Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1804/17

 

 

 

CLAIMANT: Michelle Connolly

 

 

 

RESPONDENT: Caterpillar (NI) Ltd

 

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

 

(1) It is ordered that, following a review of the claimant's witness statement by the claimant and/or her representative and taking into account the matters set out in this decision, the said witness statement of the claimant must be re-drafted/amended, so the maximum number of words does not exceed 7,500 words.

 

(2) Further case-management directions/orders were made by the tribunal, as set out in more detail in Paragraph 4. of this decision for the exchange of the witness statements of the parties, in light of this decision.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Drennan QC

Appearances:

The claimant was represented by Mr R Cushley, Barrister-at-Law, instructed by John McKee, Solicitors.

The respondent was represented by Ms M McGinley, Solicitor, of Engineering Employers' Federation Northern Ireland

 

Reasons

 

1.1 The claimant presented a claim to the tribunal on 10 April 2017, in which she made a claim of unfair dismissal and age discrimination. The respondent presented a response to the claimant's said claims on 12 June 2017, in which the respondent denied liability for the said claims and each of them.

 

In accordance with the tribunal's case-management procedures, a Case Management Discussion was held on 15 August 2017, as set out in the Record of Proceedings dated 17 August 2017. The claimant, at that hearing, appeared in person and was not represented, but was assisted by a Mr R Cafolla. As set out in the Record of Proceedings, dated 17 August 2017, the tribunal made various case-management directions/orders, including, in particular, for the purposes of this pre-hearing review, the claimant's witness statement may not exceed 5,000 words unless otherwise directed by the tribunal. It was agreed that the substantive hearing would be held in this matter from 4 - 8 December 2017 and both the claimant's representative and the respondent's representative confirmed, at this hearing, they were anxious that these dates should be maintained, if possible.

 

Subsequent to the Case Management Discussion on 15 August 2017, the respondent's representative made an application for a pre-hearing review, by way of a deposit hearing, in relation to the claimant's claim for age discrimination. In the event, the claimant withdrew her claim of age discrimination and a decision was issued to the parties on 2 October 2017, dismissing the said claim of age discrimination, following withdrawal. Therefore, the said substantive hearing, as referred to above, from 4 - 8 December 2017, relates to the claimant's remaining claim of unfair dismissal.

 

1.2 The claimant's claim form was a very lengthy and detailed document and at the Case Management Discussion on 15 August 2017, I had indicated to the claimant, who at that time was a litigant-in-person, that not all the matters which were set out in the claimant's claim form appeared to me to be relevant to the issues and would require further consideration at the time of the drafting of the claimant's witness statement, even allowing for the fact in a discrimination claim, in particular, matters of background may, insofar as necessary, require to be included in a witness statement.

 

1.3 At a further Case Management Discussion on 27 October 2017, as set out in the Record of Proceedings dated 30 October 2017, I considered the application of the claimant's representative for an extension of the word-limit in relation to the claimant's witness statement. As set out in the Record of Proceedings, dated 30 October 2017, I noted that, at that time, the claimant's witness statement, in the latest draft at that time, had been reduced to 17,000 words from 25,000 words but that the claimant's representative was hopeful that it could be further amended to in or about 10,000 words. I therefore allowed the claimant's representative further time to consider whether the claimant's witness statement could be further reduced before service of the claimant's witness statement on the respondent's representative. At that time, the respondent's representative indicated that the respondent would not object to an extension of the word-limit to in or about 7,500 words. In light of the foregoing, it was agreed, as set out in the said record:-

 

"Without prejudice to the foregoing, the respondent's representative will have an opportunity to consider its position and, in particular, whether it consents to any extension to the claimant's word-limit and, if so, by how much, if at all;"

 

following the exchange of the claimant's witness statement by 5.00 pm on 3 November 2017. It was further agreed that, following the said exchange of the claimant's witness statement, the respondent's representative was required to clarify its position to the claimant's representative, with copy to the Office of the Tribunals, by no later 12.00 pm on 7 November 2017; and, if necessary, if it was appropriate, the tribunal would arrange a pre-hearing review to determine, whether on application of the claimant, the word-limit of the claimant's witness statement should be extended and, if so, by how much. By e-mail dated 7 November 2017, the respondent's representative confirmed to the tribunal that it objected to the size of the claimant's witness statement and that a pre-hearing review would be required to determine the application of the claimant to extend the word-limit of the claimant's witness statement. As a consequence of the foregoing, this pre-hearing review was arranged.

 

1.4 The claimant's witness statement now consists of 10,025 words. The respondent's representative believes that a witness statement can, and should be, reduced further and it appeared to the respondent's representative that a word-limit of 5,000 words was appropriate. It will be necessary, later in this decision, to refer in more detail to the various issues addressed by the representatives, during the course of the pre-hearing review, in relation to the length of the claimant's witness statement. Although the claimant, as set out above, has now withdrawn her claim of age discrimination, I am satisfied that the withdrawal of the said claim of age discrimination has made little or no difference to the length of the claimant's said witness statement, as many of the factual matters alleged, prior to withdrawal, of the claimant's claim of age discrimination are also the subject-matter of the claimant's claim of unfair dismissal.

 

1.5 In view of the objection by the respondent's representative to the claimant's application for an extension of the word-limit for the said witness statement of the claimant, it was necessary for the application to be determined at a pre-hearing review, having regard to Rule 17(2) of the Industrial Tribunals Rules of Procedure and the normal practice of this tribunal in relation to such an application. Both representatives properly agreed to short notice of the hearing for this pre-hearing review and the relevant Notice of Hearing was issued to the parties on 8 November 2017.

 

2. Relevant law

 

2.1 In a series of decisions, including Carol Crockett v Police Federation of Northern Ireland and Another [Case Reference Nos: 5577/13 and 1279/13 - NIIT 9 October 2013], Michelle Elliott v Chief Constable of the Police Service of Northern Ireland [Case Reference Nos: 872/15, 2273/15 - 24 February 2016 and Kelly v K-Tec Automaton Ltd [Case Reference Nos: 36/15 FET, 1336/15, 5/16 FET, 227/16 - 12 May 2016], I have reviewed many of the relevant authorities and the legal principles which must guide a tribunal in relation to such an application, which had been identified in various legal decisions in this jurisdiction and in Great Britain. Given both the claimant's and the respondent's representatives accepted the principles set out in those decisions, I do not intend to repeat, in extenso, what is set out in those decisions; but I have taken them into account in reaching my decision, as set out below.

 

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

 

I am also very conscious of the guidance of Mummery LJ in Beazer Homes Ltd v Stroude [2005] EWCA Civ 265, when he stated at Paragraph 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 preliminary hearing. The judge at a preliminary hearing on admissibility will usually be less well informed about the case. Preliminary hearings can also cause unnecessary costs and delays."

 

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

 

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

 

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

 

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

 

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

 

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

 

... ."

 

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

 

2.2 In considering an overall word-limit in the present proceedings, I acknowledge as I had done previously, as referred to above, in a discrimination case, background circumstances and/or context may frequently require to be included in the witness statement (see Anya v University of Oxford [2001] IRLR 377). However, in the present proceedings, this claim is no longer a discrimination claim but an unfair dismissal claim; albeit the factual subject-matter of both claims, if they had been proceeded with, would have overlapped. However, given this is an unfair dismissal claim and the issues which the tribunal will have to determine, on foot of an unfair dismissal claim, issues relating to background and/or contextual matters will be considerably reduced, if not eliminated.

 

In this context, it has to be remembered the narrow well-established dicta, as set out in the following cases.

 

In Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, when deciding whether the employer acted reasonably in dismissing the employee, it was held:-

 

" It is not for the ET to conduct a primary fact-finding exercise. It is there to review the employer's decision. Still less is the ET there to conduct an investigation into the whole of the employee's employment history. ... ."

[Paragraph 33 of the judgment]

 

Further, in Turner v East Midlands Trains [2012] EWCA Civ 1470, Sir Stephen Sedley at Paragraph 71 of his judgment emphasised:-

 

" For a good many years it has been a source of distress to unfair dismissal claimants that, with rare exceptions, they cannot recanvass the merits of their case before an employment tribunal. In spite of the requirement in Section 98(4)(b) that the fairness of a dismissal is to be determined in accordance with equity and the substantial merits of the case, a tribunal which was once regarded as an industrial jury is today a forum of review, albeit not bound to the Wednesbury mast. Other claims - for example discrimination claims - based on the same or related facts, do attract a full merits hearing. But in relation to unfair dismissal the law is unequivocally what Lord Justice Elias has set out in paragraphs 16 to 22 above."

 

In those paragraphs of his judgment, referred to by Sir Stephen Sedley, Lord Justice Elias had referred, with approval, to the summary of the relevant principles contained in the judgment of Aikens LJ in the case of Orr v Milton Keynes Council [2011] ICR 704 (see further the dicta of the Court of Appeal in Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457 and A v B [2003] IRLR 405 and Crawford v Suffolk Mental Health NHS Partnership Trust [2012] IRLR 402; see also the well-known principles set out in Iceland Foods Ltd v Jones [1983] ICR 17, London Ambulance Trust v Small [2009] IRLR 563 in relation to the test of 'band of reasonable responses'.

 

2.3 In Disclosure by Malek and Matthews (5 ^th Edition) in relation to the form and contents of witness statements, it is helpfully suggested at Paragraph 21.23:-

 

"In general the witness statement will stand as part or all of the evidence-in-chief of the witness in question. Hence it should resemble that oral evidence as far as possible. Rather than being a legalistic document, the witness statement should be in the witness' own words. The witness statement must indicate which of the statements in it are made from the witness' own knowledge and which are matters of information and belief and the source for any matters of information or belief. A witness statement for trial should be no longer than is essential to convey the first-hand evidence of the witness. There should not be recitation of the content of documents or commentary on the issues in the claim. The witness statement should not include commentary on the trial bundle or other matters which may arise during the trial or may have arisen during the proceedings.

 

... Inadmissible and irrelevant matters should not be included in a witness statement. The court has power to strike out irrelevant matters collateral to the issues to be tried from witness statements, direct the witness statement to be re-submitted, to make appropriate costs sanctions."

 

2.4 Whilst not applicable in Northern Ireland, the White Book on the Civil Procedure Rules of Great Britain, where the use of witness statements is much more common than in Northern Ireland, states at Paragraph 32.4.21:-

 

"The party's awareness of the court's wide power 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 in irrelevant or would unnecessarily lengthen the proceedings, or is disproportionate (as well as, of course, on the ground that the 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 the witness statement have no 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 irrelevant 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, July 22 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."

 

2.5 Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 sets out the overriding objective which an Employment Judge shall seek to give effective to when exercising any power given under, or interpreting these Regulations and Rules. In Digby v East Cambridgeshire District Council [2007] IRLR 585, the Employment Appeal Tribunal held that a tribunal, in the interests of modern day case-management, has a discretion to exclude relevant evidence which is, for example, unnecessarily, repetitive or only of marginal importance.

 

Further, in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, Morgan LCJ approved the judgment of Girvan LJ in Peifer v Castlederg School and Western Education & Library Board and Another [2008] NICA 49 when he stated, inter alia, after reference to the terms of the overriding objective:-

 

" ... Tribunals must ensure proper focus on the relevant issues and ensure that 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 the litigation before it robustly but fairly. .. ."

 

2.6 In Harvey on Industrial Relations and Employment Law, Volume 4, P1 Practice and Procedure at Paragraph 8.77, much of the case law referred to above is helpfully referred to.

 

In particular, in Paragraph 8.77(viii) it is stated:-

 

" ... However, caution should not be treated as an excuse for pusillanimity, and if a judge is satisfied on the facts of a particular case that the evidence will not be of material assistance in deciding the issues and that its admission will cause inconvenience, expense, delay or oppression, so that justice would be best served by its exclusion, he or she should be prepared to rule accordingly."

 

In the case of Kalu v Brighton & Sussex University Hospitals NHS Trust & Others [2014] UKEAT/0609/12, Langstaff J, in a discrimination case, where the issue of exclusion of evidence arose stated:-

 

" 35. We therefore start by accepting that the excluded evidence might have been of some relevance. A tribunal should pause to think long and hard before it excludes any evidence which is of some relevance. However, the rule that evidence may not be admitted at all unless it is relevant does not have the corollary that if it is relevant it may not be excluded. In Noorani v Merseyside Tec Ltd [1999] IRLR 184, CA the Court of Appeal regarded it as a proper exercise of discretion by a tribunal to refuse to issue witnesses with witness summons which went to issues which were collateral and subsidiary, taking into account the likelihood that those subsidiary issues would affect the outcome. At paragraph 35, Henry LJ, with whom Thorpe and Beldam LJJ agreed, observed:

 

'Such proactive judicial case management in the law courts becomes more and more important now that it is generally recognised that unless the Judge takes on such a role, proceedings become over long and over costly, and efforts must be made to prevent trials being disproportionate to the issue at stake, and thus doing justice neither to the parties, to the case at point or to other litigants'.

 

36. The position in relation to Employment Tribunals is a fortiori since they are intended to be relatively informal and inexpensive.

 

The Court emphasised that the decision was discretionary. It is of the nature of discretions that they are entrusted to the Court at first instance. Appellate Courts must recognise that different courts may disagree about whether a discretion should be exercised or not without either being wrong, far less having made a mistake in law. A decision to exercise a discretion can be set aside only if the conclusion reached is outside the generous ambit within which a reasonable disagreement is possible. ... .."

 

In Kalu, Langstaff J dealt with approval the guidance set out in HSBC Asia Holdings BV and Another v Gillespie by Underhill J, referred to previously.

 

2.7 It is now well recognised by the guidance set out in the above legal authorities, witness statements must set out relevant facts, but omit argument, supposition, hypothesis and repetition. In particular, a witness cannot dictate what is contained in the witness statement by stating, in terms, ' this is my story I will say it as I like'. The witness is subject to the case-management directions/orders of the tribunal, the relevant Rules of Procedure, including the overriding objective and must confine herself/himself to such statements of facts. In the Farepak litigation, Peter Smith J stated:-

 

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

 

In ED & F Man Liquid Products Ltd v Patel [2002] 1706 EWHC (QB) HH Judge Dean:-

 

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

 

In JD Wetherspoon PLc v Harris & Others [2013] EWHC 1088, the High Court granted an application to strike-out the majority of a witness statement on the grounds that there was an abuse, as it contained recitations of facts based on documents (rather than direct knowledge), commentary on those documents, argument, submissions and expressions of opinion.

 

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 of costs entailed by submitting a statement containing such evidence.

 

3.1 In relation to my decision, as set out below, it is without prejudice to any decision taken by the tribunal, at the substantive hearing, including any issues of costs arising out of the contents of the witness statements of either party, as placed in evidence before that tribunal, including, if appropriate, where it is decided that the contents of any such witness statements have unreasonably impacted upon the length of the hearing. As seen in Beazer and HSBC Asia Holdings, any decision made at a pre-hearing review, in relation to the issues, the subject-matter of this pre-hearing review, inevitably, have to be limited given the nature and purpose of relevant case-management. The tribunal, at the substantive hearing, will have much greater knowledge and understanding of the whole picture. However this has not prevented me, for the reasons set out in the following sub-paragraphs, amending the previous case-management order of the tribunal restricting the word-limit of witness statements to 5,000 words.

 

3.2 In light of the principles and guidance set out in the legal authorities referred to in the previous paragraph of this decision, I have carefully considered the terms of the claimant's said witness statement, in light of the submissions of the representatives and the further discussion at this hearing. Taking into account the agreed statement of issues, dated 18 October 2017, and that this is now a claim of unfair dismissal and not also age discrimination, and after reading the document as a whole, I have concluded that the witness statement contains considerable detailed background material, which is not necessary for a claim of unfair dismissal and, in the circumstances, could be appropriately reduced, following further review. I am also satisfied the witness statement, in particular, wrongly contains commentary, argument, tendentious comment, hypothesis, repetition, and evidence which, at best, can only be of marginal importance to the issues to be determined, or collateral to such issues, as identified in the said statement of issues, and should be able to be appropriately omitted from the said statement, following further review. I also have taken into account, when considering any reduction of the word-limit, as appropriate and necessary, that there is some reference in the said witness statement about issues in relation to forgery, which, if relevant, are surprisingly not expressly referred to in the statement of issues. In such circumstances, this raises the issue, in particular, marginal importance to issues/collateral to such issues and should be further considered upon review. I have also taken into account that the claimant's representative confirmed, at this pre-hearing review, that the tribunal will not have to re-hear/determine the various internal grievances, This should therefore limit the amount of detail that is required to be contained in the witness statement about same, for the purposes of these proceedings, applying the principles and guidance referred to above. However, since I am not determining, at this pre-hearing review, any of the issues which will require to be determined by the tribunal in relation to the claimant's claim of unfair dismissal, I am therefore reluctant, in giving my reasons for this decision, to specify specific wording/sections etc to be found in the said witness statement, so as not to give rise to any issue of prejudice to either party. In light of the foregoing, I have come to the conclusion that there requires, in the circumstances, to be a review, by the claimant's representatives, of the claimant's witness statement and in doing so, to take account of the above matters, as referred to in this paragraph. I have concluded, following this review, the claimant's witness statement should be able to be re-drafted/amended to reflect same, and the present word-count of the claimant's witness statement can be properly and appropriately reduced from its present word-count of approximately 10,000 words. I have further decided, following such a review, the word-limit for the claimant's witness statement must not exceed 7,500 words. In setting this limit, I have taken into account what I stated in the case of Briercliffe, as referred to previously. I also have had regard to the fact that the respondent's representative had previously recognised there could require to be an extension by the claimant to exceed the original word-limit of 5,000 words; albeit, by the time of this hearing, she felt this was no longer necessary. I fully appreciate to set any such limit is not and cannot be an exact science and I have therefore, in imposing this new limit, sought to be as generous as possible, in the exercise of my discretion.

 

4. The representatives informed me that they are anxious for the dates for hearing to be maintained if possible. I note also that the respondent's representatives have already properly engaged in drafting their witness statements, subject to and pending the outcome of this pre-hearing review.

 

I therefore order that the claimant's re-drafted/amended witness statement, to reflect the new word-limit, as set out above, must be exchanged with the respondent's representatives by no later than 5.00 pm on 22 November 2017 and the respondent's witness statements must be exchanged with the claimant's representatives by no later than 5.00 pm on 28 November 2017.

 

These are Orders of the Tribunal and must be complied with. If any further order is required to be made to the Office of the Tribunals, including any application for an extension of time, then any such application must be made promptly and in accordance with the relevant Rules of Procedure and having regard to the dates for hearing of this matter.

 

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 10 November 2017, Belfast

 

 

Date decision recorded in register and issued to parties: