations 1993. It has never been the position that any evidence that might be relevant must be admitted, see: Gorman v. The Trustees of St Clare's Oxford (unreported) Employment Appeal Tribunal presided over by Slynn J on 23 October 1980. In that case there was a familiar Employment Tribunal situation. The employee sought witness summonses for his employer's senior management to attend when they would be most unlikely to be able to add anything to the witness in middle management who was to be called in relation to deal with the issues on which the senior management could help. And, as that case makes clear, if during the course of the case it seemed that the original decision not to issue a witness summons might be wrong, then the Employment Tribunal can always remedy the matter, adjourning if necessary.

It follows that in my judgment the Employment Tribunal here did not make any mistake in law and exercised their discretion properly. The Employment Appeal Tribunal did not find that the Employment Tribunal had acted outside "the generous ambit in which reasonable disagreement is possible", nor, in my judgment, could they sensibly have done so.

I would allow this appeal and restore the decision of the Employment Tribunal.

LORD JUSTICE THORPE: I agree.

LORD JUSTICE BELDAM: I also agree.

ORDER: Appeal allowed; order nisi against the Legal Aid Board; legal aid taxation of the Respondent's costs; leave to appeal to the House of Lords refused. ( This order does not form part of the approved judgment )