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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Briercliffe v Southern Health & Social Care ... [2012] NIIT 00074_12IT (05 September 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/74_12IT.html
Cite as: [2012] NIIT 00074_12IT, [2012] NIIT 74_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 74/12
CLAIMANT: Fiona Briercliffe
RESPONDENT: Southern Health & Social Care Trust
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that:-
(1) The respondent’s application to strike-out and not admit in evidence at the substantive hearing of this matter, the claimant’s witness statement, in whole or in part, is able to be determined at a pre-hearing review and does not require to wait to be determined by the tribunal conducting the substantive hearing.
(2) The claimant’s amended witness statement presented to the tribunal on 21 August 2012 must be further amended, so that the maximum number of words must not exceed 8,000 words.
(3) The respondent’s application for an Order for Costs is refused.
(4) A Case Management Discussion will be held, at a date and time to be notified to the representatives, to enable the tribunal to make amended further case-management directions/orders, including orders for the lodgement of an amended agreed statement of issues, a revised timetable for the preparation and exchange of witness statements, and a revised date for hearing.,
(5) The substantive hearing, previously ordered to be listed from 24 September 2012 – 5 October 2012 is postponed, pending further orders being made by the tribunal at the Case Management Discussion referred to above.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
Appearances:
The claimant was represented by Ms J McCourt, Solicitor, of Rosemary Connelly, Solicitors.
The respondent was represented by Ms C Tiffney, Solicitor, of Directorate of Legal Services, Business Services Organisation.
Reasons
1.1 The claimant presented a claim to the tribunal on 23 September 2011, in which she made a claim of unfair dismissal and/or a claim of less favourable treatment, following the making of protected disclosures. The respondent presented a response on 14 March 2012, in which it denied liability for any such claims made by the claimant.
1.2 In view of the fact that the claimant had raised claims, involving alleged public interest disclosures, by the claimant, pursuant to the Public Interest Disclosure (Northern Ireland) Order 1998 (‘Whistleblowing claims’), the tribunal, in accordance with its normal practice, where such claims are raised by the parties, arranged a Case Management Discussion to identify the issues to be determined by the tribunal and/or make relevant case-management directions/orders for the substantive hearing of the claimant’s claims. The Case Management Discussion was held on 3 May 2012. The representatives had, prior to the hearing, prepared a ‘draft’ agreed statement of legal and factual issues on 2 May 2012. It was agreed at the Case Management Discussion, as set out in the Record of Proceedings, that this was a ‘work in progress’ and required considerable further work, having regard, in particular, to the fact that the claimant was also making claims of public interest disclosure (‘Whistleblowing claims’).
As set out in the Record of Proceedings of the hearing on 3 May 2012, dated 11 May 2012, I stated:-
“In particular, I reminded the representatives that in ALM Services Ltd v Bladon [2002] EWCA Civ 1085, the Court of Appeal said that there should be directions hearings in protected disclosure cases in order to identify the issues and ascertain what evidence the parties intend to call on those issues. I made it clear that in any statement, the tribunal will expect to be set out from the claimant, if those details are not already expressly pleaded, for example:-
(a) when and to whom the disclosure was made;
(b) precisely which act or acts are alleged to constitute the disclosure of information which is or are relied upon;
(c) which act or omission or apprehended act or omission and which Sub-section of Article 67B(1) a – f of the Employment Rights (Northern Ireland) Order 1996, is relied upon;
(d) where the claim is one of ‘victimisation’ what acts or omission of the employer are relied upon as constituting a detriment; and
(e) what fact and matters are relied upon by the claimant in support of the allegation that she was subjected to a detriment and/or (as the case may be) dismissed on the ground of or by reason that she had made a protected disclosure.
Similarly the tribunal will wish to have set out in the statement:-
(a) whether the respondent accepts that a qualifying disclosure was made as alleged by the claimant; and
(b) whether the respondent accepts that the qualifying disclosure is a protected disclosure and, if not, why not and, in particular, whether, and if so on reliance on what facts and matters, the respondent intends to contend that the disclosure was not made in good faith.
Again, the statement should make clear the inter-relationship, if any, between the claim for constructive unfair dismissal and/or detriment and, what remedies are claimed in relation to each said claim. Again, if any issues of time arise in relation to any such claim, this must be clearly set out in any such statement.”
To assist in the completion of the said statement, I made various interlocutory orders requiring the parties to provide additional information and/or discovery and inspection; and in light of the foregoing, I made a further order, by consent, for a full and proper agreed statement of legal and main factual issues to be lodged with the tribunal by 28 June 2012. Further, insofar as relevant and material, I made, having regard to the terms of the overriding objective, agreed orders for the preparation and exchange of witness statements between the parties, which also included the following orders:-
“ …
(d) A witness statement must be a complete statement of the evidence relating to the issues, in respect of both liability and remedy, in the case, that the witness wishes to give to the tribunal. A witness will not be permitted to add to his statement without the consent of the tribunal. Consent will only be given where there is good reason for doing so.
…
The statement should then use the factual issues agreed as set out in the agreed statement of issues referred to above and set out the witnesses’ evidence in relation to each factual issue chronologically. The witness statement should finish with a short summary paragraph.
Witness statements may not exceed 5,000 words unless otherwise directed by the tribunal [tribunal’s emphasis].”
I also made an order, by consent, listing the hearing of this case from 24 September 2012 – 5 October 2012.
1.3 On 2 July 2012, the tribunal was presented with an agreed statement of legal and factual issues. On 7 August 2012, the respondent’s representative made an application for the claimant’s witness statement, which had been served on 6 August 2012, to be struck-out and not admitted in evidence at the substantive hearing, on the grounds that the witness statement was in excess of 20,000 words, contrary to the previous order made by the tribunal on 3 May 2012 and in the absence of any further order/direction by the tribunal on application by the claimant to allow the said word-limit of 5,000 words to be exceeded.
As set out in Paragraph 2 of the Record of Proceedings, dated 15 August 2012, of the Case Management Discussion held on 15 August 2012, to consider the respondent’s representative’s application, I stated:-
“It was apparent from the submissions of the representatives that the issue of the length of the claimant’s witness statement has not been able to be resolved, in advance of this hearing, and that it will require, subject to what is set out below, a further hearing in order to determine the respondent’s application. In light of the terms of Rule 17(2) of the Industrial Tribunals Rules of Procedure 2005, which requires that any determination of a person’s civil rights or obligations shall not be dealt with in a Case Management Discussion, I was satisfied that these issues would require to be considered and determined at a pre-hearing review. I was satisfied that this was consistent with the practice of this tribunal, albeit I acknowledge that a different interpretation of the above Rule may apply in Great Britain and indeed has been consistently applied by this tribunal in a number of cases, including McNally v Northern Ireland Fire & Rescue Service & Others [2008] NIFET 46; Bowers v Amicus (MSF) [2007] NIFET 161; and O’Prey v National Australia Group Ltd [77/04 FET] (contrast in Great Britain, McBride v Standards Boards for England [2009] UKEAT/0092). In the event, there was no dispute between the representatives that a pre-hearing review should be arranged to determine the said application. It was further agreed, in the circumstances, and having regard to the terms of the overriding objective, and, in particular, the dates already arranged for hearing of this matter, that ‘short’ notice should be given for this pre-hearing review. It was agreed, and I so ordered, that a pre-hearing review would be listed for hearing on:-
Friday 24 August 2012 at 12.00 pm;
to consider the following issues:-
‘(i) Whether the respondent’s application to strike-out and not admit in evidence, at the substantive hearing of this matter, the claimant’s witness statement, in whole or in part, should be determined at the pre-hearing review and not by the tribunal conducting the substantive hearing?
(ii) If the answer to the first issue is that the said application should be determined at the pre-hearing review, whether the said application should be granted or refused?
(iii) If the answer to the second issue is that the said application should be granted, what further and other case-management directions and/or orders are required to be made by the tribunal for the substantive hearing?’.”
1.4 Further, at the said Case Management Discussion on 15 August 2012, as set out in Paragraph 4 of the said record, I raised my considerable concerns about the agreed statement of legal and factual issues lodged on 2 July 2012, on foot of the tribunal’s previous order:-
“ …
In the circumstances, in light of this application, it has been necessary for me to further consider the agreed statement of legal and factual issues which was provided to the tribunal, following the above interlocutory process. It has to be noted that this is an agreed statement and has been agreed by two experienced legal representatives. In this regard, I have particular concern when I note that there are, in essence, only three factual issues set out in the said statement. Indeed these three issues are merely generalised questions and in no way set out, in my judgment, the factual issues which each party clearly intends to require the tribunal to determine in order to prove and/or defend the claimant’s claims. I fully appreciate that this is a complex matter, in circumstances where the claimant is bringing a claim of detriment for making a protected disclosure contrary to Article 70B of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), about which there would also appear to be a time-issue; but also that she is making a claim of ‘ordinary’ unfair constructive dismissal; but also a claim of unfair constructive dismissal for the reason, or if more than one, the principal reason, that the claimant had made a public interest disclosure (Article 134A of the 1996 Order). For example, as seen in Whistleblowing Law and Practice, Second Edition, John Bowers, Paragraphs 8.1 – 8.17 the various legal and factual issues relating to any such claim of constructive dismissal, pursuant to Article 134A of the 1996 Order are complex and require, therefore, such issues to be fully and properly identified. Even in relation to the claim of ordinary unfair constructive dismissal, the issues set out in the statement do not properly set out the fundamental breach of contract relied upon and/or the various relevant factual issues which will require to be proven in connection therewith. The factual issues relating to the time-issue are not addressed in the statement. In the circumstances, it was agreed, and I so ordered, that an agreed statement of legal and factual issues must be lodged with the Office of the Tribunals by 12.00 pm on Tuesday 21 August 2012, which will address the above issues.”
1.5 On 21 August 2012, an amended statement of legal and factual issues, agreed by the representatives, was lodged with the tribunal, together with an amended witness statement from the claimant which was stated to have been reduced from 50 pages to 23 pages and which I was later was informed, during the course of this hearing, amounted to approximately 14,000 words.
2.1 In a series of decisions of this tribunal, it has long been recognised that a Chairman, having regard to the terms of Rule 17(2) of the Rules of Procedure, has the necessary power, in his/her discretion, to determine at a pre-hearing review, on foot of an application by a party, whether to strike-out and not admit in evidence a party’s witness statement, in whole or in part, in advance of the substantive hearing; albeit, subject to the guidance which, in my judgment, would still seem to be relevant, seen in the judgment of Mummery LJ in Beazer Homes Ltd v Stroud [2005] EWCA Civ 265, when he stated:-
“ …
10 In general, disputes about the admissibility of evidence in civil proceedings are best left to be resolved by the Judge at the substantive hearing of the application or at the trial of the action, rather than at a separate pre-hearing review. The Judge at a pre-hearing review on admissibility will usually be less well-informed about the case. Preliminary hearings can also cause unnecessary costs and delays.
11 In the present case no good reason is apparent nor has one been advanced from departing from the usual practice. It has not been suggested that this is one of those cases in which the ruling on admissibility would dispose of or abbreviate the substantive application … .”
(See further cases of McNally, Bowers and O’Prey, referred to above, but also the guidance of the Court of Appeal in the House of Lords in SCA Packaging Ltd v Boyle & Another [2009] UKLH 37 in relation to determining issues at a pre-hearing review).
2.2 Indeed, both representatives, at this hearing, did not seriously dispute, in light of the above authorities, that the tribunal had such a discretion to determine at a pre-hearing review, whether to strike-out the claimant’s witness statement, in whole or in part. However, the main focus of the hearing related to how this discretion should be exercised, not least in the context of the many recent dicta, to which further more detailed reference shall be made elsewhere in this decision, both in the Court of Appeal in Northern Ireland and the Employment Appeal Tribunal and Court of Appeal in England and Wales, in relation to the importance of case-management but also the full and proper identification of issues in advance of the substantive hearing.
2.3 The respondent’s representative accepted that, if she had been faced with an application by the claimant’s representative, in advance of 6 August 2012, in accordance with the orders made by the tribunal at the Case Management Discussion on 3 May 2012, as set out in the Record of Proceedings dated 11 May 2012, for the claimant to be allowed to exceed the 5,000 word-limit she probably would have accepted an increase of up to 7,500 words, having regard to the issues which were likely to be required to be determined by the tribunal. The claimant’s representative, as she had done at the Case Management Discussion, did not seek to dispute that she should have made an application, on behalf of the claimant, either at the time of the Case Management Discussion on 3 May 2012 or in the period between that date and the service of the claimant’s witness statement on 6 August 2012. Indeed, I noted that, following what I had stated at the Case Management Discussion on 15 August 2012, as set out in the Record of Proceedings dated 15 August 2012, as referred to above, the claimant, in her amended witness statement had been able to reduce her witness statement from some 20,000 to some 14,000 words. The claimant’s representative confirmed she had addressed the issues raised by me at that Case Management Discussion, as set out in the said record, with the claimant and had hoped the claimant would reduce her witness statement to some 10,000 words; but she emphasised to me that the claimant had insisted that she wished the matters set out in the amended statement remain and that since the amended witness statement was the witness statement of the claimant and not a witness statement, drafted by her representative, she had not felt able, in the circumstances, to compel the claimant to further reduce the length of her witness statement.
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.
Indeed, I am confirmed in my view, as set out above, by the comments in the White Book on the Civil Procedure Rules in Great Britain, albeit these Rules do not apply in Northern Ireland, but where use of witness statements is much more frequent than in Northern Ireland. The Rules of Procedure for this tribunal expressly provide (see Rule 10(2)r) for orders to be made for the preparation and exchange of witness statements. Surprisingly, given the emphasis on case-management in all Courts, there is not yet a similar Rule in the Rules which apply in the High Court and/or County Court in Northern Ireland. It is stated at Paragraph 32.4.21:-
“A party’s awareness of the Court’s wide powers to control evidence may encourage them to apply to the Courts for an order striking-out part of, or the whole of, a witness statement served on them by their opponent. Such an application might be made, for example, on the ground that the material sought to be struck-out is irrelevant or would unnecessarily lengthen the proceedings, or is disproportionate (as well as, of course, on the ground that its disclosure would be in breach of a privilege enjoyed by the party). Where an application is made during trial, the Judge is well placed to determine whether particular passages in a witness statement have real value or are irrelevant and/or disproportionate. A Judge asked to approach such questions at the interlocutory stage is at a disadvantage and should only strike-out proffered evidence if it is quite plain that, no matter how the proceedings may look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it (Wilkinson v West Coast Capital [2005] EWHC 1606 (CH), July 22nd 2005, Unreported Mann J). The Court must be on its guard to ensure that costs and delays are not increased by ill-conceived applications to strike-out witness statements.”
3.1 Before determining the respondent’s application further, I considered further the amended agreed statement of issues which had been provided to the tribunal, immediately prior to this hearing. In contrast to the earlier statement of issues, there were, at least, further factual issues set out, and which more properly reflected the issues which the tribunal will undoubtedly have to determine. However, as discussed in some detail during the course of this hearing, even the amended statement of issues still does not, in my judgment, fully and properly address all the issues which will require to be determined in this matter and to which I had drawn the attention of both representatives at the Case Management Discussion on 3 May 2012. Indeed, although I have always understood the claimant was making a claim of ‘ordinary’ unfair constructive dismissal, as well as a claim of automatic unfair constructive dismissal, pursuant to Article 134A of the 1996 Order, the former claim had not been properly identified in the statement of issues. Further, for example, whether the claim of the claimant is ‘ordinary’ unfair constructive dismissal or, in the alternative, automatic unfair constructive dismissal pursuant to Article 134A of the 1996 Order, the issues, both legal and factual, relating to either claim of constructive dismissal, in my judgment, have not yet been fully and properly addressed. Indeed, as became clear during the submissions made by the claimant’s representative, in relation to various paragraphs of the claimant’s amended witness statement, I was informed that ‘the last straw doctrine’ was to be relied upon in relation to a series of incidents referred to in the claimant’s witness statement. As I pointed out, this was not readily apparent from the amended statement of issues. Further, I remained uncertain, despite the submissions of the claimant’s representative what was the fundamental breach of contract relied upon by the claimant which forced the claimant to resign; and, in particular, in this context, whether the claimant was relying on, for example, breach of the implied term of trust and confidence or on some other express and/or implied term. If so, the amended statement, in my judgment, did not make this clear, as it was required to do. I had already referred, as set out above, in previous Records of Proceedings to the particular difficulties/ issues to be addressed in a claim, pursuant to Article 134A of the 1996 Order, where constructive dismissal, as opposed to a dismissal by an employer, is relevant. Given the failure of the representatives to properly identify, in an agreed statement of issues, the various legal and factual issues to be relied upon by either party, despite my various requests for them to do so, as seen above, it is possibly not surprising therefore that the present difficulties, in relation to the contents of the claimant’s amended witness statement, have not been properly addressed to date. A witness statement, as with a reply to a Notice for Additional Information, is not a substitute for a proper statement of identified issues. As I indicated to the representatives, a further amended agreed statement of issues will require to be drafted and lodged with the tribunal, as a matter of urgency (see later). If Counsel is to be instructed by either party in this matter, I think that it may be helpful if Counsel is involved in any re-drafting of any amended statement of issues and/or in settling of any further witness statements in this matter. Despite the absence of a revised finalised agreed statement of issues, I decided, having regard to the terms of the overriding objective, I should, insofar as I was able to do so, to determine the issues, the subject-matter of this pre-hearing review and not to await the lodgement of a revised/finalised statement.
3.2 In determining this application, as I have indicated above, I have no doubt that I am required, in light of the various recent decisions/guidance, both in this jurisdiction and Great Britain, to have proper regard to the importance of case-management and the proper identification of issues, when determining this application.
In Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, Morgan LCJ approved the judgment of Girvan LJ in Peifer v Castlederg High School and Western Education & Library Board & Another [2008] NICA 49, when he stated, inter alia, after reference to the terms of the overriding objective, to be found in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005:-
“ … Dealing with cases justly involves dealing with cases in ways which are proportionate to the complexity and importance of the issues ensuring that the case is dealt with expeditiously and fairly and the saving of expense. Parties and practitioners are bound to conduct themselves in a way which further those overriding objectives. Having regard to the imperative nature of the overriding objectives the tribunal should strive to avoid time-wasting and repetition. Parties should be required to concentrate on relevant issues and the pursuit of irrelevant issues in question should be strongly discouraged. Our system of justice properly regards cross-examination as a valuable tool in the pursuit of justice but that tool must not be abused. Tribunals must ensure proper focus on the relevant issues and ensure that the time taken in cross-examination is usefully spent. The overriding objectives, which are, of course, always intended to ensure that justice is done, impel a tribunal to exercise its control over litigation before it robustly but fairly. Tribunals can expect appellant supervisory Courts to give proper and due weight to the tribunal’s decision made in the fulfilment of their duty to ensure the overriding objectives. The tribunal should not be discouraged from exercising proper control of proceedings to secure those objectives through fear of being criticised by a higher Court which must itself give proper respect to the tribunal’s margin of appreciation in the exercise of its powers in relation to the proper management of the proceedings to ensure justice, expedition and the saving of costs … .”
In Veitch v Red Sky Group Ltd [2010] NICA 39, Girvan LJ, having referred to his judgment in Peifer and the terms of the overriding objective, stated:-
“ … The Court indicated the tribunal should feel encouraged to set time-limits and timetables to keep proceedings within a sensible timeframe. In many instances unnecessary protracted oral evidence could usefully be avoided by requiring a party to ensure that the evidence-in-chief of witnesses shall be provided in the first instance in a written statement with the witness then being available for cross-examination only.”
Indeed, in this particular case, at the Case Management Discussion on 3 May 2012 after making orders for the preparation and exchange of between the parties, I ordered, as suggested in Veitch, that the witness statements would be pre-read by the tribunal and would not be allowed, subject to any other application to the tribunal; and the tribunal would immediately commence with cross-examination of the witness, who had provided the said witness statement. In determining the issues in this application, it is necessary, in my judgment, to remind the parties and their representatives of their duty to assist the tribunal to further the terms of the overriding objective.
In Fairbank v Care Management Group [UKEAT/0139/12], Mr Justice Slade referred to the judgment of Mummery LJ in Commissioner of the Police Metropolis v Hendrix [2003] ICR 530 at Page 544, Paragraphs 53 and 54, when he said:-
“53 I would add a few words on the case-management aspects of a case like this, where the complaints involve numerous instances of acts by many different people over a long period. As appears from the directions already given, the Tribunal Chairman is well aware of the importance of directions hearings to ensure the case is ready for hearing and to explore ways of saving time and costs.
54 Before the application proceed to a substantive hearing the parties should attempt to agree a list of issues and to formulate proposals about ways and means of reducing the area of dispute, the number of witnesses and the volume of documents. Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations. The parties’ representatives should consult with one another about their proposals before requesting another directions hearing before the Chairman. It will be for him to decide how the matter should proceed, if it is impossible to reach a sensible agreement.”
This dicta, although dealing with a different set of circumstances and a continuing discrimination case, clearly also has relevance to a case such as this. In the case of Price v Surrey County Council & Another [2011] UKEAT/0450, a public interest disclosure case/constructive dismissal case, Carnwath LJ, as he then was, commented on the need for Employment Judges to exercise control over the form list of issues, even when agreed between the parties, but also in a postscript, stated as follows:-
“ … It seems most unfortunate that the case turned into such a prolonged battle before the tribunal, which must have been painful for all those involved, and expensive in time and money. Many of their allegations were peripheral and others were exaggerated; the allegations of corruption were unsustainable. The emphasis of a long list of individual ‘detriments’ distracted attention from the issues of substance. All these elements must have added considerably to the length of the case, and to the difficulty of the tribunal in finding the wood for the trees. Provision of basic legal help to unrepresented litigants is important in the interest of efficiency and economy of the justice system for the public, as much for accessibility to the individual parties.”
In Digby v East Cambridgeshire District Council [2006] UKEAT/0522/06, His Honour Judge Clarke, following the judgment of Langstaff J in the case of Krelle v Ransom [2006] AER(D) 166 held:-
“A tribunal has a discretion, in accordance with the overriding objective, to exclude relevant evidence which is unnecessarily repetitive or only or marginal relevance in the interests of proper modern day case-management. However that discretion must be exercised judicially. It may properly be challenged on appeal on Wednesbury principles. The guiding principle is to ensure justice between the parties.”
He also referred to the judgment of Mummery LJ in ALM Medical Services Ltd v Bladon [2002] IRLR 807, when at Paragraph 15 he stated:-
“A party is entitled to adduce evidence relevant to the issues to the case and to put questions on relevant matters to the other party and to its witnesses. It is for the tribunal, with the assistance of the parties and their representatives, to identify the relevant issues for a decision and to exercise its discretionary case-management powers to decide whether the evidence adduced or the questions put to the witnesses in cross-examination are relevant.”
In the case of St Christopher’s Fellowship v Walters-Ennis [2010] EWCA Civ 921, which was followed in Fairbank, the Court of Appeal held that:-
“The real issues would have been clearer, the hearing shorter and the judgment of the ET more focused, if there had been drastic pruning at the pre-hearing Case Management Discussion to exclude peripheral and minor issues from the list agreed by the parties.”
In a recent decision, Underhill J in the case of HSBC Asia Holdings BV & Another v Gillespie [2010] UKEAT/0417, reviewed many of the above authorities and also the present emphasis in the Law Courts but also Employment Tribunals of proactive judicial case-management, when he approved the observation of Langstaff J in Krelle and HH Judge Clark in Digby referred to above.
Underhill J, having confirmed that any evidence, to be admissible, must be relevant also stated that relevance is not an absolute concept and evidence may be, as it sometimes put, ‘logically’ or ‘theologically’ relevant but nevertheless too marginal or otherwise unlikely to assist the Court for its admission to be justified.
However, Underhill J in HSBC Asia Holdings also indicated that what should be done in any case may vary, depending on the circumstances, but he also reiterated the warnings, previously referred to in Beazer Homes (see also O’Prey referred to above). In Paragraph 13(7) of his judgment he stated, as follows:-
“(7) The fact that evidence is inadmissible because it is insufficiently relevant does not, however, mean that it is necessary to take steps to exclude it in every case, and certainly not to seek to do so interlocutorily or at the outset of a hearing. On the contrary, Employment Tribunals are consistently presented with the relevant evidence; but most often it is better to make no fuss and simply disregard it or, if the evidence in question is liable to prejudice the orderly progress of the case, to deal with it by a ruling in the course of the hearing. In the generality of cases, the cost and trouble in a pre-hearing ruling are unjustified, further where there is genuine room for argument about the admissibility of the evidence, a tribunal at a preliminary hearing may be less well placed to make the necessary assessment as Mummery LJ observed in Beazer Homes Ltd v Stroud [2005] EWCA Civ 265 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 or the trial of the action, rather than at a separate preliminary hearing. The 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.’
(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 a substantial expense or inconvenience. … ”
4.1 Indeed, it is apparent, in this particular case, on the basis of the submissions of the respondent’s representative, that if the claimant’s amended witness statement is to be admitted in evidence, as it presently has been drafted, the witness statements of the respondent’s witnesses, in response, will necessarily be more lengthy as they will wish, in the interests of justice, to be allowed to respond to the various allegations made against each of them, as set out in the claimant’s amended witness statement as presently drafted. Indeed, I suspect some of the respondent’s witnesses will not require to make witness statements and be called to give evidence if the claimant’s witness statement is re-drafted – with consequential saving of time and expense. I am satisfied, having regard to the above authorities, that is appropriate for me to seek to put an appropriate word-limit on the claimant’s amended witness statement where I am satisfied it is proportionate to do so, and has real advantages in terms of economy, and in accordance with the terms of the overriding objective and in the interests of proper modern day case-management, as referred to in Digby. I do not think, this particular case, in light of the above authorities, is a case where it is appropriate to make no fuss and to simply disregard the fact that the claimant has totally ignored a word-limit ordered by the tribunal (see HSBC Asia Holdings).
4.2 In deciding to intervene by imposing a word-limit, and not to ‘red pen’ paragraphs or part of paragraphs of the claimant’s witness statement, I also am very conscious of the warnings seen, in particular the observations of Mummery LJ in Beazer Homes Ltd. However, having heard the submissions of both representatives, in relation to the terms of the claimant’s amended witness statement, I noted that the respondent’s representative was not able to point out, unlike, for example, in the case of O’Prey and/or Bowers and/or McNally, particular paragraphs/sections of the claimant’s witness statement which could be properly excluded in full; albeit there were certain paragraphs and/or parts of paragraphs which she criticised and stated should be re-drafted to exclude either irrelevant material and/or material which was of marginal or peripheral reference. In particular, the respondent’s representative pointed out that, although Paragraphs 1 – 22 of the claimant’s amended witness statement, which formed approximately 20% of the said statement, referred to the period 2008 – 2011, the vast majority of the remaining paragraphs of the claimant’s amended witness statement (Paragraphs 24 – 113) related to the relatively short time period of September 2011 culminating in the claimant’s resignation on 18 November 2011. It also has to be recalled, in this context, that it was in or about late 2008 when the alleged public interest disclosures, relied upon by the claimant, took place. Even allowing for the whistleblowing elements of this claim, and their added complexities, there seems to me to be a considerable amount of evidence contained in those latter paragraphs, in particular, which is either irrelevant, or at best, is of marginal/peripheral relevance and which, if allowed to remain in the claimant’s amended witness statement, will clearly affect the length of the hearing and/or put the respondent’s witnesses, in preparing a response, to considerable additional expense or inconvenience (see HSBC Asia Holdings). Even, in a case of constructive dismissal, relying on the ‘last straw’ doctrine, which only emerged, as indicated above, during the course of this hearing, the issues for such an unfair constructive dismissal claim are well-known and, in my judgment, it cannot be necessary in this case to set out, in order to prove such a claim, the amount of factual detail which has been provided by the claimant in these paragraphs of her witness statement. Further, a witness statement is for the claimant to set out facts and not to make submissions. It appears to me that, in many of these disputed paragraphs, in particular in relation to Paragraphs 24 – 113, the claimant appears to do so and/or to provide additional information of what else took place on a particular day/incident, which is not relevant or at best could only be of marginal/peripheral relevance to what she wishes to show (see, in particular, for example, Paragraphs 24, 44, 46, 49, 102 and 103). Whilst I cannot dispute, as a Chairman determining this application, in advance of the substantive hearing, that the fact the Route Cause Analysis document was produced by the respondent and has relevance to the claimant’s claim, I have considerable concern that the claimant has then proceeded to go much further, in her amended witness statement, than she is required to do in order to prove her claim, not least of unfair constructive dismissal, in her apparent detailed analysis of and/or submissions in relation to that document.
4.3 Taking account of the various authorities to which I have referred in previous paragraphs, I am therefore not satisfied, in this particular case, that it is appropriate, in the exercise of my discretion, to merely exclude/’red pen’ certain paragraphs of the claimant’s amended witness statement. Further, in the absence of the necessary clarity to enable me to do so, and noting that the respondent’s representative herself was unable to point to specific paragraphs to be excluded and having taken account of the observations of Mummery LJ in Beazer Homes Ltd, I consider that the proper way to determine this particular application is to require the claimant to re-draft her amended witness statement. I consider, in this particular case, it is an appropriate use of my powers of case-management and in accordance with the terms of the overriding objective In doing so, she must take account of what I have stated in this decision but also the various authorities referred to herein and, as a consequence, to reduce the length of her amended witness statement. I am satisfied that, taking account of the issues in this case, that this can and must be done by her, no doubt with the assistance of her legal representative. I note the apparent ease with which she was able to reduce the size of the witness statement by some 6,000 words, following my earlier intervention at the Case Management Discussion on 15 August 2012. I also have had regard to the fact that the claimant’s representative herself had hoped to achieve an amended witness statement which did not exceed 10,000 words. I remind the claimant and her representative, it is not for the claimant or her representative to case-manage her claim but this is for the tribunal. Both she and her representative are required to not only assist the tribunal to further the terms of the overriding objective but also to comply with the tribunal’s case-management directions/orders. I am satisfied to impose a ‘new’ word-limit is a more appropriate way to determine this application, not least given that the claimant has the assistance of an experienced legal representative but also taking account of the fact that, unlike the tribunal who will hear the substantive case, I am inevitably less well-informed about all the details of this claim at this stage. As I indicated previously, when imposing a word-limit, any extension of that word-limit cannot be arbitrary and must not become the subject of a ‘bidding war/word competition’. However, having listened to the submissions of both representatives, and having considered the terms of the claimant’s amended witness statement, in light of the likely issues which will require to be determined by the tribunal, I have considerable sympathy for the view expressed by the respondent’s representative that, even allowing for the additional whistleblowing elements of this claim, that this claim, which is otherwise an unfair constructive dismissal claim, should have been able to have been dealt with by the claimant, in a witness statement not exceeding 7,500 words. Although I acknowledge that the whistleblowing elements of the claimant’s claims add to the issues to be dealt with in the claimant’s witness statement and must be taken account of, I do not accept the word-limit, suggested by the claimant’s representative is appropriate in what is otherwise, but for the whistleblowing elements, a constructive dismissal claim. I accept to impose a word-limit can never be an exact science. However, despite the absence of a finalised statement of issues, and on the basis of the issues, both legal and factual, which I understand to be the likely subject-matter of the claimant’s claim, I consider, and I so order, the claimant’s witness statement must not exceed 8,000 words. I appreciate that this will require the claimant to further amend her witness statement in order to comply with the tribunal’s order and she must be given time to do so (see later).
4.4 Arising out of this decision, it is apparent that a number of further case-management directions/orders will therefore require to be made and, in the circumstances, I have decided that it is appropriate to arrange a further Case Management Discussion, as a matter of urgency, in order to do so. At that Case Management Discussion, I will make orders in relation to a timetable for the preparation and exchange of the claimant’s witness statement, the respondent’s witness statements and/or any other supplementary witness statement by the claimant. I will also consider, at that Case Management Discussion, whether it is necessary for the tribunal to impose any different or other word-limit to that originally ordered, as set out in the Record of Proceedings, dated 11 May 2012, of the Case Management Discussion on 3 May 2012, in light of the amended order, as set out above, in relation to the respondent’s witness statements and/or whether any amendment is required to be made to the size of the bundles, as previously ordered, in light of the decisions made at this pre-hearing review. In addition, I am satisfied that, as indicated above, an amended agreed statement of legal and main factual issues must be prepared by the representatives and lodged with the Office of the Tribunals. I order that this further amended statement must be lodged with the Office of the Tribunals within 14 days of the date when this decision is recorded in the Register and issued to the parties. In light of the foregoing, it was agreed, and I so ordered, that the substantive hearing in this matter, listed from 24 September 2012 – 5 October 2012, should be postponed and new dates for hearing will be ordered at the above Case Management Discussion. I appreciate that there can be a difficulty, especially for the respondent’s representative, to ascertain the availability of the respondent’s witnesses and therefore, at the next Case Management Discussion, both representatives should have ascertained witness availability for the period from November 2012 – February 2013 and, as appropriate, liaise in relation to potential agreed dates for hearing.
5.1 At the conclusion of this hearing, the respondent’s representative made an application for costs pursuant to Rule 40 of the Rules of Procedure on the grounds that the claimant and/or her representative had conducted the proceedings unreasonably and, in particular, had required the respondent’s representative to attend a Case Management Discussion on 15 August 2012. The respondent’s representative sought costs in the sum of Ł200.00 plus Value Added Tax. Although, it was admitted that the claimant and her representative failed to make any application for an extension of the word-limit, as previously ordered by the tribunal at the hearing on 3 May 2012, I am satisfied that, even if it had been made, there would not have been any agreement and the likelihood is that this pre-hearing review would have had to be arranged in any event in order to determine these issues. Clearly failing to make such an application, could be considered to be unreasonable conduct; but I am not satisfied, in the exercise of my discretion, in these circumstances where a pre-hearing review would have been inevitable in the circumstances, that an Order for Costs should be made. I therefore refuse the application for an Order for Costs. In doing so, I also took into account that, at the hearing on 15 August 2012, it became apparent that the agreed statement of legal and factual issues which had been lodged with the tribunal was not adequate and both representatives had responsibility for the inadequate contents of that agreed statement. In addition, as is well-established in the relevant authorities in relation to Orders for Costs in the industrial tribunals, such Orders are the exception rather than the rule and costs do not automatically follow the event. In refusing to make any Order for Costs against the claimant, on the application of the respondent, I took into account the sensible co-operation and liaison between the representatives in relation to these matters, where each have considered it possible to do so.
Chairman:
Date and place of hearing: 24 August 2012, Belfast
Date decision recorded in register and issued to parties: