Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2489/16

 

 

 

CLAIMANT:                          Áine Mary Magorrian

 

 

RESPONDENT:                  Saliis Limited

 

 

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the respondent’s application to strike out
at Pre-Hearing Review paragraphs 4-15 inclusive in the claimant’s witness statement is refused.

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge Bell  

Appearances:

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

The respondent was represented by Mr P Bloch of EEF Northern Ireland.

 

1.         The claimant presented a claim to the tribunal on 14 November 2016 in which she raised complaints of sex discrimination and unfair dismissal occurring on 24 October 2016 arising out of her being made redundant during maternity leave.

            The respondent presented a response on 11 December 2016 in which it resisted the claimant’s claims. 

 

2.         Arising out of an application on behalf of the claimant on 17 May 2017 to extend the word limit for the claimant’s witness statement, a Case Management Discussion took place on 30 May 2016 at which the respondent sought for part of the claimant’s witness statement (relating to her treatment in 2015 on return to work following a first period of maternity leave) to be struck out and accordingly this Pre-Hearing Review was directed to take place to deal with “whether paragraphs 4-15 in the claimant’s statement should be struck out”.

 

3.         At the outset of the hearing the parties confirmed that the list entitled “draft list of legal and main factual issues” presented by the respondent is now their agreed list of legal and main factual issues.

 

REVELANT LAW

 

4.         Rule 17(2) of the Industrial Tribunals Rules of Procedure 2005 provides that any determination of a person’s civil rights of obligations shall not be dealt with in a Case Management Discussion.

 

5.         It has been long recognised (in a series of decisions of this tribunal 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]) that a chairman has the necessary power, in his/her discretion to determine at 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, that this discretion should be exercised with some caution.      

 

6.         Mummery LJ in Beazer Homes Ltd v Stroud [2005] EWCA Civ 265 stated:-

 

            “10      In general, disputes about the admissibility of evidence in simple 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 cause unnecessary costs and delay.

 

                        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 ...”.

 

7.         Whilst not applicable in Northern Ireland the White Book on the Civil Procedure Rules in Great Britain, where the use of witness statements is much more common than in Northern Ireland, states 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 22^nd 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.”

           

 8.        Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 sets out the overriding objective which a tribunal or chairman shall seek to give effect to when exercising any power given under, or interpreting, these Regulations and Rules.

 

9.         The EAT in Digby v East Cambridgeshire District Council [2007] IRLR 585  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.

 

10.       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:-

 

“ … 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.  … .”.

 

11.      It is clear that proactive case management including proper identification of issues are important to prevent cases becoming over long over costly and disproportionate to the issues at stake.

 

12.      The question of whether evidence is relevant is not however always clear cut, particularly in discrimination cases where a wide array of evidence may be sought to be relied upon to support an inference of discrimination leading to a risk of an excess of evidence, though not completely irrelevant, of marginal importance.

 

13.      In HSBC Asia Holdings  BV & Anor v Gillespie [2011] IRLR 209 the EAT held that the Employment Judge had erred in not exercising his discretion to exclude evidence as irrelevant background evidence of a culture of discrimination many years before the date of the acts of discrimination alleged by the claimant.  Underhill J set out therein a summary of principles as to admissibility and the power to exclude relevant evidence which Harvey on Industrial Relations and Employment Law/ Division PI Practice and Procedures/1 Employment Tribunals/Y Procedure at the hearing/ (7) the evidence/ (b) admissibility of evidence at [877] sets out the main points as including:-

 

‘(vi)     The fact that evidence is inadmissible because it is insufficiently relevant does not 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 (para 13(7)).  Generally it is preferable to leave issues of admissibility to be dealt with at the substantive hearing rather than at a preliminary hearing, as the judge or tribunal at the substantive hearing will usually be better placed to make the necessary assessment: see Beazer Homes Ltd v Stroude [2005] EWCA Civ 265 at para 9, per Mummery LJ.  However there will be cases where there are real advantages in terms of economy in excluding irrelevant evidence at a preliminary hearing, for example, where it is central to an interlocutory issue relating to the making of witness orders or disclosure (para 13(8)).

 

(vii)     Discrimination cases constitute a particular class of case in which it may be appropriate to decide questions of admissibility at a preliminary stage.  Such cases are notorious for the tendency of claimants to adduce evidence of very many incidents of alleged ill-treatment often extending over long periods of time, which can lead to very long hearings, impose an enormous burden on the parties and the tribunal and carry the risk of the essential issues being obscured in a morass of detail (para 13(9)).  In Chattopadyay v Headmaster of Holloway School [1981] IRLR 487 at 491, Browne-Wilkinson J emphasised that, in order that inquiries under the discrimination legislation do not become too wide-ranging over matters only indirectly relevant to the main issue, there is a very heavy burden on legal advisers and the [EHRC] to ensure that such matters are not introduced into a case 'except where they are satisfied that there is a real probability that they will affect the outcome'.  These observations apply whether the indirect incidents occur before or (as was the case in Chattopadyay) subsequent to the acts complained of.

 

(viii)    Whether a pre-hearing ruling on admissibility should be made in a particular case will depend on the circumstances of the case
(para 13(10)).  Caution is necessary when determining whether to exclude evidence at a preliminary stage because it will not always be possible to make a reliable judgment on the issue of relevance at that stage and, in discrimination cases, because of the need to bear in mind the generally fact-sensitive nature of such cases.  Prior incidents which are not complained of in their own right (typically because they are out of time) may still be important as shedding light on whether the acts complained of occurred or constituted discrimination (para 13(10); see, in particular, Anya v University of Oxford [2001] IRLR 377, [2001] ICR 847).  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 will be best served by its exclusion, he or she should be prepared to rule accordingly.’

 

ISSUES

 

14.       The issue to be determined by the tribunal was:-

 

·         Whether to strike out paragraphs 4-15 of the claimant’s witness statement?

 

That is, 

 

·         Whether it is appropriate to exercise my discretion to make a ruling on admissibility of evidence at this stage (and not by the tribunal conducting the substantive hearing)?

 

If so,

 

·         Whether the evidence in dispute is admissible?

 

And,

 

·         Whether the respondent’s application to strike out at this stage the evidence in dispute should be granted or refused?

 

SUBMISSIONS

 

            In summary:-

 

15.       It was submitted on behalf of the respondent that:-

 

·         As conceded in paragraph 5 of the record of proceedings of the Case Management Discussion on Thursday 8 May 2017, the allegations contained in the claimant’s witness statement at paragraphs 4-15 (despite the claimant being professionally represented) are not in the claim form and were not pleaded as part of the claim, also they are not in the agreed statement of legal or factual issues, that the claimant in the claim form clearly identified the occurrence of discrimination complained of as being on 24 October 2016, the allegations are a freestanding issue in respect of which no complaint was made, have no probative value on whether the claimant was discriminated against on being made redundant in her second period of maternity leave and evidence ought to be excluded as oppressive, the intention of it being to besmirch the reputation of the respondent.

 

·         As per Harvey paragraph [877] (vii) discrimination cases constitute a particular class of case in which it may be appropriate to decide questions of admissibility at preliminary stage with consequent risks otherwise of long hearings, an enormous burden on parties and issues obscured in a morass of detail, also that there is a very heavy burden on legal advisers to ensure matters are not introduced into a case “except where they are satisfied that there is a real probability that they will affect the outcome” as per Chattopadyay.

 

·         As per Harvey at paragraph [877] (viii) “... 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 will be best served by its exclusion, he or she should be prepared to rule accordingly.”

 

16.       It was submitted on behalf of the claimant that:-

 

·         The claimant was a litigant in person at the time of completing her claim form and only at that stage seeking general advice from the Equality Commission, and indeed had specified under “Details...” that “this is a brief overview of my case”.

 

·         The witness statements served by the respondent deal with the matters and the respondent has available the tools of cross-examining the claimant and calling rebuttal evidence and so no oppression or prejudice is caused to the respondent.

 

·         The evidence is relatively short and there will be no advantage of economy.  The evidence is over a short period of time and (having been considered by the claimant’s legal advisors and determined appropriate to include) has very clear probative value regarding the claimant’s redundancy in her second period of maternity leave (in 2016) as it relates to how the claimant was treated on her return from her first period of maternity leave (in 2015), these periods not being a great distance apart and so differs from Chattopadyay.

 

·         The law in Northern Ireland ties the hands of the tribunal even further under Court of Appeal authorities to the effect that tribunals should not even be engaging in this kind of hearing.

 

·         Mr Bloch’s submissions based on paragraph Harvey [877] (vii) are put in context by the preceding paragraph [877] (vi) and as per Beazer Homes Ltd it is generally preferable to leave issues of admissibility to be dealt with at the substantive hearing where the Judge or tribunal will usually be better placed to make the necessary assessment save in cases where there are real advantages in terms of economy in excluding irrelevant evidence at a preliminary hearing.

 

·         That it is very much appropriate under the principle in Anya for such evidence to be called and this case is very much different from those identified in authorities as being appropriate to prevent the tribunal at substantive hearing from hearing the evidence in dispute.

 

17.      On consideration of the above, whilst the disputed evidence is not contained in the claimant’s claim form, I accept that the claimant was a personal litigant at the time, furthermore that she indicated in her details of the claim that the detail given was a brief outline of her claim.  I accept that the disputed evidence is relatively short and not a great distance in time from the date of the act complained of.  I accept this is not a case where there are real advantages in terms of economy in excluding relevant evidence at a preliminary hearing and that given the tools of cross examination and calling rebuttal evidence available to the respondent, that oppression or prejudice is not caused to the respondent. 

 

CONCLUSION

 

18.      I am not satisfied that the disputed evidence will not be of material assistance in deciding the issues or that its submission will cause inconvenience, expense, delay or oppression so that justice will be best served by its exclusion and accordingly I am not satisfied that it is appropriate that I should exercise my discretion to make a ruling on admissibility of evidence at this stage.  The respondent’s application is accordingly refused.

 

 

 

Employment Judge:

 

 

Date and place of hearing:        6 June 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: