Court of Appeal in Northern Ireland Decisions

1. This is an appeal by way of case stated by an Industrial Tribunal dated 4 September 1998 under Section 22(1)(b) of the Industrial Tribunals (NI) Order 1996 ("the Order of 1996") and Order 61 of the Rules of the Supreme Court (NI) 1980.

2. Originating applications were made by the three applicants/respondents ("the respondents") to an Industrial Tribunal under the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1996 ("the Rules of 1996") complaining that they had been unlawfully discriminated against by the three respondents/appellants ("the appellants") on the grounds that the appellants had acted against them, contrary to Article 63 of the Sex Discrimination (NI) Order 1976 ("the Order of 1976").

3. Jurisdiction to hear such complaints is conferred on Industrial Tribunals by Section 4 of the Order of 1996. Appearances were duly entered by the appellants stating that they intended to resist the applications on the grounds, inter alia, that the Industrial Tribunal had no jurisdiction to consider the complaints as they were not presented to the Tribunal before the end of the period prescribed by Article 76(1) of the Order of 1976.

4. Article 76(1) provides:-

5. Article 76(5) however provides:-

6. A chairman of the Industrial Tribunals listed the applications for a hearing to consider the following preliminary issue:-

7. At the request of the appellants' solicitors the respondents made discovery of documents on the preliminary issue. In turn the respondents' solicitors wrote to the appellants' solicitors seeking discovery of documents which were or might be relevant to the preliminary issue and, when discovery was refused, requested a hearing for directions to consider whether an Order for Discovery should be made. The hearing, at which the appellants and respondents were represented by counsel, was held on 15 May 1998 and by Order dated 20 May 1998 the appellants were required to grant to the respondents discovery and inspection of the documents set out in the Schedule thereto.

8. A summary of the contentions on behalf of the appellants and the respondents were set out in the case stated. The tribunal set out its findings of facts and its reasons. It accepted that in deciding the question whether it was just and equitable to extend the time limit for presenting the applications, the actions of the respondents and the actions of others in relation to them could be relevant. The way in which the respondents' actions were affected by the conduct of the appellants at that time could be relevant to the determination of the tribunal.

9. Rule 4(1) of the Rules of 1996 stated that a party could be required to grant discovery to another party. Both the appellants and the respondents were parties to the proceedings. The documents to be discovered were clearly linked to consideration of the just and equitable extension of the jurisdiction. For these reasons the Orders of 20 May 1998 (as amended) were issued.

10. The questions for the opinion of the Court of Appeal were:-

11. The Schedule provided for discovery and inspection of:

12. Mr M A P Grant, counsel for the appellants, argued that the Tribunal had no power to order discovery prior to the determination of the issue as to jurisdiction. He relied on Canada Trust Co and Others v Stolzenberg and Others [1997] 4 All ER 983 in which the Court of Appeal in England held that the High Court had an inherent jurisdiction to decide whether it had jurisdiction to try the issues in an action. Millett LJ at pp988, 989 said:-

13. He contended that as an Industrial Tribunal is a creature of statute, it has no inherent jurisdiction and accordingly no power to order discovery unless and until it has acquired jurisdiction. As the time-limit for bringing the applications had long since expired Article 76(1) of the Order of 1976 precluded the Tribunal from making an order for discovery of documents relating to the issue of jurisdiction. The Tribunal was confined to the hearing of reasons by the respondents which explained and justified the failure to lodge the applications within the statutory time-limit. The respondents alone had knowledge of matters which explained their failure.

14. He further argued that the documents set out in paragraphs 2 and 3 of the Schedule to the Order were not relevant to the preliminary issue and in any event were not discoverable.

15. Ms McGrenera, counsel for the respondents, contended that an internal inquiry was carried out as the result of written complaints made by the respondents against the second and third appellants and that the conduct of the investigations impacted on how and when the respondents proceeded with their applications.

16. They were parties to the preliminary issue and as such the Tribunal had power to make an order for discovery of documents relevant to that issue under the Rules of 1996. The documents in relation to the investigation were relevant and, therefore, discoverable for the fair disposal of the time-limit point.

17. She referred to Hutchinson v Westward Television Limited (1977) IRLR 69 in which it was stated that Tribunals have a wide discretion to do what they consider just and equitable in all the circumstances and are entitled to take into account anything they judge to be relevant.

18. She also relied on British Coal Corporation v Keeble (1997) IRLR 336 in which the EAT held that the discretion to grant an extension of time was as wide as that given to civil courts under Limitation Acts to determine whether to extend time in personal injury actions.

19. She argued that Article 76(5) of the Order of 1996 confers jurisdiction on an Industrial Tribunal to determine whether it is just and equitable to consider an application which is out of time.

20. We have already set out Article 76(1) and (5) of the Order of 1996. We consider it clear that an Industrial Tribunal has jurisdiction to determine whether it is just and equitable to consider an application made out of time and that the conduct of the parties to the application may be relevant to the determination.

21. Under Rule 4(1)(b) of the Rules of 1996 a tribunal may, on the application of a party ... make an order, as may be granted by a county court to require one party to grant to another discovery or inspection (including the taking of copies) of documents.

22. The County Court Rules 1981 provide by Order 15(1):

23. In our view the respondents became parties to the applications when they presented to the Secretary of the Industrial Tribunals their originating applications under Rule 1(1) and the appellants became parties when they entered their appearances under Article 3(1).

24. It is a question in the proceedings whether it is just and equitable to consider the respondents' complaints although made outside the time-limit prescribed by Article 76(1).

25. The conduct of the appellants is relevant to this issue and the documents set out in the Schedule (save for documents relating to any complaints made regarding the behaviour of the appellants, Clayton and Donaldson, towards female cadets other than the respondents) may be relevant to consideration of the issue and are discoverable.

26. Accordingly we answer the questions:-

27. We do not think it appropriate to re-draft the question listed for hearing as a preliminary issue. But we recommend that the following words should be added to the question listed for hearing, namely:-