Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REF: 36/15 FET

1336/15

5/16 FET

227/16

 

 

 

CLAIMANT: Ciara Kelly

 

 

RESPONDENT: K-Tec Automation Ltd

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the Tribunal is that:-

 

(1) It is ordered, that, following a review of the claimant's witness statement by the claimant and/or her representatives, taking into account the matters set out in this decision, the said witness statement must be amended, so that the maximum number of words does not exceed 12,000 words; and the said witness statement, so amended, must be exchanged with the respondent's representative by 5.00 pm on 14 June 2016.

 

(2) The claimant's claims did not require to be the subject of an application for an Order for leave to amend the claimant's claims to include, by way of remedy, a claim for compensation for personal injury and a claim for aggravated damages; but, the said claims are subject to further case-management directions/orders, as set out in this decision, for the presentation to the Office of the Tribunals of an amended response, the issuing of Notices for Additional Information and/or Discovery and Inspection by the respondent and replies thereto by the claimant in relation to such matters.

 

(3) The allegations by the claimant set in Paragraphs 8(h) - (l) and Paragraphs 9(g) - (k) of the amended statement of issues did require to be the subject of an application for an Order for leave to amend the claimant's claims. The said application is granted and the claimant's claims are ordered to be so amended; but the claims, as amended are, subject to the respondent amending its response and issuing any Notices for Additional Information and/or Discovery and Inspection and replies thereto by the claimant, in relation to the claims so amended, pursuant to case-management directions/orders, as set out in this decision, in relation to such matters.

 

(4) The allegations by the claimant, as set out in Paragraphs 28, 29; 71, 72; 96; 124; and 138 of the claimant's witness statement, also required to be the subject of an application for an Order for leave to amend the claimant's claims. The said application is granted and the claimant's claims are so ordered to be so amended; but the claims, so amended, are subject to the respondent amending its response and issuing Notices for Additional Information and/or Discovery and Inspection and replies thereto by the claimant, pursuant to case-management directions/orders, as set out in this decision, in relation to such matters.

 

(5) An amended agreed statement of issues, both legal and factual, is to be lodged in the Office of the Tribunals by 5.00 pm on 10 June 2016.

 

(6) The date and time of the hearing to determine the respondent's application for an Order for Costs of this hearing and the Case Management Discussion on 26 April 2016 and the claimant's cross-application for an Order for Costs of these said hearings, is to be arranged at the next Case Management Discussion in this matter, as set out in this decision, provided any relevant applications, in writing, have been lodged with the Office of the Tribunals in accordance with the orders/directions set out in this decision, by 5.00 pm on 15 June 2016.

 

(7) The respondent's application in relation to what further or other case-management directions/orders are required to be made by the Tribunal, in relation to the discovery of the claimant's medical records is adjourned to be further considered at the next Case Management Discussion in this matter.

 

(8) A further Case Management Discussion will be held in this matter on:-

 

17 June 2016 at 9.30 am;

 

to consider the way forward and to give such case-management directions/orders as may be required and necessary in the circumstances, in light of the orders referred to above and including a timetable for the preparation and exchange of the respondent's witness statements, the lodgement of trial bundles and dates for hearing, following the earlier adjournment of this matter.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Drennan QC

Appearances:

The claimant was represented by Mr B Mulqueen Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Worthingtons, Solicitors.

 

Reasons

 

1.1 Following a Case Management Discussion on 26 April 2016, as set out in the Record of Proceedings, dated 27 April 2016, this pre-hearing review was arranged and a Notice of Hearing, dated 28 April 2016, with both parties agreeing to short notice, was issued by the Tribunal to consider the following issues, namely:-

 

"(i) Whether the word-limit of the claimant's witness statement should be extended to 17,500 words.

 

(ii) Whether the claimant's claims need to be the subject of an application for leave to amend to reflect the claimant's claim for compensation for personal injury and/or aggravated damages and, if so, whether leave should be granted to the claimant to do so; but, if not required, what further or other case-management directions/orders, if any, are now required to be made to enable such matters to be determined by the Tribunal at a substantive hearing.

 

(iii) What further or other orders require to be made by the Tribunal in relation to the claimant's medical records."

 

1.2 During the course of initial discussion at this hearing, it became apparent, following the lodgement with the Office of the Tribunals on or about 28 April 2016, by the claimant, of an amended statement of issues, that the allegations set out in Paragraphs 8(h) - (l) and Paragraphs 9(g) - (k) gave rise to issues which required to be the subject of a similar determination to that set out in Paragraph (ii) of the said Notice of Hearing. Further, when considering the terms of the claimant's witness statement, it also became apparent that the allegations set out in Paragraphs 28, 29; 71, 72; 96; 124; and 138 of the claimant's witness statement also gave rise to issues which required to be the subject of a similar determination to that set out in Paragraph (ii) of the said Notice of Hearing. In the circumstances, both representatives properly and fairly agreed that determination of those issues should also be the subject of this pre-hearing review, in similar terms, amended as appropriate, to that set out in Paragraph (ii) of the said Notice of Hearing.

 

1.3 The amended statement of legal and factual issues, lodged with the Office of the Tribunals on or about 28 April 2016 by the claimant's representative was not agreed by the respondent's representative. During the course of discussion at this hearing, the representatives of the parties both acknowledged that, regardless of the outcome of this pre-hearing review, the amended statement of issues, both legal and factual, did not properly and fully reflect those parts of the claimant's second claim ( Case Reference Nos: 5/16 FET and 227/16) and, in particular, Paragraph 11 of the said claim form, insofar as it made a claim, by the claimant, for discrimination by way of victimisation. It has to be noted that an agreed amended statement of issues to reflect these matters was ordered to be lodged with the Office of the Tribunals by 22 January 2016, at the Case Management Discussion on 10 December 2015; but regretfully this was not done. I, of course, acknowledge this was at a time before the claimant's present representatives came on record on or about 11 March 2016. An agreed amended statement of issues therefore must be lodged with the Office of the Tribunals by 5.00 pm on 10 June 2016, to reflect the above matters but also the amendments to the claimant's claim, as referred to elsewhere in this decision.

 

2.1 In relation to the claimant's application to extend the word-limit of her witness statement from 7,500 words to 17,500 words, I note that, at the Case Management Discussion on 10 December 2015, it was ordered, by consent, that the word-limit should be extended to 7,500 words from the normal standard word-limit of 5,000 words. This was clearly to reflect an appreciation by the parties and their representatives that, given the likely issues in this case, the normal standard limit was not appropriate in the circumstances.

 

I remain very concerned that, although at the Case Management Discussion on 10 December 2015, the claimant's witness statement was to be prepared and exchanged with the respondent's representative by 18 March 2016, I understand that no witness statement had been finally prepared for exchange, when the claimant's present representatives came on record on 11 March 2016; and, indeed, it did not get finally prepared until after counsel had consulted on 23 March 2016. As a consequence, it was not exchanged with the respondent's representative until on or about 12 April 2016. Despite the foregoing, no application was made to the Office of the Tribunals before the said witness statement was served, for an uplift in the word-limit by the claimant's new representatives and/or for an extension of time for the witness statement to be served. At the Case Management Discussion on 10 December 2015, as is apparent from the Record of Proceedings of that hearing, it had been intended that all interlocutory proceedings would have been concluded by 29 February 2016, the agreed statement of issues would have been lodged by 22 January 2016 and therefore in good time before the preparation and exchange of witness statements by the parties. I have already referred to the difficulties in relation to the lodgement of a full and proper statement of issues. Although the interlocutory notices were issued by the parties in February 2016, again, replies, contrary to the terms of the Order, were not provided by the parties until April 2016. This breakdown in the Tribunal's case-management directions/orders was taking place, in the absence of any relevant application by either party's representatives, including for extensions of time, until on or about 12 April 2016. It is trite law to remind the parties and their representatives of the terms of the overriding objective and their duty to assist the Tribunal to give effect to the overriding objective; but also the orders, made by the Tribunal at a Case Management Discussion, are Orders of the Tribunal and require to be complied with by the parties. If application is required to be made, including for an extension of time, it must be done promptly and in accordance with the relevant Rules of Procedure. Given the above breakdown in the timetable, previously ordered by the Tribunal, these proceedings have had to be adjourned. Given that for a large part of the above period, the claimant had different representatives, who are now not before me, I do not know the precise reasons why many of these failures occurred. It may be, in due course, I will have to consider why these failures occurred in greater detail, not least in relation to the applications for Orders for Costs, which I have reserved to another hearing, as set out below. In these circumstances, I do not intend to say any more about these failures at this stage, save to note that a most unsatisfactory situation has arisen, in my judgment, which should not have occurred if the previous case-management directions/orders of the Tribunal had been complied with and/or relevant applications had been made to the Tribunal at an appropriate time.

 

2.2 In relation to the application for an increase in the word-limit to the claimant's witness statement, it was properly recognised, by the representatives, that, given that equal pay is no longer an issue between the parties, relevant paragraphs relating to that claim in the claimant's witness statement could now be removed, as these paragraphs are no longer relevant. The respondent's representative referred to Paragraph 109 of the said statement and questioned its relevance, given the claimant's claim of sex discrimination relates to pregnancy/maternity leave. He also questioned the necessity to include, in the claimant's witness statement, some of the 'introductory paragraphs' relating to the claimant's previous work history. I expect the claimant's representatives, as part of the review (see later) of the claimant's witness statement, to further consider whether these paragraphs require to be included or could be appropriately reduced/omitted. If necessary, following any such review, I will further consider these issues in any amended witness statement of the claimant, on foot of any further application in connection therewith by either party. Hopefully, that will not be necessary.

 

The respondent's representative, fairly and properly, recognised, given the issues in this consolidated matter that a word-limit, as previously agreed of 7,500 words, was no longer appropriate. He suggested a word-limit of 10,000 words - 12,500 words would be more appropriate and which, if granted by the Tribunal, would be a sizable reduction in itself from the present position in respect of the claimant's witness statement. The claimant's representative, without prejudice to his objections, in effect, to any reduction of the claimant's witness statement indicated he could understand a Tribunal might find a potential word-limit of 15,000 words for the claimant's witness statement would be more appropriate in the circumstances. However, I suspect, even the removal/reduction/omission of the above paragraphs, as outlined above, will not reduce the overall size of the claimant's witness statement to any significant degree and, in particular, to the levels suggested above by each of the representatives. In the circumstances, it was therefore necessary for me to consider this application in greater detail, as set out below.

 

2.3 In a series of decisions, including Carol Crockett v Police Federation of Northern Ireland & Another [Case Reference Nos: 557/13 and 1279/13] - NIIT 9 October 2013 and, more recently, the case of Michelle Elliott v Chief Constable of the Police Service of Northern Ireland [Case Reference Nos:   872/15, 2273/15] - 24 February 2016, I have reviewed the relevant authorities and the legal principles which must guide a Tribunal in relation to such an application, which had been identified in various legal decisions in this jurisdiction and in Great Britain. Given both counsel accepted the principles set out in those decisions, I do not intend to repeat, in extenso, what is set out in those decisions; but, I have taken them into account in reaching my decision, as set out below.

 

Both counsel, in the course of their submissions, recognised the difficulties imposed on a Tribunal in considering these issues and in seeking to balance the respective interests of both parties. In this context, I again remind the representatives of the terms of the overriding objective, referred to above.

 




I am also very conscious of the guidance of Mummery LJ in Beazer Homes Ltd  v  Stroud [2005] EWCA Civ 265, when he stated at Paragraph 9:-

 

"In general, disputes about the inadmissibility of evidence in civil proceedings are best left to be resolved by the Judge at the substantive hearing of the application of the trial of the action, rather than at a preliminary hearing. A Judge at a preliminary hearing on non-admissibility will usually be less well-informed about the case. Preliminary hearings can also cause unnecessary costs and delays."

 

This guidance was confirmed by Underhill J, as he then was, in HSBC Asia Holdings BV v Gillespie [2010] UKEAT/0417.

 

After referring to the said guidance by Mummery LJ in Beazer Homes Ltd, Underhill J in HSBC Asia Holdings BV stated:-

 

"(8) Notwithstanding the general position as stated at (7) above, there will be cases where there are real advantages in terms of economy (in the broadest sense of that term) in ruling out irrelevant evidence before it is sought to be adduced and, more specifically, in advance of the hearing. ... But it may also come up by way of a frank application to exclude evidence as a matter of case management - for example where if the evidence in question is called it will seriously affect the estimate for the hearing or where its introduction might put the other party to substantial expense or inconvenience. ... ."

 

I am only too well aware, as referred to in Crockett and Elliott, that what is stated in a claimant's witness statement will frequently have a direct consequence for the length and number of witness statements adduced by a respondent. In the circumstances,, the necessity therefore for witness statements to be properly drafted from the outset is of great importance in relation to the conduct of a substantive hearing and length of same.

 

In reaching my decision, as set out below, I also took into account what was stated by me in the decision in the case of Briercliffe v Southern Health & Social Care Trust [Case Reference No: 74/12], in which I stated, insofar as relevant and material to these proceedings:-

 

"2.4 I am satisfied, before determining this matter, it is necessary to confirm that I do not consider the use of word-limits should become some form of sterile word number competition/bidding war between the parties; and the parties must not forget the purpose of imposing any form of word-limit is merely a tool to enable the Tribunal to properly case-manage a substantive hearing, in light of the issues identified. Having said that, I note that, without much apparent difficulty and after reflecting what had been stated at the previous Case Management Discussion, the claimant was able to significantly reduce the words used in her amended witness statement from those used in her original witness statement. It therefore begs the question, why such an exercise was not carried out, before the service of the original witness statement. For the reasons set out below, I think a further reduction can and will require to be made by the claimant, by the Tribunal imposing a new word-limit. I accept that, in my discretion, an alternative method for a Tribunal when determining such an application can and should be, where it is appropriate to do so, to strike-out certain paragraphs/parts of a witness statement, rather than merely imposing an overall word-limit. Each case will depend on its own facts and the particular issues to be determined, but also the terms of the witness statement, the subject-matter of an application. To strike-out certain paragraphs/parts of a witness statement was able to be done, for example, in the cases of O'Prey, Bowers and McNally, to which reference has been made above. However, on the basis of the submissions made by the representatives in this case, but also the issues to be determined by the Tribunal (see later), I came to the conclusion that for a Tribunal, in this particular case, to conduct a 'red pen type exercise' at a pre-hearing review was not appropriate and would have meant the tribunal could fall into the very trap, which is warned against in the cases of Beazer Homes Ltd and/or SCA Packaging and where, in my judgment, the terms of the witness statement, as drafted to date, did not clearly allow such a 'red pen type exercise' to take place.

 

... ."

 

In light of the foregoing, I decided that, in these present proceedings a 'red pen type exercise' was not appropriate, certainly at this stage and that this decision should involve merely an overall word-limit, in light of a review, as set out later in this decision.

 

2.4 In reaching my decision, as set out below, on this application for an appropriate word-limit, I do not ignore, but take into account, that in a discrimination case background circumstances and/or context may frequently require to be included in a witness statement (see Anya v University of Oxford [2001] IRLR 377). However, such facts relating to background and/or context must be kept to a minimum, insofar as relevant and necessary in order to establish a particular claim. In particular, as seen in many cases, there is often a danger that such background facts, being merely background, unless properly limited, can take on an importance greater than the identified issues in the claim itself. It can sometimes be difficult to achieve the necessary balance and to determine where the line must be drawn. Indeed, as part of the review of the claimant's witness statement (see later) the claimant and the claimant's representative must consider where so-called matters of background and/or context could be omitted or expressed in more limited/reduced terms than is presently the case. In advance of that review, I am reluctant to refer to specific paragraphs of the claimant's witness statement, where I have such concern; although some were addressed, in general terms, during the course of discussion. However, if necessary, following any such review and amended witness statement to comply will the new word-limit, I will determine any such matter in light of any further appropriate application by either party. Hopefully, this will not be necessary.

 




2.5 In various recent decisions in the High Court in Great Britain, where witness statements are a normal part of the evidential procedures, there have been various examples where Orders for Costs have been made by the Civil Courts, where witness statements have been held to have been improperly drafted (see, for example, Nicholls v Ladbrokes Betting & Gaming Ltd [2013] EWCA Civ 1963). Although I appreciate that, in Employment Tribunal proceedings, costs do not normally follow the event and indeed are infrequently ordered; the dangers and consequences for improperly drafted witness statements, as indicated in such decisions, is clearly to be seen.

 

In Farepak litigation, Peter Smith J stated:-

 

"47. Courts have regularly reminded parties that the purpose of witness statements is to replace oral testimony. It is not to rehearse arguments, it is not to set out a case and whilst it necessarily has to be drafted with the corroboration of lawyers, it should not be a document created in the language of lawyers by the lawyers, because the lawyers do not go into the witness box and defend it ... ."

 

In ED and F Man Liquid Products Ltd v Patel [2002] 1706 EWHC (QB), HH Judge Dean QC provided a classic example of the dangers of a statement giving opinion evidence, when he stated:-

 

"Witness statements are not the place for arguments. It means you have to read everything twice ... a lot of it is tendentious comment which is bound up with fact. I think this witness statement is an example of what a witness statement should not be whether in the commercial court of anything else ... here we have the commercial court practice which says that witness statements must comply with the Rules. They should be as concise as the circumstances allow it. They should not engage in argument ... ."

 

2.6 It has long been recognised, in legal authorities, witness statements must set out relevant facts, but omit argument, supposition, hypothesis, statements of belief and repetition. In particular, a witness cannot dictate what is contained in the witness statement by stating, in terms, 'this is my story I will say it as I like'. The witness is subject to the case-management orders and directions of the Tribunal, the relevant Rules of Procedure, including the overriding objective, and must confine herself/himself to such statements of facts. Witness statements obviously have clear advantages, not least in relation to the modern principles of 'cards on the table'. In many cases, but sadly not all, witness statements can be of great assistance in reducing the length of hearings. However, it must not be forgotten that a claimant's witness statement, for example, which is now normally pre-read by the Tribunal prior to the hearing, replaces the oral examination-in-chief of that witness. If such evidence was to be given orally by a claimant, in the absence of witness statements, then the factual evidence to be given by that witness, by way of examination-in-chief, would normally be guided/directed by a series of direct questions put to that witness by the relevant representative. By use of such questions, but also, where necessary, any relevant intervention of the Tribunal, it is possible to prevent the witness straying into the areas of arguments, statements of opinion or belief and/or hypothesis and/or repetition. However, this measure of control, which would be normally present if evidence was given orally rather than by way of witness statement, is still relevant, in my judgment, and must be borne in mind whenever consideration is given to what must be contained in a witness statement. Certainly, a witness statement must not be an opportunity for a witness to get round controls that would operate, if evidence was given orally.

 

2.7 As I pointed out to the claimant's representative, I have considerable concern that, in many instances in the claimant's witness statement, after she has properly addressed the factual allegations, she has then gone on to make comment/ interpret herself the events, and/or put a spin or gloss on those facts - in a way which does not come within the proper confines of witness statements, even after taking into account the Anya dispensation. Again, in advance of the said review, I am reluctant to refer to specific paragraphs of the claimant's witness statement at this stage; but, if necessary, I will do so, following the review and the drafting of the amended witness statement to comply with the new word-limit, on foot of any appropriate application by the party. Hopefully, this will not be necessary.

 

2.8 In relation to my decision, as set out below, it is without prejudice to any decision taken by the Tribunal, at the substantive hearing, including any issue of costs arising out of the contents of the witness statements of either party, as placed in evidence before that Tribunal, including, as appropriate, where it is decided that these contents of any such witness statements have unreasonably impacted upon the length of the hearing. As seen in Beazer and HSBC Asia Holdings, any decision made at a pre-hearing review, in relation to the issues the subject-matter of this hearing, inevitably, have to be limited given the nature and purposes of relevant case-management. The Tribunal, at the substantive hearing, will have much greater knowledge and understanding of the whole picture.

 

2.9 In light of the foregoing, I have come to the conclusion that there requires to be a review of the claimant's witness statement to take account of the matters, as set out in the above sub-paragraphs. I have concluded, if this is done and the claimant's witness statement is re-drafted/amended to reflect same, that the claimant's witness statement must be reduced and not exceed 12,000 words. In setting this limit, I have taken into account what I stated in the case of Briercliffe but also the recognition by the respondent's representative that the previous word limit was no longer appropriate together with his suggested alternative range. In doing so, I fully appreciate to set any such limit is not and cannot be an exact science. The claimant's re-drafted/amended witness statement, to reflect this new word-limit, must be exchanged with the respondent's representative by 5.00 pm on 14 June 2016, subject to any other application by either party. I appreciate that, arising out of the claimant's re-drafted/amended witness statement, the respondent's representative will require further time to finalise the respondent's witness statements in response to the claimant's said witness statement. A timetable for the exchange of the respondent's witness statements will be considered at the next Case Management Discussion, as set out below.

 

3.1 As set out in the Notice of Hearing at Paragraph (ii) therein, an issue has arisen between the parties in relation to the claimant's wish to include a claim for compensation for personal injuries and/or aggravated damages. It is common case that, in an appropriate case, which would include the claimant's claims for unlawful discrimination, a claimant can seek by way of remedy compensation for personal injury and also aggravated damages. I am not persuaded that the well-known case of Sheriff v Klyne Tugs (Lowestoft) Ltd, as referred to by the respondent's representative in a letter dated 12 April 2016, requires an application for an Order for leave to amend any relevant claim to include such matters. Even with the introduction of the 2004 Rules of Procedure, what requires to be set out in a claim form is still somewhat limited (see further, for example, Grimmer v KLM City Hopper UK [UKEAT/0070/05]. However, although I am satisfied that a formal application for an Order for leave to amend the claimant's claim was not required in order for the claimant to claim compensation for personal injury and/or aggravated damages, I have no doubt that it is essential that the respondent is put on appropriate notice that such a claim is to be made by the respondent. As indicated previously, it was not apparent from the claimant's claim form, or indeed what occurred at the Case Management Discussion on 10 December 2015, that such claims were to be made by the claimant. I further understand that the respondent's Notices for Additional Information and replies thereto did not reveal that such matters were to be relied upon by the claimant. Equally, in the original statement of issues, there was no such indication given by the claimant. Indeed, this may not be surprising, since it would appear that it was not until counsel, instructed by the claimant's present representatives, consulted with the claimant at the end of March that decisions were taken to make such claims. Indeed, it was not until the schedule of loss was provided by the claimant's representative, along with the claimant's witness statements on or about 11/12 April 2016, that the respondent was put on notice that such claims were to be made. Indeed, even at this stage, I understand that the relevant medical evidence/report to be relied upon by the claimant, in relation to her claim for personal injury, has not yet been obtained. Clearly, the respondent's representatives have to be given the opportunity to raise Notices for Additional Information and/or Discovery and Inspection in relation to these matters and further these matters will have to be reflected in the amended statement of issues. Following receipt of such replies/reports, etc, the respondent's representative will have to have an opportunity to consider whether the respondent requires to obtain its own medical evidence. All of this may take time. It is therefore essential the claimant's representatives provide such replies/reports as a matter of urgency.

 

3.2 In the circumstances, I order that, if the respondent's representative wishes to issue any Notices for Additional Information and/or Discovery and Inspection in relation to these issues of aggravated damages and/or personal injury then any such Notice must be issued within seven days of the date this decision is issued to the parties and replies thereto must be made by the claimant's representative within 14 days of receipt of any Notice. These are Orders of the Tribunal and must be complied with. If any further application is required to be obtained from the Tribunal, including any application for extension of time, then any such application must be made promptly and in accordance with the relevant Rules of Procedure and having regard to the date for the next Case Management Discussion, as set out below. During the course of discussion, during this pre-hearing review, I was informed that the claimant's representative has disclosed to the respondent's representative some limited redacted GP notes and records. The claimant's representative contended that what had been discovered to the respondent's representative were the only relevant records, which required to be discovered to the respondent's representative in the circumstances (see further Irwin v Donaghy [15 December 2015] - 'Girvan Order' - Valentine - The Supreme Court). This was vigorously contested by the respondent's representative. However, in view of the fact that the medical report from the claimant's consultant is not yet available, I decided that, in the circumstances, I would adjourn to the next Case Management Discussion what further or other orders, if any, are required to be made by the Tribunal in relation to the discovery of the claimant's medical records, in light of her claim for personal injury. Ultimately, if an issue of relevance arises in relation to what has to be discovered in such notes and records, it may be necessary for me to decide such matters.

 

4.1 In relation to the issue, as referred to above, of whether the claimant required to make an application for an Order for leave to amend the claimant's claims to include the allegations set out in Paragraphs 8(h) - (l) and Paragraphs 9(g) - (k) of the amended statement of issues and further the allegations by the claimant set out in Paragraphs 28, 29; 71, 72; 96; 124; and 138 of the claimant's witness statement. I am satisfied that, such allegations, by their nature, and which had not previously been set out in the claimant's claim form, require to be the subject of an application for an Order leave to amend the claimant's claims.

 

4.2 As set out in Harvey on Industrial Relations and Employment Law, Section P1, Paragraph 311.04, it has long been held that 'a distinction may be drawn between (i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of claim; (ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and (iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all'.

 

It was properly agreed by the representatives that the above proposed amendments, to include the allegations specifically referred to above, did not fall within the third Harvey classification; and any such amendments either fell within the first classification or the second classification. In either case, again, it was agreed issues of time did not arise.

 

4.3 In a recent decision in the case of Kijowska v Belfast Health & Social Care Trust and Others [Case Reference Nos:  1149/15 and 2390/15], recorded in the Register and issued to the parties on 10 February 2016, I have reviewed the relevant legal authorities and legal principles which must guide a Tribunal in relation to whether to grant leave for an Order to amend a claimant's claim, which had been identified in various legal decisions in this jurisdiction and in Great Britain. I do not intend to repeat the legal principles, set out in the above decision; but I have taken them into account in reaching my decision, as set out below. In the circumstances, I do not think it is necessary to consider whether the proposed amendments fall within the first classification or the second classification in Harvey. In either case, it seems to me that the relevant principles are to be found in Selkent Bus Company Ltd v Moore [1996] ICR 836, as approved in the case of Abercrombie and Others v AGA Rangemaster Ltd [2013] EWCA Civ 1148 and, in particular, the judgment of Underhill LJ in Abercrombie at Paragraphs 47 and 48 of his judgment, as referred to by me in the Kijowska decision.

 

4.4 Applying the principles set out in the above authorities, I have no doubt that the amendments, the subject-matter of this application, are major amendments, involving new factual allegations, some of which go back to 2012. I appreciate that, on the claimant's claim form, she has indicated that, in this case of 'continuous discrimination', the first instance relied upon was in 2013. However, the respondent's representative informed me that, following his said consultation, these further matters arose and, it was therefore necessary for him to seek to include them as part of the claimant's claim, with the consequence that this has given rise to this particular application. The fact that this situation has now arisen, despite what is set out in the claim form, may be relevant to cross-examination and/or issues of credibility etc; but are not matters for me to determine at this pre-hearing review. It has long been held that an application for leave to amend should not be refused solely because there has been a delay in making it. There are no time-limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, or even after the hearing of the case. However, delay in making the application is, however, a discretionary factor. I have some concerns, as indicated above, why it was not until late March 2016/early April 2016, following the consultation with the claimant's counsel, instructed by the claimant's new representatives, that these issues the subject-matter of this application came to be fully considered by the claimant and/or her then representatives, especially since this case had been case-managed on 10 December 2015, as set out in the Record of Proceedings. This is clearly most unsatisfactory. However, I am not satisfied that any such delay in the circumstances should be determinative of this particular application. In this context, I am also conscious of the judgment of Underhill J, as he then was, in the case of Evershed v New Star Asset Management [2009] UKEAT/0249/09, when he stated:-

 

"33 ... This is not the business of the Tribunals to punish parties (or their advisers) for their errors. In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could if he had been sufficiently careful got it right first time round."

 

4.5 As properly recognised by both representatives the paramount consideration, in accordance with the principles laid down in Selkent, remains the relative injustice and hardship to the parties in refusing or granting the amendments. Undoubtedly, the proposed amendments will require some more evidence to be produced than might have been the case prior to any such amendment. However, I am satisfied that the granting of leave to amend in relation to the above matters, will not, significantly, increase the amount of evidence which will require to be heard and determined by the Tribunal or indeed the length of the hearing. The respondent's representative confirmed that all relevant witnesses of the respondent who will be required to deal with these amendments, are available; albeit he points out that some of the matters refer to incidents which occurred some four years ago. He suggested, but no more than that, that the passage of time could be relevant to the recollection of those witnesses. No doubt, that may be a matter which will be explored during the course of examination/cross-examination and, if required, may be taken into account by the Tribunal, at the substantive hearing, when determining the issues in this case. However, I am not satisfied that any difficulties, if any, arising from said passage of time, in the particular circumstances of this case, are sufficient, in the absence of anything more, to allow me to refuse the applications for leave to amend. Clearly, if the applications are granted the respondent will have to deal with those allegations. However, it has long been established that the fact that a party has to deal with those allegations, which it would not otherwise have done, is not a determinative factor, in itself and without more. Indeed, the respondent's representative, whilst making the above submissions, could not point to any 'real prejudice' to the respondent if these applications were granted.

 




4.6 These issues are always difficult to determine, not least in carrying out the balancing exercise referred to by Mummery J in Selkent. This case is no different. However, after taking account of my conclusions, as set out in the previous sub-paragraphs, I have decided that, in deciding the relevant injustice and hardship involved in granting and refusing the proposed amendments, that the greater hardship and justice would be for the claimant, if the applications were refused. Therefore, I have decided that the claimant's application for an Order for leave to amend her claim, in the terms set out above, is granted; and I order that the said claims of the claimant are so amended. The respondent, if it wishes to present an amended response to the claimant's claims, so amended, is ordered to do so within 14 days from the date this decision is issued to the parties. In addition, if the respondent's representative wishes to issue any Notice for Additional Information and/or Discovery and Inspection, in relation to the said amendments, then any such Notice must be issued within seven days from the date this decision is issued to the parties and any replies thereto must be made by the claimant within 14 days of the receipt of any such Notice. Again, I remind the parties that these are Orders of the Tribunal and must be complied with. If any further application is required to be made to the Tribunal, including any application for extension of time, then any such application must be made promptly and in accordance with the relevant Rules of Procedure and having regard to the dates for the next Case Management Discussion, as set out below.

 

5. A further Case Management Discussion will be held in this matter on:-

 

17 June 2016 at 9.30 am;

 

to consider the way forward and to give such further case-management directions/orders, as may be required and necessary in the circumstances, in light of the orders referred to above, and also to give relevant case-management directions/orders for the timetable for the preparation and exchange of the respondent's witness statements, the lodgement of bundles and dates for hearing.

 

6. At the conclusion of this hearing, the respondent's representative made an application for costs of this hearing and also of the earlier Case Management Discussion on 26 April 2016. The claimant's representative had not been put on notice of this application and no schedule of costs, for the purposes of this application, had been provided to the claimant's representative by the respondent's representative. The claimant's representative then indicated that the claimant would also wish to make a cross-application, on behalf of the claimant, for an Order for Costs against the respondent, in relation to these hearings. Similarly, this cross-application by the claimant's representative had also not been notified to the respondent's representative and again no schedule of costs had been provided. In light of the foregoing and given the decisions made by me, as set out above, I came to the conclusion that to proceed with any such applications for Orders for Costs, at this hearing, would be premature and would also require a proper application in writing to be made by each party. In the circumstances, I decided that any such application for an Order for Costs, as indicated above, by either party, would be considered and determined, if necessary, at a date and time to be arranged at the next Case Management Discussion in this matter, as set out above - provided, if either party wishes to proceed with any such application for an Order for Costs, then any such application must be made to the Office of the Tribunals, with copy to the other party, in writing and in accordance with the relevant Rules of Procedure, by 5.00 pm on 16 June 2016, setting out the reasons for the said application and also including, where appropriate, any relevant schedule of costs to be relied upon in relation to any such Order for Costs.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 3 May 2016, Belfast

 

 

 

Date decision recorded in register and issued to parties: