Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/557_13IT.html
Cite as: [2013] NIIT 557_13IT, [2013] NIIT 00557_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 557/13

1279/13

CLAIMANT: Carol Crockett

RESPONDENTS: 1. Police Federation of Northern Ireland

2. Harp & Crown Credit Union

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

1. It is ordered that:-

(i) The claimant’s witness statement must be amended, so that the maximum number of words does not exceed 8,250 words.

(ii) The witness statements of the claimant’s witness, PR and IM, must be amended, so that the maximum number of words, in each statement, does not exceed 4,000 words.

(iii) The previous order by the tribunal, setting out the timetable for the preparation and exchange of the said witness statements is amended, as set out in the decision, subject to any objection/application by either party.

2. Further interlocutory orders, as set out in the decision, were made by the tribunal, in relation to medical evidence to be relied upon by either party.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Mr S Mearns, Solicitor, of John Ross & Son, Solicitors.

The respondents were represented by Mr C Hamill, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.

Reasons

1.1 The claimant presented a claim to the tribunal on 17 March 2013 in which she made a claim of unfair constructive dismissal and/or claims relating to public interest disclosure and/or breach of contract. The respondents presented a response to the claimant’s claims on 22 April 2013, in which it denied liability (Case Reference No: 557/13). The claimant presented a further claim to the tribunal dated 4 July 2013 against the second respondent, which, in essence, related to a further allegation of detriment, the claimant having made a protected disclosure. The second respondent presented a response on 22 August 2013 in which it denied liability for the claimant’s further claim (Case Reference No: 1279/13). By an Order dated 19 August 2013, the tribunal made a ‘Consolidation Order’ in which both claims were to be considered together by the same tribunal.

1.2 This matter, as it involves claims involving issues of protected disclosure, pursuant to the terms of the Employers Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) (‘whistle blowing claims’) has, in accordance with the tribunal’s normal practice relating to such claims, been the subject of detailed case-management by the tribunal and from the agreed statement of legal and factual issues, dated 27 June 2013, of the Case Management Discussion on 20 June 2013, it is apparent there are many issues arising out of these ‘whistle blowing claims’ which will require to be determined by the tribunal during the course of the substantive hearing. These include:-

(1) “Whether the claimant was an employee of the second respondent and/or whether the claimant was a worker as defined under Article 67K of the 1996 Order, as amended.’

(2) From the statement of issues it is apparent that the claimant is making a claim pursuant to Article 70B of the 1996 Order, namely:-

‘that a worker has the right not to be subject to any detriment by the act or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure;’

but also that she has been unfairly constructively dismissed, pursuant to Article 134A of the 1996 Order which provides:-

‘that if an employee is dismissed shall be regarded for the purposes of this Part if unfairly if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.’

(3) For the purposes of the claim, pursuant to Article 70B of the 1996 Order, there is also a claim for personal injury and/or injury to feelings.

(4) As appears from the statement, issues requiring to be determined by the tribunal involve determination of:-

(aa) ‘Whether the claimant has made a ‘qualifying disclosure’ pursuant to Article 67B of the 1996 Order.’

(bb) “Whether the alleged disclosures were made in good faith by the claimant.”

1.3 I accept, in general terms, that the issues to be determined in a ‘whistle blowing case’ can be complex, given the various relevant provisions in the 1996 Order and the body of case law that has recently built up in this area of law. Further, it has to be recognised that the claimant’s claim of detriment, arising out of her alleged protected disclosure, has many similarities to a discrimination claim and since the claimant has also an unfair dismissal claim arising out of her alleged protected disclosure, which gives rise to certain further issues. (See further Fecitt v NHS Manchester [2011] EWCA Civ 1190.) But, in a case, where both parties are legally represented, these additional complications should not be exaggerated in the context of proper and appropriate case-management.

1.4 As set out in the Record of Proceedings dated 27 June 2013, the tribunal, in accordance with its normal practice made orders, by consent, in relation to the preparation and exchange of witness statements between the parties. The tribunal set a timetable for the preparation and exchange of those witness statements and, in addition, made the following direction/order:-

“(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.

Witness statements should commence with an introductory paragraph which identifies the witness and explains the relevance of the witness to the claim, eg claimant, line manager, member of interview panel, etc.

The statement should then use the factual issues agreed in the agreed statement of issues and set out the witnesses’ evidence [if any] 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.

(e) Witness statements will not be read aloud to the tribunal, subject to the discretion of the tribunal hearing the case.

(f) Witness statements will be read by the tribunal prior to the commencement of the hearing.

(g) Witness statements must be signed and dated.”

Pursuant to the said Orders of the Tribunal, the claimant’s representative exchanged with the respondents’ representative, in accordance with a revised agreed timetable, the witness statement of the claimant, together with witness statements from three other witnesses, namely:-

PR;

Gavin Walsh; and

1.5 By letter dated 10 September 2013, the claimant’s representative wrote to the tribunal informing the tribunal that the claimant’s witness statement exceeded the 5,000 word-limit and stating:-

“We do not feel this is in any way unreasonable. The average discrimination cases are listed for one week in the tribunal with a word-limit of 5,000 words. This is a case which deals with evidence, complex evidence at that, over the course of some time and has been listed for two weeks. We feel it is in accordance with our client’s right to a fair hearing that she is able to provide complete evidence to the tribunal.”

By an e-mail dated 23 September 2013, the claimant’s representative confirmed that the claimant was seeking a word-limit for the claimant’s witness statement only, for not more than 10,000 words and confirming that each of the remaining witness statements fell within the limit of 5,000 words. By e-mail dated 24 September 2013 the respondents’ representative wrote to the tribunal in relation to the claimant’s representative’s application to extend the word-limit for the claimant’s witness statement to 10,000 words, stating:-

“In the view of the respondents the witness statement of Carol Crockett contains an excessive amount of detail which is not required and includes matters which are not relevant for the tribunal.

In our opinion 10,000 would be also excessive. The respondents would not have a difficulty if the claimant’s witness statement was limited to 6,500 to 7,000 which we believe would be more than ample to set out the claimant’s evidence in the matter. We note that the claimant’s witness statement currently runs to 11,334 words and therefore as currently drafted is more than even the 10,000 word-limit sought.

As further observation we note contrary to the assertion that the claimant’s other witness statements are within the 5,000 word-limit, this is not strictly speaking accurate in that one witness statement runs to 5,196 words and another to 5,244 words.”

1.6 In light of the foregoing, the tribunal arranged a Case Management Discussion to consider the said application. After having obtained sight of a copy of the claimant’s witness statement, the tribunal decided that the issues which would require to be determined by the tribunal, on foot of the claimant’s application, would be better considered at a pre-hearing review, having regard to the provisions of Rule 17(2) of the Rules of Procedure, which provide that:-

“Any determination of a person’s civil rights or obligations shall not be dealt with in a Case Management Discussion.”

It is also to be noted that similar applications in this tribunal have been determined at a pre-hearing review rather than at a Case Management Discussion. At the commencement of this hearing, both representatives, properly in my judgment, and having regard to the terms of the overriding objective, agreed that the Case Management Discussion should be converted into a pre-hearing review, with short notice. During the course of this hearing, reference was made to the witness statements of PR and IM, which had been referred to in the e-mail from the respondents’ representative dated 24 September 2013. I was satisfied that, insofar as relevant and necessary, I should also deal with any issues arising out of these witness statements and the fact that these witness statements were also in excess of the 5,000 word-limit set by the tribunal at the previous Case Management Discussion, contrary to what had been stated by the claimant’s representative in his e-mail dated 23 September 2013; albeit it must be recognised by a relatively small margin.

1.7 The claimant’s representative properly informed me that, following the recent discovery of certain documentation from a Notice Party (the PSNI'), following an Order of the Tribunal, the claimant would now require to serve on the respondents’ representative a further short witness statement dealing with the issues arising from this recently discovered documentation. For the purposes of this pre-hearing review, it was agreed by the representatives that the claimant’s ‘original’ witness statement consisted of some 11,334 words and that taking the additional witness statement of the claimant into account the claimant’s witness statements would now be in the region of ‘just short of 12,000 words’. Both representatives confirmed to me that they remained confident that this matter could be determined by the tribunal in the 10 day period for hearing previously agreed, namely 18 – 29 November 2013. They did so in the full knowledge of the potential number of witnesses each party might require to be called in this matter. (See later.)

2.1 Before dealing with the specific details of this application by the claimant’s representative which was objected to by the respondents’ representative, I think it is helpful to set out, in some detail, the relevant case law and Rules of Procedure, which are relevant to this application. I should say that I was somewhat disappointed that neither of the representatives for the claimant or the respondents referred me to any relevant case law in this jurisdiction or elsewhere. In the circumstances, I referred both representatives to decisions of this tribunal available on the tribunal’s website and/or Bailii and provided them with copies, to which further reference shall be made elsewhere in this decision. I gave them every opportunity, if they wished to do so, to make any further submissions, before the conclusion of the hearing in light of the said decisions. Neither representative did so.

2.2 I have no doubt that I am required, in light of 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 Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, it is provided:-

“(1) The overriding objective of these Regulations and the Rules in Schedules 1 … is to enable Tribunals and Chairmen to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

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

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issue;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

(3) The Tribunal or Chairman shall seek to give effect to the overriding objective when it or he –

(a) exercise any power given to it or him by these Regulations or the Rules in Schedule 1 …, or

(b) interprets these Regulations or any Rule in Schedule 1 …

(4) The parties shall assist the Tribunal or the Chairman to further the overriding objective.”

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 & Another [2008] NICA 49, when he stated, with reference to the terms of the overriding objective:-

“ … dealing with cases justly involves dealing with cases in ways which are proportionate to the complexity and importance of the issues and 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, tribunals should strive to avoid time-wasting and repetition. Parties should be required to concentrate on relevant issues in the pursuit of irrelevant issues in question should be strongly discouraged … the overriding objectives, which are, of course, always intended to ensure that justice is done compel a tribunal to exercise its control over the litigation before it robustly but fairly. Tribunals shall expect the 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. Tribunals 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 … .”

2.3 In Fairbank v Care Management Group [UKEAT/0139/12], Mrs 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 she said:-

“53 I would add a few words on the case-management aspects of a case like this, where the complaints involve numerous incidents 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 proceeds 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. A party’s representative should consult with one and other about their proposals before requesting another directions hearing before the Chairman. It will be for him to decide how this matter should proceed, if it is impossible to reach a sensible agreement.”

In 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 of list of issues, even when agreed between the parties. In a postscript, he stated as follows:-

“ … it seems most unfortunate the case turned in 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 woods 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 of the individual parties.”

In Digby v East Cambridgeshire District Council [2006] UKEAT/0522/06 His Honour Judge Clark, following the judgment of Langstaff J in the case of Krelle v Ransom [2006] AER (D) 166 held:-

“A tribunal had a discretion, in accordance with the overriding objective, to exclude relevant evidence which is unnecessarily repetitive or only of marginal relevance in the interest 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 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 issue would have been clearer, the hearing shorter and the judgment of 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 as then was, 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 both in the Law Courts but also Employment Tribunals of proactive judicial case-management, when he approved the observation in Langstaff 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 is 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 BV also indicated that what would 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 elsewhere in this decision). 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 interlocutory or at the outset of a hearing. On the contrary, Employment Tribunals are consistently presented with irrelevant evidence; but most often it is better to make no fuss than 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 costs and trouble in a pre-hearing ruling are unjustified, further where there is general 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 are real advantages in terms of economy (in the broader sense of that term) 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 cause it will seriously affect the estimate for the hearing or where its introduction might put the other party to a substantial expense or inconvenience … .”

2.4 Under Rule 59 of the Industrial Tribunal Rules of Procedure 2005 it is provided:-

“(1) Subject to the provisions of these Rules and any Practice Directions, a tribunal or Chairman may regulate its own procedure.”

Further, under Rule 14 of the Rules of Procedure it is provided that:-

“(1) …

(2) So far as it appears to do so, the tribunal or a Chairman shall seek to avoid formality in his or its proceedings and shall not be bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the Courts. [tribunal’s emphasis]

(3) A Chairman or a tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings.”

2.5 A tribunal regularly, for example, whether at a pre-hearing review or in the course of a substantive hearing, has to consider and determine whether to admit or exclude evidence under its powers relating to evidence sought to be used by a party in the course of proceedings. In exercising its discretion under the said Rules of Procedure, which as seen above are very wide, a tribunal also has to give effect to the terms of the overriding objective.

For example, this can involve a tribunal determining 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 (see McNally v Northern Ireland Fire & Rescue Service & Others [2008] NI FET 46, Bowers v Amicus (MSF) [2007] NI FET 161, O’Prey v National Australia Group Ltd [77/04 FET], Briercliffe v Southern Health & Social Care Trust [74/12], Fraser v ILEX URC Ltd [65/12 FET & 1057/12 and Maguire v Lookers PLc [30/13 FET and 379/13). Sometimes it is not possible for the tribunal to make such a decision at a pre-hearing review and it requires to be made in the course of the substantive hearing, in light of the dicta in Beazer Homes Ltd v Stroud [2005] EWCA Civ 265, as referred to previously.

2.6 In my judgment, it is relevant to note that prior to 4 April 2004, the Rules of Procedure in Northern Ireland did not have a specific Regulation relating to the overriding objective, as set out above. However case law, since that date, not only in the tribunals (see Rogan) but also in the Courts in Northern Ireland, where a similar provision is to be found in Rule 1 of the Rules of the Court Judicature (Northern Ireland) 1980, as amended, has placed considerable emphasis on the terms of the overriding objective, when applying, for example Rules of Procedure in the said respective jurisdictions.

2.7 In this context, it may be helpful to note that, in the White Book on the Civil Procedure Rules in Great Britain, albeit these Rules do not apply in Northern Ireland, an express provision has been made in the Civil Procedure Rules, Rule 32.1, as follows:-

“(1) The Court may control the evidence by giving directions as to –

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which evidence is to be placed.

(2) The Court may use its powers under the Rule to exclude evidence that would otherwise be admissible.”

Indeed, in a commentary at Paragraph 32.4.21 of the White Book it is stated:-

“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 the whole of a witness statement served on them opponent. Such an application might be made, for example, on the ground that the material sought to be struck-out is irrelevant or would unnecessary lengthen the proceedings or is disproportionate … .”

In Northern Ireland the Civil Procedure Rules do not apply and there is no similar Rule to Civil Procedure Rule 32.1 under the Rules of the Court of Judicature (Northern Ireland) 1980, as amended. As seen in Documentary Evidence by Charles Hollander QC, 11^th Edition, Paragraph 26.04, Civil Rule 32.1 has been used in a wide set of circumstances to exclude and/or control evidence.

2.8 It has long been recognised that a Chairman, having regard to the terms of Rule 17(2) of the Industrial Tribunals Rules of Procedure, referred to above, has the necessary power, in his/her discretion, to determine at a pre-hearing review, on foot of an application by a party, whether or not to 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 (see later), as seen in the judgment of Mummery LJ in Beazer Homes Ltd v Stroud [2005] EWCA Civ 265 to which I have previously referred (see Paragraph 10 of the said judgment).

However, Mummery LJ also emphasised, in the course of his judgment, that each case depends on its own facts:-

“(11) In the present case no good reason is apparent nor has one been advanced from departing from the usual practice. It is not been suggested this is one of those cases in which the ruling on admissibility would dispose of or abbreviate the substantive application … .”

See further the cases of McNally v Northern Ireland Fire & Rescue Service & Others [2008] NIFET 46; Bowers v Amicus (MSF) [2007] NIFET 161; O’Prey v National Australia Group Ltd [77/04 FET] but also the guidance of the Court of Appeal in the House of Lords in SCA Packaging Ltd v Boyle & Others [2009] UKHL 37 and Jonathan Bailey Associates (UK) Ltd v Shapland [2003] UKEAT/0957 in relation to determining such issues at a pre-hearing review.

2.9 In a recent decision in relation to witness statements in the High Court in England and Wales, in the case of Cummings and Others v Ministry of Justice [2013] EWHC 48, Mr Justice Tugendhat, as he then was, having commented on the Queen’s Bench Guide in relation to what should be contained in witness statements in England and Wales, also stated, insofar as relevant and material to these proceedings:-

“(8) The disclosure of witness statements which include matters which ought not to be included has a strong tendency to increase costs and delay. This is the opposite of what was intended when the requirement to serve witness statements was introduced as part of the Woolf Reforms.

(9) Before the Woolf Reforms it was they duty of an advocate to distinguish between instructions as to what a particular witness might say, and the evidence-in-chief that the advocate should elicit from that witness. As a result, evidence-in-chief would, if it is skilfully adduced, be short and cross-examination would be confined to the issues. One effect of disclosing witness statements that do not distinguish between matters which are relevant to the issues, and matters which are irrelevant, or relevant only to which points that may arise during the trial, is that matters arise at trial which would not otherwise arise. Thus the time saved by adducing evidence-in-chief in the form of witness statements is lost (and often exceeded) by the time taken on submissions as to what is and is not relevant, and in cross-examination on matters which are of little or of no assistance to the Court. In a case where there is to be trial by the jury, the evidence must be adduced orally in any event … .”

2.10 In Rock (Nominees) Ltd v RCO Holdings [2003] EWHC 80 (CH), the Court had to determine an application to exclude a witness statement which was full of comment and submission, which it clearly considered was inappropriate and required to be excluded. It also referred to the risk for costs entailed by submitting a statement containing such evidence. (See later.)

In light of the authorities referred to previously, there can be no doubt, in my judgment, since witness statements are required to be statements of facts, statements including opinions as to the evidence should be omitted. Statements as to whether a cause of action or an element of it is made out should also be omitted – except, of course, where a witness statement is made by, for example, by an expert, (subject to the normal safeguards that are inserted in any statement made by an expert in relation to their duties to the court/tribunal).

2.11 Although it has long been recognised, as set out previously, that a court/tribunal, in its discretion can exclude a witness statement in whole or in part, in an appropriate case under its case-management powers and that to do so would not normally involve issues relating to Article 6 of the European Convention (Fair Trial), it is of interest to note that, since April 2013, in Great Britain, following the Jackson Reforms, a court has been given further express power to make directions/orders:-

“(a) identifying or limiting the issues to which factual evidence may be directed;

(b) identifying the witnesses who may be called or whose evidence may be read;

(c) limiting the length or format of witness statements.”

As set out above, the court already had such implicit power to make such orders and the express aim of the new Rules is to encourage courts to use its powers more often in appropriate cases, with a view to saving costs. In JD Wetherspoon PLc v Harris and others. [2013] EWHC 1088, the High Court granted an application to strike-out the majority of a witness statement on the grounds that it was an abuse, as it contained recitations of fact based on the documents (rather than direct knowledge), commentary on those documents, argument, submissions and expressions of opinion. The judgment made no express reference to the new powers relating to witness statements. Further, it is of interest to note that, from 1 April 2013, the overriding objective, to which the court must seek to give effect whenever it exercises any powers, or interprets any Rule, under the Civil Procedure Rules, as applied in Great Britain have been amended to enable the court to deal with cases justly ‘ and at proportionate cost’. Since 29 July 2013, in Great Britain, the new Rules of Procedure, which apply to Employment Tribunal, in that jurisdiction, redefined the terms of the overriding objective to include “avoiding unnecessary formality and seeking flexibility in the proceedings and avoiding delay, so far as compatible with proper consideration of the issues”.

2.12 As seen above, reference has been made to issues of costs which may arise in circumstances, where ‘inappropriate’/irrelevant/lengthy witness statements have been sought to be introduced by parties in evidence, with resultant costs and expense and thereby increasing the length of the hearing. Indeed, it should be clearly understood that regardless of the decision made by me, as set out in above, in this pre-hearing review, that this is without prejudice to the tribunal at the substantive hearing exercising its powers of case-management and/or its powers in relation to Order for Costs, where it considers it appropriate and necessary to do so. Indeed, I indicated to the representatives at the hearing of this pre-hearing review, that, given the potential number of witnesses in the matter, regardless of my decision it is likely that there will require to be appropriate timetabling of witnesses by the tribunal at the substantive hearing to enable this matter to be concluded within the period for hearing, as previously agreed and ordered by the tribunal. Having regard to the duties of the representatives under the terms of the overriding objective, I suggested that they should, in advance of the commencement of the substantive hearing, liaise about such matters in order to assist the tribunal at the commencement of the substantive hearing. (See further judgment of Girvan LJ in Veitch v Red Sky Group Ltd [2010] NICA 39 and Peifer v Castlederg High School & Another [2008] NICA 49.)

2.13 Some of the recent decisions to which I have referred above are decisions in Great Britain of the High Court and are not decisions arising from orders made by Employment Tribunals. Given the fact that in court proceedings costs normally follow the event, the sanction of costs is a matter which has always to be very carefully considered by a party and its representatives. As is well-known this tribunal’s powers to order costs are more limited and, in particular, costs do not normally follow the event. Indeed, as has been expressed in many tribunal decisions, ‘costs are the exception rather than the rule’; and a tribunal, in exercising its discretion under its said powers, may have regard to a party’s ability to pay when considering whether the tribunal should make a Costs Order or how much that Order should be. Also, there is a cap on costs in the sum of £10,000.00. Girvan LJ in Peifer v Castlederg High School & Another [2008] NICA 49 made it clear “tribunals should be encouraged to use their increased costs powers … to penalise time-wasting of the pursuit of cases in a way which unduly and unfairly increases the costs falling on opponents …”. However, it has to be recognised that these costs powers, as set out above, are limited. In my judgment, it is therefore of even greater importance that decisions are taken, in an appropriate case, to exclude a witness statement in whole or in part, prior to the substantive hearing. This ensures that costs are not unnecessarily wasted, which in reality may never be able to be recovered, due to the ability of a party to pay and/or the limited powers of a tribunal to order costs and/or the amount of any such costs.

3.1 Despite the fact that the claimant’s representative had made an application for an extension of the word-limit from 5,000 words to 10,000 words, as set out above, the claimant’s witness statement was now just short of 12,000 words. At the conclusion of the submissions by both representatives, the claimant’s representative accepted that, by re-drafting of the claimant’s witness statement, it should now be able to be drafted to come within the said word-limit of 10,000 words. The respondent’s representative continued to maintain that the claimant’s witness statement should be no more than 6,000/7,000 words. The claimant’s representative strongly submitted that the tribunal should not ‘red pen’ paragraphs or parts of paragraphs of the claimant’s witness statement but rather should impose a ‘new’ word-limit and allow the claimant to re-draft her witness statement in accordance with the new word-limit imposed by the tribunal. Under Rule 10(2)( r) of the Industrial Tribunals Rules of Procedure 2005, the tribunal has power to order that a witness statement be prepared or exchanged. As indicated previously, such an Order was made in this case. Interestingly, given the emphasis on case-management by all courts, there is not yet a similar Rule in the Rules of Procedure, which apply in the High Court and/or County Court in Northern Ireland. 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. Again, it was able to be done in the recent decision in the case of Maguire v Lookers Plc [30/13 FET; 379/13]. In the case of Briercliffe v Southern Health & Social Care Trust [2012] (74/12) the tribunal made an Order so that the claimant’s amended witness statement was required to be further amended so the maximum number of words did not exceed 8,000 words.

In Briercliffe, I stated in my decision, as follows, insofar as relevant and material to this decision:-

“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 this particular case, for the reasons set out later in this decision, I was not satisfied that it was appropriate to conduct ‘a red pen type exercise’ but did consider that a ‘new’ word-limit should be imposed by the tribunal.

3.2 Since the industrial tribunals are the only jurisdiction in Northern Ireland to have the express power to order parties to prepare and exchange witness statements there are no relevant decisions of the High Court which would assist my determination of this application. Indeed, these were only introduced in 2004, and there therefore has not been a history/culture in Northern Ireland, unlike in Great Britain, relating to the experience of drafting by representatives of witness statements. It is recognised there is no ‘magic formula’ for drafting of such statements, subject to the guidance, as referred to in the authorities, as set out above. Indeed, there have been many hopeful publications/guidance produced by various bodies in Great Britain, but these are only guidance. It also is clear that there can be not only differences of approach by different representatives to how a witness statement is drafted on behalf of their client. Equally, different Chairmen undoubtedly prefer different ‘styles of ‘drafting’ of such witness statements. Certainly Chairmen do not expect to find in a witness statement large chunks taken out of a particular document where it is apparent that only a small paragraph, for example, is relevant. Some Chairmen prefer to see that small paragraph contained within the witness statement. Equally, other Chairmen to the said specific paragraph in the document, which will then be contained in the trial bundle. I acknowledge and accept that whatever method of drafting is used to refer to a document this can have relevance to the word-limit that has been imposed by the tribunal. Therefore, in considering this application, I had to have regard to the fact that the claimant, for the most part, had adopted the position of setting out, in the course of the witness statement, the specific part/paragraph of the document which she wished to rely upon and which she considered to be relevant to the determination of the issues in this matter. However, where this style of drafting is used, I have no doubt that, where it is necessary to copy a particular part of a document so as to ensure that the tribunal’s attention is focused on the correct part, it must be done succinctly. Similarly, and related to the above, it will not normally be appropriate, in my judgment, for a witness to give their own interpretation of the words used in a document since the meaning, as understood by the reader of the document, is rarely relevant. This, along with any inferences to be drawn, will normally be decided by the tribunal/court. Equally, submissions as to the correct interpretation/ inference are for the representatives to make and not the witness. How these issues are addressed involve, no doubt, issues of style but, more importantly, judgment to ensure that the only relevant and admissible evidence is set out in the witness statement, consistent with the tribunal’s Rules of Procedure and the terms of the overriding objective and the guidance set out in the authorities to which I have referred above.

3.3 I have read, with considerable care, the claimant’s witness statement, in light of the submissions of both representatives but also having regard to what I have stated in the preceding paragraphs of this decision. In light of my decision, as set out below, I am reluctant to set out in great detail my specific concerns about particular paragraphs in the claimant’s witness statement, so as to not to give rise to any risk of prejudice to either party at the substantive hearing by any such specific reference, given that the claimant’s witness statement will require to be re-drafted to comply with the decision made by me in this matter.

By way of way general comment, I have to state that, even allowing for the ‘whistle blowing elements’ of this claim, and their added complexities, there seems to me to be a considerable amount of evidence contained in the claimant’s witness statement, 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 respondents’ witnesses in preparing a response, to considerable additional expense or inconvenience (see HSBC Asia Holdings). I accept the submission of the respondents’ representative that, if the claimant’s witness statement, as presently drafted, is to be admitted in evidence, the witness statements of the respondents’ witnesses, in response, will necessarily be more lengthy. They will wish, in the interests of justice, to be allowed to respond to all the various specific matters set out in the witness statement, even if they consider them to be irrelevant and/or of marginal relevance. Indeed, I would be hopeful that some of the respondents’ present witnesses may not require to make witness statements and to be called to give evidence if the claimant’s witness statements is properly re-drafted on foot of my decision – with consequential saving of time and expense. I am further satisfied, having regard to the authorities and guidance referred to previously, that it is appropriate for me to seek to put an appropriate new word-limit on the claimant’s witness statement. I consider it is proportionate to do so and will have real advantages in terms of economy; and to do so is in accordance with the terms of the overriding objective and in the interest of proper modern day case-management, as referred to in Digby. I do not think, in this particular case, in light of the above authorities, it 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 previously ordered by the tribunal (see HSBC Asia Holdings). A further criticism by the respondents’ representative, which I consider has merit, is that the claimant in her witness statement has referred to matters, which it is not disputed are of relevance, but has engaged in repetition, for no good purpose other than that of emphasis. A striking example of such repetition, thought by no means the only example, is to be found in Paragraph 58 of the claimant’s witness statement with her reference to ‘ … to recap … ’. (See also Paragraph 18 which repeats, in essence, issues which were clearly set out in previous paragraphs; and Paragraph 41 – ‘as previously mentioned). There are numerous examples in the claimant’s witness statement, where she appears to ‘forget’ she is meant to be a witness of fact; but has clearly involved herself in the interpretation of documentary evidence, giving opinions as to the evidence and, in essence, involving herself in legal arguments/submissions. The claimant is represented by an experienced representative, who should be allowed to make the necessary submissions. It is not the function of the claimant in her witness statement to make such submissions. During the course of submissions I detected that some matters may have been included in the claimant’s witness statement arising out of the claimant’s specific insistence that they were included. As I pointed out, during the course of the hearing, in these days of strict case-management, parties cannot dictate to their representatives what is contained within the witness statement. In my judgment, representatives cannot be criticised where, in the proper exercise of their judgment and having regard to the terms of the overriding objective, they have not included matters which they consider should not be included in the witness statement, regardless of the views expressed by a party. I accept that all of this can be a difficult exercise. Indeed, as set out in the tribunal’s original case-management directions/orders in relation to the preparation and exchange of witness statements in this matter, the relevant connection between the issues identified in the statement of issues and the subsequent witness statements is clearly addressed. As I pointed out to both representatives, when one considers the statement of issues which was lodged with the Office of the Tribunals and, in particular, the main factual issues referred to therein, the level of detail which is set out in the claimant’s witness statement does not appear to have been properly and sufficiently reflected by the representatives when setting out the main factual issues to be determined by the tribunal. There are numerous paragraphs in the claimant’s witness statement, which it is not appropriate, for the reasons which I have set out above, to specify but which were fully discussed during the course of this hearing, which, in my judgment, are far too detailed and/or verbose for the purposes of addressing the issues to be determined by the tribunal. Whilst I accept that issues, for example, relating to the alleged following of the claimant in her car may involve, in particular, issues of credibility, I have little doubt that what has been set out could be shortened to a considerable degree, without losing sight of the issues which the claimant is seeking to put before the tribunal in her evidence. In particular, during the course of the claimant’s witness statement, I am satisfied that she has either repeated what has been previously stated or, has sought to give opinion as to the evidence and/or make submissions or comment/interpret documentary or other evidenced and/or repeated merely for emphasis/effect, evidence properly provided by her elsewhere in the witness statement, and that in these circumstances, it is appropriate to impose a new word-limit and not to leave it to the tribunal at the substantive hearing (see HSBC Asia Holdings).

3.4 In imposing a new word-limit, I remind the claimant and her representative, it is not for the claimant or her representative to case-manage her claim but it is for the tribunal. Both she and her representative are required to not only assist the tribunal to further the terms of 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, rather than to ‘red pen’ paragraphs as parts thereof of the witness statement, not least given that the claimant has the assistance of an experienced legal representative. I also accept that, unlike the tribunal who will hear the substantive case, I am inevitably less well informed about all the details of the claim (see Beazer Homes). I accept that to impose any extension of the previous word-limit cannot be arbitrary and must not become the subject of a ‘bidding war/word competition’. I have also taken into account the fact that this unfair constructive dismissal also has additional whistle blowing elements, which undoubtedly will lengthen the hearing but also will raise potential additional complex issues to be determined by the tribunal. However, I do not accept, even acknowledging the additional complications, as referred to above, that the word-limit, now suggested by the claimant’s representative, namely 10,000 words, is appropriate in the circumstances. I accept that to impose any word-limit can never be an exact science. When the tribunal imposed, at the Case Management Discussion on 20 June 2013, a word-limit of 5,000 words, subject to further application by either party, it was applying a ‘standard’ word-limit imposed in most Discrimination Case Management Discussions. However, it is always recognised that each case depends on its own particular facts. In particular, it does not mean that, following every Discrimination Case Management Discussion, the word-limit of 5,000 words has to be used by any witness. Indeed, it would be expected that, in many cases, a witness statement would not require to use the full amount of the said word-limit. In these circumstances, I therefore reject the submission by the claimant’s representative that since the ‘average’ Discrimination Case is listed for one week with a word-limit of 5,000 words, and this particular case since is listed for 10 days, a word-limit of 10,000 words is somehow appropriate.

3.5 In the circumstances, I have come to the conclusion that the claimant’s witness statement must not exceed 8,250 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). In addition, arising out of the claimant’s re-drafted witness statement, the respondents’ representatives will require further time to finalise the respondents’ witness statements in response to the claimant’s witness statements. (See later.)

3.6 In conclusion, it is necessary for me to emphasise that when the tribunal imposes, as part of its case-management role, a word-limit the parties and their representatives must comply with it. It is not some sort of target which can be ignored with impunity. To do so can and will have consequences, in the absence of a proper application to increase for good reason the word-limit originally ordered by the tribunal. Any such application must have regard to the guidance set out in the legal authorities referred to previously.

Further, as stated previously, the fact a witness statement has not breached the word-limit does not mean there will not be consequences, where it includes matters which are inadmissible/irrelevant and not appropriate for a witness statement and results in additional costs and expenses and/or lengthens the substantive hearing.

4.1 As indicated previously, I also had concerns in relation to the witness statements, on behalf of the claimant, made by PR and IM, which were in excess of the 5,000 word-limit originally imposed by the tribunal; albeit by only a relatively small margin. Despite this, there had not been, prior to this hearing, any application by the claimant’s representative for any Order by the Tribunal extending the said word-limit, although I accept the said witness statements had not exceeded the original word-limit by much. As I indicated, during the course of this hearing, I am of the opinion that these witness statements are far longer than is required and indeed repeat many of the matters addressed by me earlier in this decision, in relation to the claimant’s witness statement, including giving opinions as to the evidence, statements as whether a cause of action or an element is made out, repeating the contents of documentary evidence and/or interpreting the documentary evidence referred to and repeating matters which are set out as statements of fact by either the claimant or the other witnesses. In the circumstances, I think that the witness statements of PR and IM should be re-drafted to take account of what I have set out above. In the circumstances, each said witness statement must not exceed, and I so order, 4,000 words. In doing so, I would be hopeful that the said witness statements could be completed well short of this limit. However, I took the view that, having regard to Beazer Homes, that it would be wrong to impose, at this hearing, a less generous/flexible word-limit in the circumstances.

5.1 Arising out of this decision and having regard to the amended timetable for the preparation and exchange of the respondents’ witness statements, I have decided to make the following amended orders, in relation to a new timetable for the preparation and exchange of the claimant’s witness statements and the respondents’ witness statements. In doing so, I am aware that the respondents have already carried out considerable work in relation to the preparation of the respondents’ witness statements and that, other than these matters, both representatives are satisfied there are no other outstanding issues and that the matter is ready to proceed on 18 – 29 November 2013. However, without prejudice to the foregoing, if either party wishes to object and/or make any application to the tribunal in relation to these further case-management directions/orders in relation to the said witness statements, then they must do so promptly and in accordance with the relevant Rules of Procedure and having regard to the dates for hearing of this matter. I therefore order any amended witness statements by the claimant and her witnesses and her witnesses must be exchanged with the respondents’ representative by 24 October 2013 and the respondents’ witness statements must be exchanged with the claimant’s representative by 7 November 2013.

5.2 I understand that the claimant’s representative has served on the respondents’ representative a medical report from Dr Loughrey and has written to the respondents’ representative to ascertain whether the report can be admitted without formal proof. Clearly, if it is not to be so admitted, then Dr Loughrey will require to be called as a witness. I understand from the respondents’ representative that, at this stage, it is not anticipated that the respondents will be calling any medical evidence. It was agreed, and I so ordered, that the respondents’ representative would confirm to the claimant’s representative, in writing, by 11 October 2013, whether the said report can be admitted without formal proof. Both representatives agreed that, if the report could not be so admitted, then they would make arrangements to enable Dr Loughrey to be called to give evidence at the tribunal at an agreed date and time during the course of the hearing.

Chairman:

Date and place of hearing: 3 October 2013, Belfast

Date decision recorded in register and issued to parties: