Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 05846_09IT, [2010] NIIT 5846_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 5846/09

6100/09

CLAIMANT: Claire Louise Smyth

RESPONDENT: Fleet Financial NI Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(i) The tribunal, having considered the respondent’s response in compliance with the ‘Unless Order’ dated 12 January 2010, it was agreed by the parties’ representatives that the tribunal should grant relief to the respondent from the sanction of the ‘Unless Order’, insofar as necessary and required, in the terms and/or on foot of the orders made by the tribunal, by consent, as set out below.

(ii) The tribunal further made, by consent, various case-management directions/orders, as set out below, to enable the substantive merits hearing of this matter to be listed and determined by the tribunal.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Tughans, Solicitors.

The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by Reid Black & Company, Solicitors.

Reasons

1. Following the Case Management Discussion on 6 January 2010, as set out in the Record of Proceedings dated 12 January 2010, the tribunal made an ‘Unless Order’, which stated, inter alia, as follows:-

“TAKE NOTICE IT IS ORDERED THAT UNLESS by 18 January 2010, the Secretary or other Proper Officer of the respondent, on behalf of the respondent, complies with the tribunal’s order to provide discovery and inspection of all documents relevant to the issues in this matter, which are in the possession, custody or power of the respondent, save insofar as have already been provided by the respondent to the claimant’s representative, as set out in the Record of Proceedings dated 12 January 2010, this tribunal shall make a decision that the response of the respondent shall be struck-out pursuant to Rule 13(2) of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 for failure to comply with the said order, without further consideration of the proceedings or the need to give any further notice or to hold any further hearing.”

2. By letter dated 29 January 2010, the solicitors for the claimant made an application to the tribunal requesting that the ‘Unless Order’ be enforced by the tribunal, on the ground that there had not been compliance by the respondent in relation to the terms of the said ‘Unless Order’. By letter dated 8 February 2010, the tribunal wrote to the representatives of the parties and stated as follows:-

“ … The Chairman, on the basis of the said correspondence, is not prepared to strike-out the respondent’s response for failure to comply with the said ‘Unless Order’ ‘on paper’ and without further consideration of the proceedings or the need to give further notice or to hold any hearing. In the circumstances, the Chairman has therefore directed that a pre-hearing review requires to be arranged … to consider the following issue:-

‘Whether or not the respondent has complied with the ‘Unless Order’ made by the tribunal in this matter dated 12 January 2010’.”

3. At the commencement of this hearing, Mr Sands acknowledged that, if the respondent had not complied with the ‘Unless Order’ made by the tribunal in this matter dated 12 January 2010, then the tribunal would have no alternative but to strike-out the respondent’s response in the absence of any application by the respondent for relief to be granted to the respondent from the sanction of the ‘Unless Order’. (See further Frederics v Kingston University [UKEAT/0239/09], Governing Body of St Albans Girls School and Hertfordshire County Council v Anthony Neary [2009] EWCA Civ 1990 and Opara v Partnerships in Care Ltd [UKEAT/0368/09].) Mr Sands, although he did not accept that the respondent had not fully complied with the terms of the said ‘Unless Order’, made an application for the respondent to be relieved from the sanction of the ‘Unless Order’, insofar as the tribunal considered necessary and appropriate.

4. Following further discussion between the representatives, it was agreed that the tribunal would grant relief to the respondent from the sanction of the ‘Unless Order’ in the terms and/or on foot of the orders made, by consent, by the tribunal, as set out in the following paragraph of this decision.

5. Applying the paragraph numbering, adopted by the claimant’s representative in her letter of 29 January 2010, it was agreed as follows:-

(1) The ‘Unless Order’ had been complied with.

(2)(a) The respondent’s representative confirmed no other documentation within the class of documents referred to in the paragraph existed.

(2)(b) The respondent’s representative confirmed that Mr Jim Humphreys had taken notes and it was agreed, and the tribunal ordered, these would be identified to the claimant’s representative from the documents already provided by way of discovery in the lever arch file by on or before 16 March 2010. It was further agreed, and the tribunal ordered, that the respondent’s representative would also check with Mr Hughes if there were any relevant notes made by him and, if so, these would be discovered to the claimant’s representative by on or before 16 March 2010.

(2)(c) The ‘Unless Order’ had been complied with.

(2)(d) The representatives of both parties have agreed to allow the claimant access to the respondent’s computer server to enable her to access relevant documents within the class of documents referred to. It was agreed, and the tribunal ordered, that this would be done by on or before 16 March 2010 at the offices of the claimant’s instructing solicitors, by prior arrangement with the respondent’s instructing solicitors.

(2)(e) The respondent’s representative confirmed that no board meeting minutes had been taken. However, at board meetings, members were provided with an information pack dealing with the overall performance of the company; but the respondent contended that these were not relevant to any issues which were the subject-matter of these proceedings.

(2)(f) The respondent’s representative stated that the minutes of such meetings, insofar as they exist, had already been discovered in the documents discovered in the lever arch files on foot of the terms of the ‘Unless Order’. It was agreed, and the tribunal ordered, that the respondent’s representative would identify to the claimant’s solicitors the precise documents in the lever arch files which are said by the respondent’s representative to be relevant to the issues in this matter and which fall within the said class of documents by on before 16 March 2010.

(2)(g)-(k) The ‘Unless Order’ had been complied with.

(7) The respondent’s representative confirmed that no such letter exists.

(8) The respondent’s representative confirmed that minutes of Board meetings do not exist, only the information pack which, as stated previously, the respondent contended was not relevant to the issues in this matter.

(9) Insofar as there is any overlap with Paragraph (2)(f), as set out above, the respondent’s representative agreed, and the tribunal ordered, he would identify to the claimant’s representative by on or before 16 March 2010 any documents contained in the documents already discovered in the lever arch files, which fall within the said class of documents, together with any other documents not within Paragraph (2)(f) which also fall within this class of documents.

(11) – (14) The ‘Unless Order’ had been complied with.

(15) It was agreed, and the tribunal ordered, the respondent’s representative would identify to the claimant’s representative by on or before 16 March 2010 any documents contained in the documents already discovered in the lever arch files by the respondent’s representative to the claimant’s representative, including the specific identification of notes, if any, taken by Jim Humphreys.

(16) – (18) The ‘Unless Order’ had been complied with.

(19) Again, it was agreed, and the tribunal ordered, the respondent’s representative would identify to the claimant’s representative any documents within this class of documents contained in the lever arch files produced by the respondent’s representative in compliance with the said order by on or before 16 March 2010.

(20) Again, as set out previously, it was agreed, and the tribunal ordered, the respondent’s representative would allow the claimant access to the respondent’s computer server by on or before 16 March 2010, by prior arrangement between the parties, at the claimant’s instructing solicitor’s office.

(24) Again, it was agreed, and the tribunal ordered, the respondent’s representative would identify to the claimant’s representative by on or before 16 March 2010 any documents contained within the said class of documents, which are contained in the lever arch files served by the respondent’s representative in compliance with the said order.

(25)(i) It was agreed, and the tribunal ordered, that the respondent’s representative would confirm the terms of the reply already given in response to this paragraph by on or before 16 March 2010 or, if necessary, would provide any amendment thereto, following clarification of instructions by the respondent’s representative.

(25)(ii) The ‘Unless Order’ had been complied with.

(28) The ‘Unless Order’ had been complied with.

6. In light of the agreement between the parties, as set out above, it was therefore not necessary for the tribunal to come to any conclusion in relation to whether or not the ‘Unless Order’ had been complied with in whole and/or in part. I note the work that has been carried out by the respondent and/or respondent’s representative to comply with the said ‘Unless Order’; and I am satisfied that, with compliance with the further orders and/or directions referred to above, the issue of the discovery to be provided by the respondent should be able to be resolved without any further order or hearing.

7. In addition, it was agreed, and the tribunal ordered, that the claimant would provide to the respondent’s representative, insofar as it has not already been done, discovery of all documents relating to the issues in this matter in the possession, custody or power of the claimant including any other document upon which the claimant intends to rely at the hearing of this matter, by 31 March 2010. This clearly will include any documents, which the claimant wishes to rely upon, which are identified by her during the computer search to be carried out by her at her instructing solicitor’s office, as referred to above. I also emphasised to both parties and their representatives that each party has a continuing obligation in relation to discovery. The tribunal has taken a careful note of the various responses made by the respondent’s representative in relation to compliance with the said ‘Unless Order’ in correspondence and as set out above. If, at any later stage in these proceedings, these responses are found not to be correct, then this clearly will be a matter for the tribunal to further consider, as appropriate and necessary.

8. Having considered and determined the issue relating to compliance with the said ‘Unless Order’ and/or any relief from sanction of the ‘Unless Order’; I then proceeded to consider what further or other case-management directions/orders were required in order for this matter to be able to be listed and determined by the tribunal for a full merits hearing.

The representatives confirmed that the previous orders made by the tribunal in relation to the provision of additional information had been complied with by both parties and that no issues had arisen in relation to the said replies. Both representatives also confirmed that they have already exchanged various ‘drafts’ in relation to the agreed statement of legal and main factual issues; but the statement could not be finalised until the further orders/directions, in relation to discovery, as set out above, have been complied with. It was therefore agreed, and the tribunal ordered, that an agreed statement of legal and main factual issues will be lodged with the tribunal by on or before 13 April 2010. I reminded the representatives of the consequences if there was a failure to lodge the statement by the said date.

9. The claimant’s representative sought an order for the preparation and exchange of witness statements, to which the respondent objected. Having considered the submissions and having regard to the terms of the overriding objective, I came to the conclusion that it was neither necessary or appropriate for witness statements to be ordered to be prepared and exchanged between the parties. This matter will therefore proceed with the parties giving oral evidence in the normal way. I understand that on foot of the discovery of the claimant, relevant GP notes and records will be discovered to the respondent’s representative. Mr Mulqueen indicated there may be a GP report relied upon by the claimant. Clearly, this will require to be shared, if it is to be relied upon. If the respondent requires to obtain medical evidence this should be done promptly and within such time, which will not cause any postponement of the hearing of this matter.

If any further interlocutory orders are required to be obtained from the tribunal, then they must sought promptly and in accordance with the relevant Rules of Procedure.

10. Date of hearing

21 June 2010 – 9 July 2010

Notice of Hearing will be issued for the said dates, unless any objection is received by the tribunal within seven days of the date of this decision. I would hope that this matter would be able to be concluded within a shorter period of time; but in order to avoid the risk of reconvening, not least having regard to the Summer vacation period, I have listed this case for the above period. If there is any objection to the proposed dates, then this should be given in writing, setting out the reasons for the objection and, if appropriate, providing to the tribunal agreed proposed alternative dates for hearing.

11. Bundles

An agreed bundle, paginated and with a proper index, of all relevant documents must be lodged in the Office of the Tribunals by 11 June 2010. Three further sets of the bundle must be brought to the Office of the Tribunals not later than 9.30 am on the first day of the hearing.

Chairman:

Date and place of hearing: 1 March 2010, Belfast

Date decision recorded in register and issued to parties:

Notice

1. If any party fails and/or is unable to comply with any of the above Orders, any application arising out of such failure or inability to comply must be made promptly to the tribunal and in accordance with the Industrial Tribunals Rules of Procedure 2005.

2. Failure to comply with any of these Orders may result in a Costs Order or a Preparation Time Order or a Wasted Costs Order or an Order that the whole or part of the claim, or as the case may be, the response may be struck out and, where appropriate, the respondent may be debarred from responding to the claim altogether.

3. Under Article 9(4) of the Industrial Tribunals (Northern Ireland) Order 1996, any person who, without reasonable excuse, fails to comply with a requirement to grant discovery and inspection of documents under Rule 10(2)(d) of the Industrial Tribunals Rules of Procedure 2005 shall be liable on summary conviction to a fine not exceeding Level 3 on the standard scale - £1,000 at 3 September 2007, but subject to alteration from time to time.

4. A party may apply to the tribunal to vary or revoke any of the above Orders in accordance with the Industrial Tribunals Rules of Procedure 2005.