Jersey Unreported Judgments

[2007]JRC125

royal court

(Samedi Division)

28th June 2007 

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone

 

In the matter of the Representation of Lee John Jones.

And in the matter of an appeal pursuant to Article 94 (1) of the Employment (Jersey) Law 2003.

Representor represented himself.

Advocate D. R. Wilson for the Respondent.

judgment

the Commissioner:

1.        The Representor seeks leave to appeal against the decision of the Chairman of the Jersey Employment Tribunal made on 12^th March, 2007 ("the Decision") to refuse any further order for the production of documents or other evidence. Leave to appeal was refused by the Chairman on 23^rd April, 2007.

Background

2.        I set out my understanding of the background to this matter from the papers filed in the application and from the submissions made by the parties but being concerned only with issues of law I have heard no evidence and what I say below in relation to the facts is in no way binding on the Tribunal which alone will determine the facts when the case is heard before it.

3.        The Representor's employment with the Respondent as an "Independent Financial Advisor" or "IFA" working in Natwest International Personal Banking was terminated on 15^th May, 2006 when he was dismissed for gross misconduct.  On 11^th August, 2006, he filed a claim with the Tribunal for compensation for unfair dismissal and for breach of contract in relation to his bonus. This application relates to evidence in the bonus claim.

4.        In November 2005, the Representor's client relationship manager referred to him clients, who I shall refer to as Mr and Mrs X, who were seeking investment advice.  They had two million pounds on a fixed deposit with the Respondent maturing on 30^th December 2005.They accepted the Representor's advice that this sum should be invested with Prudential International.  That investment would earn the Respondent a commission of £125,000 of which the Representor would share some £37,500 under the terms of the bonus scheme. Under the terms of that scheme, if the commission was received by the Respondent before the end of 2005, the Representor would receive his share in February 2006.  If the commission was received in January 2006, then the Representor would not receive his share until 18^th May 2006.  It was a term of the bonus scheme that the Representor be in the employment of the Respondent on the payment date. 

5.        The Representor ascertained from the appropriate officer of the Respondent that the fixed term deposit could be broken and from Prudential International that if the investment was made prior to 30^th December 2005 then the commission would be paid prior to the 31^st December 2005.  The clients were happy to proceed with the investment before the year end if the term deposit could be broken. They completed the requisite application forms which were received by the Respondent on 21^st December, 2005, and submitted to Prudential International on 22^nd December, 2005.  Mr J. Gouge, head of NatWest International Personal Banking, then advised the Representor that he did not want the investment to proceed early.  He informed the Representor, inter alia, that NatWest International Personal Banking had achieved its IFA commission target for 2005 in the middle of November and that he wished the commission to be paid in the first quarter of 2006 so that it would count towards the commission targets for that year. In his statement Mr Gouge makes it clear that this wish on his part would not have overridden an express instruction from the clients.

6.        The Representor was instructed by Mr Gouge to go back to the clients informing them that this was the position which they accepted.  They did not challenge the decision of the Respondent and did not complain.  Whilst the Representor challenged the rationale for Gouge's decision he also did not complain as he would of course still receive his share of the commission only later in May 2006, although it could have been reduced if his personal target for the first quarter of 2006 had not been met.

7.        On the 22^nd December 2005, the Representor sent an internal email confirming that the funds were to be sent to Prudential International on the 30^th December 2005 "as per Mr [X's] request". He said that Prudential International had confirmed that the commission would not be paid until January 2006 ---"the first time this had ever been requested by an IFA!!"

8.        As it transpired the Representor was dismissed on 15^th May 2006 three days before the bonus became payable to him.  The Representor accepts that, at the time the decision to delay the investment was made, neither he nor Mr Gouge  had any inkling that  he would not be employed by the Respondent in May 2006, the issues which led to his dismissal having come to light in April 2006.

Orders for discovery

9.        The Representor sought discovery of his telephone conversations with Prudential International (which were supplied) and with Mr and Mrs X which were not.  There were a number of orders made by the Tribunal in relation to the discovery of documentation in relation to this and other aspects of the Representor's claim which I will summarise to the extent that they are relevant.

10.      On 12^th December, 2006 the Chairman made two orders for discovery which were in the following terms:

"1.       The respondent shall produce all material relating to the proposed investment of Euros 9.5 million with Ashburton and Norwich Union between January and April 2006 including transcripts of telephone calls, if available, otherwise audio versions, by noon on 3^rd January 2007.

2.        The respondent shall produce all material relating to the investment of £2 million by Mr and Mrs [X] in Prudential International between November 2005 and January 2006, by noon on 3^rd January, 2007".

11.      On the 18^th December 2006, the Representor filed details of his bonus claim (which had not been particularised before) and without setting it out here, it is the case that it is not apparent from those particulars that the Representor's telephone calls with Mr and Mrs X were in issue, the thrust of the Representor's case being that the Respondent had breached the terms of his Employment Contract by deliberately delaying the investment.

12.      The Respondent made discovery pursuant to these and other orders on 3rd January 2007.  The Representor was not satisfied with the extent of the discovery provided and upon application to the Tribunal the Chairman made the following further orders on 12^th January, 2007:

"(2)      The respondent shall provide to the complainant by 5.00 pm on 29^th January 2007 copies of emails and other correspondence and audio copies of telephone conversation between the complainant and (i) Mr Gary Millward and (ii) Miss Anna Pawlysn [employees of Prudential International] between 1^st December 2005 and 10 January, 2006.

(3)       The complainant shall provide to the respondent by 5.00 pm on 19^th January 2007 as detailed a list as possible of all materials which he believes the respondent has not disclosed pursuant to orders 1 and 2 made on 12^th December 2006."

13.      The calls with Prudential International as per the second direction of this order were supplied by the Respondent. Pursuant to the third direction, the Representor listed the materials which he believed he had not received from the Respondent which included the telephone calls with Mr and Mrs X.  The Respondent wrote to the Representor on 12^th February 2007 pointing out that it had made extensive discovery comprising hundreds of pages of documents and transcripts of some 35 telephone calls and that it believed it had complied with the requirements of the Tribunal's orders of the 12^th December 2006 and 12^th January 2007.  It accepted that there may have been additional telephone calls but said that it would ask the Tribunal to note the time and cost involved in retrieving and making transcripts of such calls and to consider the purpose for which the materials were being requested.  It described the steps that had to be undertaken in the telephone retrieval process and the costs involved.

14.      On 27^th February 2007 the Deputy Chairman of the Tribunal made the following order:

"3.       The Respondent shall not provide any further audio copies of telephone conversations between Mr Jones and its staff, customers or other advisers.  However the Respondent  is required to provide an affidavit to the Tribunal that it has endeavoured to recover all telephone conversations required and/or identified by Mr Jones to date and where it was successful, such audio copies of those conversations have been supplied to him in full."

15.      Pursuant to this order Helen Seaton, an employee of the Respondent, swore an affidavit on the 1^st March 2007 in which she confirmed that the Respondent had recovered all calls it had been ordered to disclose pursuant to the Tribunal's orders of the 12^th December 2006 and 12^th January 2007.  Implicit in that confirmation was the Respondent's belief that it had not been ordered to disclose the Representor's calls with Mr and Mrs X pursuant to the second direction given on 12^th December 2006.  Helen Seaton admitted that there were other telephone conversations which were capable of being retrieved but re-iterated the time and cost involved in that process.

16.      The Representor wrote to the Tribunal on 1^st March, 2007 maintaining that the Respondent had not discharged its obligations in terms of discovery and asking for the decision of the Deputy Chairman of the 27^th February, 2007 to be reviewed.  On 6^th March 2007 the Deputy Chairman ordered that there should be a further directions hearing before the Chairman on 12^th March 2007 for the issue of discovery to be reviewed and in particular for the Chairman to review the Deputy Chairman's decision not to allow any further audio copies of telephone conversations.  On that date the Chairman having had what were clearly very full submissions from the parties made the Decision which is the subject of this application and which is set out below in so far as it is  relevant:

"1.       I sat on 4^th December 2006 to determine a preliminary issue.  I sat for a directions hearing on 12^th December, 2006, and again on 12^th January 2007.  Mrs Santos-Costa, deputy chairman, sat for directions hearings on 27^th February and 6^th March 2007.  On 6^th March Mrs Santos-Costa ordered a further directions hearing before me on 12^th March 2007, referred specific matters for determination and also providing for me to deal with any other matters.  I gave my decision on 12^th March 2007 and said that I would provide a written decision, which this is.

2.        This case is taking too long to reach trial, and is in danger of becoming bogged down in irrelevancies.  I hope that the directions which I now give will clear the path towards a hearing date this spring.

.....

4.        The main point made by Mr Jones was that the bank has not fully obeyed the discovery orders which have been made; he says that there is material missing which would counter the bank's allegation that he acted dishonestly, which allegation formed part of the reasons for his instant dismissal; he also says that he has not been provided with transcripts of telephone conversation between him and Mr [X] which would demonstrate that Mr [X] was content for his deposit with the bank to be broken prematurely, provided no penalty would be incurred.

...

6.        There will be two issues for the Tribunal.  The first is whether Mr Jones' conduct in sending one or more emails to the relevant client stating that the client's money, apparently between 11 and 22 million euros, had been received by the bank, when it had not, as he knew.  The second is whether he had a contractual entitlement to a bonus, which I understood would relate mainly to the investment of that client's money.

.....

8.        I was not persuaded either that the telephone calls between Mr Jones and Mr [X] would be relevant, for the bank's position, if I correctly understood it, will be that there was no clear instruction from the client, and even if here was, it decided not to prematurely break the deposit and invest the money, because somebody senior to Mr Jones determined that this investment should not be effected until after the end of 2005.

9.        I therefore refused to make any further order for production of documents or other evidence.  In so refusing, I placed weight on the dangerous proliferation of documents in this case and the apparent widening of areas of argument beyond what is likely to be relevant.  Whilst I want for Mr Jones to have what he needs in order fairly to present his case, I must make orders which are proportionate, and must not allow what are called 'fishing expeditions', in which materials are sought more in hope than in expectation that they will be relevant.  I have read the affidavit of Helen Seaton, of the bank, and clearly the bank has been put to considerable expense and trouble in providing what has been provided; more material should only be ordered to be provided by the bank where it is clear that the material exists and will be relevant."

17.      The Chairman went on to specifically confirm that his second direction of the 12^th December 2006, namely that the Respondent should produce all "material" relating to the investment by Mr and Mrs X had been complied with.

The Law

18.      Article 94 (1) of the Employment (Jersey) Law 2003 ("the Employment Law") provides:

"An appeal on a question of law shall lie from a decision or order of the Tribunal to the Royal Court with the leave of the Tribunal or of the Royal Court."

19.      The test to be applied in an appeal on a question of law was set out by the Royal Court in Voisin -v- Brown [2007] JRC 047 at paragraph 18, namely that the Court has no power to interfere with the Tribunal's decision unless it can be shown:

"(a)     that the tribunal misdirected itself in law or misunderstood the law or misapplied the law; or

(b)       that there was no evidence to support a particular conclusion or finding of fact; or

(c)       that the decision was either perverse in that it was one which no reasonable tribunal, directing itself properly on the law, could have reached, or alternatively, was one which was obviously wrong..."

20.      It is clear from the authorities that the courts are wary of interfering with the exercise of any discretion by such tribunals particularly on an interlocutory application.  In Broere and Others -v- Broere and Others [2003] JCA 222 Birt, Deputy Bailiff stated at paragraph 2:

"I would normally be slow to grant leave to appeal on a matter of discovery.  Such matters are principally for the discretion of the court at first instance and, as Mr Thompson submitted in his contentions, leave should only be granted in such interlocutory matters where there is a clear case of something having gone wrong (see Glazebrook -v- Housing Committee (13^th November, 2002) Jersey Unreported; [2002/217])".

21.      I was also referred to the following passage from the judgment of Mummery J in the case of McAndrew -v- Chemical Bank a decision of the English Employment Appeal Tribunal given on 6^th July, 1994 -

"Having looked however at these classes of documents described in the letter of 31 March, we have reached the conclusion that, if the Tribunal had had the benefit of submissions from the Bank about the wide-ranging nature of discovery sought, no reasonable Tribunal would have made that Order.  We state again that discovery ought only to be ordered where it is necessary.  Otherwise, it is oppressive to the party against whom discovery is ordered.  It is oppressive to the Tribunal to have many documents produced which are not relevant or are of only marginal relevance.  Ultimately it is oppressive to the person bringing the case, because of the expenses and delay involved in making applications for wide-ranging discovery and in complying with them.  We agree with the approach stated by Mr Justice Wood in the case of Byrne -v- Financial Times that interlocutory battles of this kind should not be encouraged.  In fact, we go further and say they should be discouraged.  The important point in proceedings of this kind, whether for race discrimination or unfair dismissal, is to get the case on for hearing as soon as possible; to hear the evidence and submissions and reach a decision.  If it is found at the hearing that justice cannot be done without making further orders, such as for discovery, the Tribunal at the hearing is well placed to decide whether such orders are needed and, if they are, an adjournment can be granted for them to be complied with.

22.      The  power of the Tribunal to order discovery derives from Article 89 (1) of the Employment Law which provides that:

"The tribunal shall have, as regards...the production and inspection of documents ...all such powers, rights and privileges as are vested in the Royal Court and, without limiting the generality of the preceding provisions of this Article, may -

(a)       issue a summons to any person (including a party to the proceedings) requiring the person to appear at the time and place mentioned therein to testify to all matters within the person's knowledge relative to the subject or proceedings before the Tribunal, and to bring with him or her and produce any document, book or papers that the person has in his or her possession or under his or her control relative to such subject." 

23.      The general principles applied by the Royal Court when exercising its power under Rule 6/17 of the Royal Court Rules 2004 to order specific discovery are set out in the decision of the Court of Appeal in Victor Hanby Associates Limited and Hanby-v-Oliver [1990] JLR 337 and can be summarised as follows:

(i)        The party seeking discovery must show not only a prima facie case that his opponent has or has had documents which have not been disclosed but also that those documents must be relevant to the matters in issue.

(ii)       As to relevance, the court must be satisfied that the documents will contain information which may enable the party applying for discovery to advance his case, damage that of his opponent, or lead to a train of enquiry which may have either of those consequences.

(iii)      Even where a prima facie case of possession and relevance is made out, an order for specific discovery should not follow as a matter of course. The court will still need to ask itself the question whether or not an order for discovery is necessary for disposing fairly of the cause or matter.

24.      In general terms it seems to me that these would be the principles that the Tribunal would follow when dealing with an application for specific discovery but the parties disagreed whether in the context of the necessity for disposing of the case fairly the Tribunal should take into account the overriding objective ("Overriding Objective") set out in the Regulations, issued by the Chairman on 1^st October 2005 and which do not have the force of law, paragraph 1 of which provides:

"Overriding objective

25.      The overriding objective of these Regulations is to enable the Tribunal to deal with cases justly, which includes, so far as practicable:

(i)        ensuring that the parties are on an equal footing;

(ii)       dealing with cases in a manner proportionate to their complexity and importance;

(iii)      dealing with cases expeditiously and fairly;

(iv)      saving expense;

and it shall be the duty of the parties to assist the Tribunal in achieving its overriding objective."

26.      The Overriding Objective has been taken from Regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 which under English law do have the force of law and which require English Employment Tribunals to give effect to the same when exercising their powers. The Representor submitted that in the absence of an equivalent statutory requirement in Jersey, the Overriding Objective is irrelevant and should not be taken into account. I disagree. Even though it lacks the force of law, it seems to me that the Overriding Objective  sets out what in practice any tribunal operating under legislation of this kind will seek to do in order to deal with cases before it justly and it is helpful for parties before such a tribunal to have it set out clearly and openly. Accordingly in the context of the necessity for disposing of the case fairly or justly, and indeed in the exercise of its powers generally, the Tribunal should take into account the Overriding Objective.

Grounds of appeal

27.      Under the Representor's first and in substance only ground of appeal, he attacked the Decision in a number of ways which can be summarised as follows:

(i)        The Chairman did not appreciate the relevance of the telephone calls with Mr and Mrs X.  The investment "should and could have been executed on 22^nd December 2005, in accordance with Mr and Mrs X's previous instructions over the telephone with the Representor".

(ii)       The Respondent was in breach of its obligations to discover the calls with Mr and Mrs X under the terms of second direction of 12^th December 2006. The Representor submitted that the word "material" was all embracing and referred me to Mourant's letter of the 3^rd January 2007, written on behalf of the Respondent, in which it stated that the Chairman's decision was for "full disclosure". I was not addressed on whether the expression "material" has been defined legally. Mr Jones pointed out that Article 89 (2) of the Employment Law expressly provides that the word "document" includes information held in electronic form. He went on to submit that having made such an order the Chairman had no proper grounds for changing his mind.

(iii)      The transcripts of the calls of Mr and Mrs X would enable the Representor to respond to any attack the Respondent may make as to his credibility. 

(iv)      The Chairman's statement in paragraph 8 of the Decision that "someone senior to Mr Jones determined that this investment should not be effected until the end of 2005" showed that the Chairman misunderstood the law in relation to the powers of the Respondent to delay the investment.

Submissions of the Respondent

28.      Mr. Wilson, for the Respondent, divided his submissions into four issues, namely, credibility, relevance, proportionality and delay.  As to credibility he pointed out that it was not until the Representor filed his submissions on this appeal on 18^th May, 2007 that he alleged for the first time that Mr and Mrs X had given instructions for the deposit to be broken before maturity and the investment to be executed on the 22^nd December 2005.  There had been no reference to this in any of the earlier documentation filed by the Representor and before the Chairman on 12^th March 2007 he had asserted only that Mr and Mrs X were "content" to affect the investment at that time.

29.      As to relevance, he argued that even if there had been an instruction to this effect it would not give rise to a contractual right on the part of the Representor to a share of the commission under the bonus scheme.

30.      As to the proportionality he referred to the affidavit of Helen Seaton and to the sum of £10,000 in costs that the Respondent had already incurred in providing discovery and to the work and the costs involved in retrieving and transcribing telephone calls.  As to delay he pointed out that on average most cases before the Tribunal are completed within 6 months and that as a result of these interlocutory skirmishes, 6 months had already lapsed by the time the Decision was made.

My Findings

31.      It is clear from the Decision that the Chairman considered and understood the issues of relevance and necessity and in that respect took into account both delay and proportionality.  I can see nothing in his decision which indicates that he has misunderstood the law or the legal principles to be applied or has made a decision which can be described as perverse in that it was one that no reasonable chairman directing himself properly on the law could have reached, or alternatively, was one which was obviously wrong.  On the contrary it seems to me that the Decision was perfectly reasonable. In particular:

(i)        At the hearing before the Tribunal, the Representor will be perfectly able to give evidence as to his conversations with Mr and Mrs X. Whilst I am not determining issues of fact and I repeat that nothing I say in that regard should in any way influence the decision of the Tribunal when it deals with the Representor's claims in due course, it seems to me  from the submissions of the Representor, both orally and in writing, that there never was any formal instruction from Mr and Mrs X to break that deposit early (if they had the power contractually to do that unilaterally). Consistent with the way the Representor put his case to the Chairman on 12^th March 2007, Mr and Mrs X were "content" to proceed with the investment early if the deposit could be broken without penalty (See paragraph 4 of the Decision).  When informed by the Representor that it was not possible (because the Representor had been so instructed by Mr Gouge) Mr and Mrs X accepted the position without complaint.  I do not believe the Representor is or will be saying that notwithstanding this Mr and Mrs X were insisting that the deposit be broken - if that had been the case then that would surely have been communicated to Mr Gouge and it would be utterly inconsistent with the contemporaneous internal e-mail emanating from the Representor.  In that sense the Respondent would be right to say that it had received no formal instruction to break the deposit but merely an indication that the clients were content to do so if the Bank would not impose a penalty.

(ii)       It was not clear that the Chairman's second direction of 12^th December 2006 extended to retrieving and transcribing telephone calls made with Mr and Mrs X and it was reasonable for the Respondent, on the basis of the Representor's case as then put forward, to conclude that it did not do so.  It was accordingly also reasonable for the Chairman to find as part of the Decision that the Respondent was not in breach of that order.

(iii)      Although Mr.Wilson, before me, attacked the credibility of the Representor's submissions in relation to the "instruction", there is no indication that the Respondent will attack the credibility of the Representor's evidence as to his calls with Mr and Mrs X which it says are irrelevant in any event.

(iv)      The law in relation to the Respondent's contractual power to delay the investment was not before the Chairman for his consideration and, if relevant, will be a matter for the Tribunal at the hearing. In any event there is nothing to indicate that the Chairman misunderstood it to the extent it was ever referred to.

32.      The Representor had two further grounds of appeal.  The second ground of appeal, namely that the Respondent was in breach of his human rights and natural justice in failing to disclose copies of the telephone conversations with Mr and Mrs X was withdrawn in that the Representor accepted that it was misconceived.  The Representor's third ground of appeal was that the affidavit of Helen Seaton was misleading or deceptive in that no attempt had been made to retrieve the calls of Mr and Mrs X pursuant to the orders of 12^th December 2006 and 12^th January 2007.  He submitted that the affidavit created an illusion that a disproportionate effort had been extended to disclose the data already ordered.  However, Helen Seaton was entitled to take the view that the Respondent had complied with these orders and the Chairman made it clear in the Decision that he shared her view.  Accordingly, there is nothing misleading or deceptive in the affidavit.

33.      In conclusion I see no evidence that anything has gone wrong here and no grounds for this court to interfere with the Decision. I endorse the words of Mummery J. that in proceedings for unfair dismissal the important thing is to get the case on for hearing as soon as possible, to hear the evidence and submissions and reach a decision. If at the hearing the Tribunal finds for any reason that justice cannot be done without further discovery or other order then it can adjourn the hearing for that very specific purpose. Interlocutory battles are to be discouraged.

34.      Leave to appeal is accordingly refused.

Authorities

Employment Law (Jersey) 2003.

Voisin -v- Brown [2007] JRC 047.

Broere and Others -v- Broere and Others [2003] JCA 222.

McAndrew -v- Chemical Bank - EAT 299/94.

Victor Hanby Associates Limited and Hanby-v-Oliver [1990] JLR 337

Royal Court Rules 2004.