England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
COMMERCIAL COURT DIVISION
(MR JUSTICE COLMAN)

		Royal Courts of Justice Strand London, WC2
		28th July 2005

Thursday, 28th July 2005

1. LORD JUSTICE CLARKE: This an application by Mr Onwuka for permission to appeal against an order of Colman J dated 29th April 2005. By that order the judge dismissed the applicant's application for disclosure of certain documents from the court file. By the same order the judge ordered the applicant to pay the first defendant's costs of the application, such costs to be assessed. The first defendant is Mr John Thompson.
2. The application was made by the applicant in proceedings to which the applicant was not a party. The application is made under CPR 5.4(5). The applicant is not involved at all in the litigation in which the order was made.
3. The applicant was, however, represented before Colman J on the application for disclosure. He was represented by counsel, although today he has appeared in person. I will call the action in which he made the application the Glidepath proceedings, because Glidepath Holdings are the claimants in those proceedings. Mr Thompson is one of a number of defendants. They arise out of a multi-party joint venture agreement.
4. Those proceedings have taken up the time of the court in the past. Indeed, I myself delivered a judgment dismissing an appeal against an order of Eady J for costs in those proceedings on 19th April of this year. In the proceedings a number of allegations of fraud are made. Indeed a number of orders, including Norwich Pharmacal orders, were also made. This application is not, however, directly concerned with the issues in those proceedings.
5. The allegations in them relate, among other things, to the transfer of part of the business of a company called Spherion UK Limited ("Spherion") to a company called STA/Rel Q ("STA"). The transfer agreement contained an English arbitration clause and after court proceedings were initiated those proceedings were stayed by the order of Eady J on 30th July 2004 under section 9 of the Arbitration Act 1996. In this application I have seen both a copy of Eady J's judgment and indeed a copy of my own judgment.
6. Before the stay was imposed, a freezing order was made against Mr Thompson and, as I understand it, Norwich Pharmacal orders were made against various people. All those hearings were in private. Unsuccessful applications to discharge those orders were also made and indeed heard in private.
7. The applicant was employed by Spherion in February 2003. After the transfer to STA he resigned. He subsequently commenced proceedings in an employment tribunal seeking damages for constructive dismissal. There were, at one time, as I understand it, six respondents: Spherion Technology UK, RelQ Europe, Systems Testing Associates, Glidepath, Mr Loosli, and Spherion Corporation USA. However, as I understand it, Glidepath and Mr Loosli are no longer parties. The applicant tells me that he agreed to a proposal that Glidepath should be released from the proceedings because he was persuaded that they were not privy to what he said that Mr Thompson had been up to. He makes a number of serious allegations against Mr Thompson.
8. It appears that the issues in the employment proceedings are extensive. They have been on foot for some considerable time. Indeed, a hearing on the merits is now part heard. It has lasted 6 days, the original estimate being some 14 days. I understand that the applicant is now waiting for the case to be relisted. The hearing began on 16th May.
9. As I understand it, the purpose of the application to Colman J in the Glidepath proceedings was to obtain production of a number of court documents in order to assist the applicant, either in his proceedings in the employment tribunal, or in a High Court action in which an injunction has been granted against him which he seeks to set aside. He has told me that he is in difficulties in making an application to discharge the injunction because he has not, at present, access to public funding.
10. The basis of the applicant's case in the employment tribunal is that, first, he was unlawfully excluded from the transfer of an undertaking, which arose by way of the transfer of part of the business to STA in October 2002, and, secondly, that he was subject to adverse treatment on the grounds of his race.
11. The injunction proceedings had been brought by Spherion in January 2002. In those proceedings Spherion sought the return of a number of confidential documents which it was said that the applicant had misappropriated during his employment and retained. The application for the injunction was granted and indeed complied with by the applicant. That is the injunction which the applicant seeks to set aside in the future.
12. The documents which the applicant sought were documents in the Glidepath proceedings court file, in particular copies of judgments and orders. In fact, he has some of the judgments since they are in the bundle. It appears, however, that he does not have the orders.
13. It appears to me that the principal difficulty which faces the applicant is that he seeks these documents in order to advance either his case in the employment tribunal or his case in the injunction proceedings, or both. The ordinary and proper course in such a case is to make an appropriate application in the proceedings concerned.
14. The applicant says that he has made an application in the employment tribunal proceedings and he has referred me to a letter dated April 5th 2005 which is page 56 of the bundle. He told me that Mishcon de Reya, who represent Glidepath in the proceedings, would be content for the disclosure of the documents, or at any rate the order, provided that an appropriate tribunal or court made an order to that effect.
15. He accordingly informed the chairman of the employment tribunal of that fact, but unfortunately was only able to do so on about 13th May which was very shortly before the hearing began on the 16th. He told me that at that time it had been indicated to him that his application was too late. However, he also says that it may be possible now to make an application in those proceedings, given the fact that they are presently adjourned for a further date to be fixed.
16. It appears to me that if any application is to be made which is relevant to the employment proceedings, the appropriate tribunal before which the application should be made is the employment tribunal. It is really quite inappropriate to make the application under Rule CPR 5.4(5) in this action. The same would be true in relation to the injunction proceedings. It would then be a matter for the employment tribunal on the one hand, or the High Court in the injunction proceedings on the other, to decide what documents were relevant to the issues in those proceedings and to make an appropriate order.
17. The applicant complains of what he calls iniquity on the part of Mr Thompson. I am, of course, quite unable to judge the substance of that allegation, but the fact that he makes it may indeed be relevant in either of those tribunals reaching an appropriate decision.
18. To my mind, none of these considerations affords any realistic prospect of successful appeal against the decision of Colman J on the merits of the application. Colman J, as I understand it, heard the application on 29th April and indicated on that day that he would dismiss the application, but he reserved judgment and gave his reasons on 4th May. His reasons run to 35 paragraphs and include a careful analysis of the legal principles and a clear determination of each of the aspects of the case which was argued before him.

I should have said that Mr Thompson was represented before Colman J by Mr David Brook, instructed by Howell Jones and Partners.

19. I have considered with care the relevant principles set out by Colman J in that judgment. I can detect no arguable error in relation to any of them. Indeed, to my mind, none of the grounds of appeal which are suggested, either as to principle or on the facts, give rise to any realistic prospect that this court might be persuaded to hold that the judge was wrong.
20. The truth is that there has been disclosure of documents in the employment proceedings. As I say, the purpose of the application was to obtain appropriate documentation for use in those proceedings, and I can see no basis upon which it could be said that Colman J ought to have ordered the disclosure in these proceedings. It is not an appropriate use of CPR 5.4(5) to attempt to obtain documents to assist in a matter in another forum, at any rate unless it is both absolutely necessary and not possible to obtain them in that forum. That is not this case, and, indeed, it is not really suggested it is this case.
21. It appears to me that if the applicant was thus to obtain documents which he says are in the possession of Mr Thompson and which are relevant to the employment tribunal proceedings, he should make the application in those proceedings. In any event, I can see no realistic prospect of this court interfering with the decision of Colman J. It follows that the application for permission to appeal on the merits must therefore be refused.
22. However, the applicant also seeks to challenge Colman J's order on costs. Here the position is somewhat different. The point here is that an application was made for costs on the day of the hearing, as I have said, and Colman J simply said that costs should follow the event. One can well understand that. However, he did not order the applicant to pay any particular amount of costs on that day but directed that costs be assessed. As I understand the applicant's case, it is that Mr Thompson has not incurred any costs. It appears that his case is that, in truth, the costs were incurred not by Mr Thompson at all but by Spherion. No order was made in favour of Spherion by Colman J. Indeed, Spherion is, as I understand it, not party to the Glidepath proceedings.
23. If Mr Thompson has not incurred any costs, the applicant will not be ordered to pay any costs on the assessment. I can however see no basis upon which this court would hold that the order made by the judge, namely that costs should follow the event, was wrong either in principle or on the facts. So I could not properly grant permission to appeal.
24. The applicant also says that a relevant factor in deciding whether or not Mr Thompson has incurred any costs will be the freezing order, which I understand was made against Mr Thompson in the Glidepath proceedings. The point which the applicant seeks to make is, as I understand it, that Mr Thompson could not have incurred any costs because he was restrained from doing so by the freezing order. I have not seen the freezing order so I could not possibly say whether that is true or not. Indeed, it may well be that there is a permission in the freezing order allowing Mr Thompson to incur costs. It appears likely that in these circumstances the freezing order will be a relevant document for the costs judge to look at on the assessment.
25. However that may be, I reiterate my central point that any application for appropriate documents should be made in the appropriate proceedings, either in the employment tribunal proceedings or in the High Court injunction proceedings, but not in the Glidepath proceedings.
26. Finally, I would only add this: an application has very recently been made for permission to rely upon two further documents. The first is a letter from the United States Security and Exchange Commission, dated 14th January 2005, and the second is a letter from the Inland Revenue, dated 19th December 2003. They evidence ongoing investigations by those authorities. It is far from clear to me why those could not have been put before Colman J if they were thought to be relevant. In any event, I do not see that those letters could possibly have altered the view taken by the judge on these applications.
27. It follows that, while I am obliged to the applicant for his submissions, the application must be refused.

ORDER: application refused