EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Nimmo Smith Lady Dorrian Sir David Edward, Q.C.	[2009] CSIH 70A XA46/08 OPINION OF THE COURT delivered by LORD NIMMO SMITH in appeal under section 37(1) of the Employment Tribunals Act 1996 by FIONA DAVIDSON Appellant; against DALLAS McMILLAN Respondents: _______

Act: Napier, Q.C.; Thompsons

Alt: Cunningham; MacRoberts LLP

4 August 2008

Introduction

[1] The appellant is a freelance journalist with extensive experience of reporting proceedings in employment tribunals. An employment tribunal has power, in certain proceedings, to make a restricted reporting order ("RRO"). The issues which arise in this appeal are: (1) whether a journalist, who is not a party to the proceedings, may apply for revocation of a full RRO; and (2) if so, the point at which the jurisdiction of the employment tribunal to consider such an application comes to an end.

The statutory framework

[2] Before 1993 industrial tribunals (as they were then) had no power to make RROs. Sections 40 and 41 of the Trade Union Reform and Employment Rights Act 1993 introduced provisions into paragraph 1 of Schedule 9 to the Employment Protection (Consolidation) Act 1978 allowing for the making of regulations. This power was exercised, in relation to Scotland, by the Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993 (S.I. 1993, No. 2688). Schedule 1 thereto set out rules of procedure ("the 1993 Rules"). Rule 14 thereof provided inter alia:

"(1) In any case which involves allegations of sexual misconduct the tribunal may at any time before promulgation of its decision in respect of an originating application, either on the application of a party made by notice to the Secretary or of its own motion, make a restricted reporting order.

(2) The tribunal shall not make a restricted reporting order unless it has given each party an opportunity to advance oral argument at a hearing, if they so wish. ..."

[3] The current primary legislation is provided by the Employment Tribunals Act 1996, which (as amended by the Employment Rights (Dispute Resolution) Act 1998) makes provision for the establishment of employment tribunals and for the making of employment tribunal procedure regulations. Section 11(1) provides that employment tribunal procedure regulations may include provision inter alia:

"[F]or cases involving allegations of sexual misconduct, enabling an employment tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal."

By Section 11(6) various definitions are provided. The expression "sexual misconduct" is defined as meaning:

"the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed."

The expression "restricted reporting order" is defined as meaning an order

"(a) made in exercise of a power conferred by regulations made by virtue of this section, and (b) prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain."

The expression "identifying matter", in relation to a person, is defined as meaning "any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation". Definitions are also provided of the expressions "written publication" and "relevant programme". Subsections (2) to (5) contain provisions making it an offence to publish any identifying matter or to include it in a relevant programme in contravention of an RRO, and specifying those persons who are to be guilty of that offence.

[4] The 1993 Rules were re-enacted, with amendments, in relation to Scotland, by the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 (S.I. 2001, No. 1170), Schedule 1 to which contained the Employment Tribunals Rules of Procedure (Scotland) ("the 2001 Rules"). Rule 15 conferred miscellaneous powers on employment tribunals, including "(1) Subject to the provisions of these rules, a tribunal may regulate its own procedure". Rule 16 contained provisions relating to RROs, including the following:

"(1) In any case which involves allegations of sexual misconduct the tribunal may at any time before promulgation of its decision in respect of an originating application, either on the application of a party made by notice to the Secretary or of its own motion, make a restricted reporting order. ...

(4) The tribunal shall not make a restricted reporting order unless it has given each party an opportunity to advance oral argument at a hearing, if they so wish.

(5) Where a tribunal makes a restricted reporting order - ... (b) the order shall remain in force until the promulgation of the decision of the tribunal on the originating application to which it relates unless revoked earlier; ...

(6) A tribunal may revoke a restricted reporting order at any time if it thinks fit. ..."

Rule 4(1) provided:

"A tribunal may at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with the proceedings as appear to the tribunal to be appropriate."

[5] The 2001 Rules were re-enacted, with amendments, in relation both to Scotland and to England and Wales, by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (S.I. 2004, No. 1861) with effect from 1 October 2004, Schedule 1 to which sets out the Employment Tribunals Rules of Procedure ("the 2004 Rules"). The 2004 Rules apply to the proceedings with which we are concerned. It should be noted that the 2004 Rules have been subject to more recent amendment. In place of the word "chairman" of a tribunal, the words "Employment Judge" have been substituted by the Tribunals, Courts and Enforcement Act 2007 (Transitional and Consequential Provisions) Order 2008 (S.I. 2008, No. 2683), as from 3 November 2008. The most recent amendments have been made by the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 (S.I. 2008, No. 3240) with effect from 6 April 2009 ("the 2008 Regulations"). During the course of this Opinion we shall discuss the provisions of the 2004 Rules in the form in which they were in force at the material time; but we shall mention one amendment made by the 2008 Regulations.

[6] In terms of regulation 3(1), the overriding objective of the 2004 Rules is to enable tribunals and chairmen to deal with cases justly. By regulation 3(3) a tribunal or chairman is to seek to give effect to the overriding objective when it or he exercises any power given to it or him by the regulations or the 2004 Rules, or interprets the regulations or any rule. Rule 10 provides inter alia:

"(1) Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing (see regulation 2 for the definition of 'hearing' [which includes the words 'a sitting of a chairman or a tribunal duly constituted for the purpose of receiving evidence, hearing addresses and witnesses or doing anything lawful to enable the chairman or tribunal to reach a decision on any question']).

(2) Examples of orders which may be made under paragraph (1) are orders - ...

(k) that any person who the chairman or tribunal considers may be liable for the remedy claimed should be made a respondent in the proceedings; ...

(n) varying or revoking other orders; ...

(r) that any person who the chairman or tribunal considers has an interest in the outcome of the proceedings may be joined as a party to the proceedings; ..."

Rule 11(1) provides:

"at any stage of the proceedings a party may apply for an order to be issued, varied or revoked or for a case management discussion or pre-hearing review to be held."

Rule 14(3) provides:

"The chairman or 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."

[7] Rule 25 provides inter alia:

"(1) A claimant may withdraw all or part of his claim at any time - this may be done either orally at a hearing or in writing in accordance with paragraph (2).

(2) To withdraw a claim or part of one in writing the claimant must inform the Employment Tribunal Office of the claim or the parts of it that are to be withdrawn. Where there is more than one respondent the notification must specify against which respondents the claim is being withdrawn.

(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.

(4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. ... If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed). ..."

By regulation 4(17) of the 2008 Regulations, and following criticism of the wording in Khan v Heywood & Middleton Primary Care Trust [2006] ICR 543 (EAT); [2007] ICR 24 (CA), the last eighteen words of paragraph (4) ("those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed.)") have been deleted, with effect from 6 April 2009, and in their place the following words have been inserted:

", the claimant may not commence a further claim against the respondent for the same, or substantially the same, cause of action (unless the decision to dismiss is successfully reviewed or appealed).".

[9] Provisions relating to RROs are contained in rule 50, which so far as relevant is in the following terms:

"(1) A restricted reporting order may be made in the following types of proceedings:- (a) any case which involves allegations of sexual misconduct; ...

(2) A party ... may apply for a restricted reporting order (either temporary or full) in writing to the Employment Tribunal Office, or orally at a hearing, or the tribunal or chairman may make the order on its or his own initiative without any application having been made."

Paragraphs (3) to (5) relate to temporary RROs. The rule continues:

"(6) All parties must be given an opportunity to advance oral argument at a pre-hearing review or a Hearing before a tribunal or chairman decides whether or not to make a full restricted reporting order (whether or not there was previously a temporary restricted reporting order in the proceedings).

(7) Any person may make an application to the chairman or tribunal to have a right to make representations before a full restricted reporting order is made. The chairman or tribunal shall allow such representations to be made where he or it considers that the applicant has a legitimate interest in whether or not the order is made.

(8) Where a tribunal or chairman makes a restricted reporting order -

(a) it shall specify in the order the persons who may not be identified; (b) a full order shall remain in force until both liability and remedy have been determined in the proceedings unless it is revoked earlier;

...

(10) A tribunal or chairman may revoke a restricted reporting order at any time.

(11) For the purposes of this rule liability and remedy are determined in the proceedings on the date recorded as being the date on which the judgment disposing of the claim was sent to the parties, and references to a restricted reporting order include references to both a temporary and a full restricted reporting order."

[10] Finally, rule 60(1) provides:

"Subject to the provisions of these rules and any practice directions, a tribunal or chairman may regulate its or his own procedure."

The present proceedings

[11] A claimant ("B") presented a claim against the present respondents and an individual ("A") alleging that she had been discriminated against by them contrary to the Sex Discrimination Act 1975. (We have used the same letters for purposes of anonymisation as were used by the Employment Appeal Tribunal ("EAT").) It was clear from the terms of her claim that it contained allegations of sexual misconduct. The respondents and A applied both in writing and at the start of the evidential hearing on 8 May 2006 for an RRO. This application was granted. The hearing then proceeded, until on the fifth day, 23 June 2006, B withdrew her complaint. The result was that proceedings were brought to an end against the respondents on that date, in terms of rule 25(3) of the 2004 Rules. Neither the respondents nor A applied in terms of rule 25(4), either on 23 June 2006 or subsequently, to have the proceedings against them or him dismissed; but on that date they undertook to make no application for costs.

[12] The appellant was present at the hearing on 23 June 2006. After the complaint had been withdrawn, she passed a note to the tribunal requesting it to revoke the RRO which had been made on 8 May 2006, or to issue a written judgment on the proceedings. The tribunal declined to make any ruling on the application at that time, but did express the view that, since it was open to the press to intervene when an RRO was contemplated, it did not appear unreasonable to proceed on the basis that it was open to the press to intervene to request that an RRO be lifted "in circumstances in which it might remain in force indefinitely". The tribunal allowed the appellant to make a written application that the RRO be revoked. They refused her request for a written judgment. The appellant duly made a written application by letter dated 12 July 2007. The application, and objections to it by the respondents and A, were heard by the tribunal on 17 November 2006.

[13] Two arguments were advanced by the respondents and A before the employment tribunal. These were: (1) that, by reference to rule 50(7) of the 2004 Rules, the tribunal had no right to allow the appellant to be heard in support of her letter of 12 July 2007 seeking revocation of the RRO; and (2) that, by reference to rule 25(3), the tribunal had no jurisdiction to revoke the RRO, being functus after the withdrawal of the complaint. By order dated 13 December 2006 the employment tribunal found in favour of the appellant on both of these issues and revoked the RRO, delaying the revocation by 28 days to allow for an appeal by the respondents and A to the EAT. By judgment dated 30 January 2008 the EAT allowed the appeal and quashed the employment tribunal's order of 13 December 2006. In summary, the EAT held that the appellant had no right to be heard before the employment tribunal; and further, the claim having been withdrawn against the only respondents and there being no other parties to the case, the tribunal was functus and had no jurisdiction to pronounce an order revoking the RRO.

[14] The appellant has now appealed against the decision of the EAT to this court under section 37(1) of the Employment Tribunals Act 1996. The respondents, naturally enough, resist this, and invite us to accept as correct the reasoning of the EAT on each of the two main issues. The parties are agreed that, if the appeal succeeds, the order of the employment tribunal revoking the RRO will be restored; but if it does not, the RRO will remain in force in perpetuity. This is because the conditions specified for its cessation by rule 50(8)(b) of the 2004 Rules cannot now come into being, since both liability and remedy will never be determined in the proceedings.

[15] The issues which are raised in this appeal are not concerned with the merits of the decision of the employment tribunal to revoke the RRO on the facts it had before it. The decision to revoke the RRO was not challenged on its merits before the EAT. Rather the appeal to the EAT was concerned with the question whether the 2004 Rules gave the tribunal power to act as it did in coming to that decision. The appeal to this court therefore raises questions of construction alone. The parties were agreed that, since the employment tribunal and the EAT are creatures of statute, the source of any such power must be found, if at all, in the primary and secondary legislation quoted above, and that the usual canons of construction must be applied to the legislation. These include the rule that where the literal meaning of a general enactment covers a situation for which specific provision is made by some other enactment within the Act or instrument, it is presumed that the situation was intended to be dealt with by the specific provision: see Bennion on Statutory Interpretation (5^th. ed.), p. 1164.

[16] We do of course bear in mind that the proceedings engage Articles 6, 8 and 10 of the European Convention on Human Rights. The approach to construction must be informed by the Convention; but since we are not concerned with the merits we do not require to balance the various competing considerations which arise from these Articles, none of which is unqualified. On the other hand, we recognise, as senior counsel for the appellant submitted, that an RRO prevents the full reporting of judicial proceedings, and any interference with the right to publish in full what goes on in a Court or tribunal is a serious matter of constitutional significance. Counsel referred to Tradition Securities & Futures S.A. and another v Times Newspapers Limited and others UKEATPA/1415/08/JOJ; UKEATPA/1417/08/JOJ 10 November 2008, in which Underhill J., delivering the judgment of the EAT, said, under reference to section 11(1) of the Employment Tribunals Act 1996 and rule 50 of the 2004 Rules:

"[4] The effect of those provisions is that an employment appeal tribunal is empowered to make an order prohibiting the identification not only of any person making an allegation of sexual misconduct but also of any person 'affected by' such an allegation. That is on its face a very wide power, but in R v North London Industrial Tribunal, ex parte Associated Newspapers Limited [1998] ICR 1212 Keene J. emphasised that in applying it it was necessary to have regard to the legislative purpose and also to the importance of the principles of freedom of the press and open justice recognised ever since Scott v Scott [1913] AC 437 (and latterly reinforced, if reinforcement were necessary, by Article 10 of the European Convention on Human Rights). However it is clear that, even on that basis, persons 'affected by' allegations of sexual misconduct must include the alleged perpetrators of such misconduct (as well, at least sometimes, as other witnesses) and that accordingly in an appropriate case those persons may attract the protection of an RRO: such an order was indeed upheld by Keene J. in Associated Newspapers itself.

[5] That represents a substantial statutory qualification of the normal rule that all evidence given in a court or tribunal shall be capable of being freely - and contemporaneously - reported: it is the aspect of contemporaneity which is relevant in the case of RROs because, as is clear from section 11(1)(b) (and see also rule 50(8)(b)), the order ceases to have any effect once the proceedings are concluded. The purpose of affording a measure of protection to complainants is clear enough and is explicitly set out in Associated Newspapers, namely that they might be deterred from bringing justified complaints by fear of publicity in relation to what are generally peculiarly sensitive matters. But the purpose of affording protection to alleged perpetrators is not the subject of any explicit discussion in Associated Newspapers or in any other authority to which we were referred (or indeed in the ministerial statements preceding the introduction of these provisions). That is a little surprising, since the protection afforded to alleged perpetrators is in marked contrast to the position of defendants in criminal prosecutions for sexual offences. However, in both Associated Newspapers and the earlier decision of this Tribunal in M v Vincent [1998] ICR. 73 there is reference to the risk of witnesses - which would of course include alleged perpetrators - being put under 'undue pressure' by the kind of peculiarly intense media coverage which often accompanies cases with a sexual element and to the effect that that might have on the way in which they were able to give their evidence."

Underhill J. then went on to refer to an argument that a further purpose of the protection was to prevent unjustified intrusion on the privacy of alleged perpetrators, particularly under reference to Article 8 of the Convention. The tribunal preferred to express no view about it.

May a journalist, who is not a party to the proceedings, apply for revocation of a full RRO?

[17] Senior counsel for the appellant accepted that she did not come within the limited circumstances in which she had a right to make representations under rule 50(7), since that provision deals only with the making of an RRO, and not with its subsequent variation or revocation. But, he submitted, to say that the appellant did not have standing under rule 50(7) to have a right to make representations to be heard did not mean that the employment tribunal did not have power to allow her representations about revocation to be heard. Counsel accepted that the tribunal could only do what was permitted by the 2004 Rules. But, he submitted, the powers given by rules 10(1), 14(3) and 60(1) were wide enough to allow the tribunal to do what it did, when it allowed the appellant to make representations at the hearing on 17 November 2006. It was accordingly wrong to argue, as the respondents did before the employment tribunal and in their notice of appeal to the EAT, that, because there was no express statutory provision entitling the appellant to make an "application to have a right to make representations" with a view to revocation of the RRO, she "could not be heard" on the matter.

[18] Before the 2004 Rules came into force, there was no provision in the 1993 Rules or the 2001 Rules allowing a person, not a party to the proceedings to make representations to a tribunal before a full RRO was made. There was, however, a practice of allowing members of the press who wished to make representations against the making of an order to do so under the general power of a tribunal to manage its proceedings. In Scottish Daily Record & Sunday Mail Limited v McAvoy and others, EAT/1271/01, 30 November 2001, Lord Johnston, in delivering the opinion of the EAT, said in an obiter passage at paragraph 3:

"[W]e consider it to be more appropriate in circumstances such as these where the press claim an interest in proceedings before the Employment Tribunal, for them to be heard under the general power to regulate procedure rather than to allow them to be sisted as a party."

It would appear that the "general power" referred to was that contained in rule 15(1) of the 2001 Rules. There may also have been a similar general practice in England under the Industrial Tribunals Rules of Procedure 1993: See A v B [1998] ICR 55 (reported sub nom. Chessington World of Adventures Limited v Reed, ex parte Newsgroup Newspapers Limited [1998] IRLR 56) per Morison J., delivering the judgment of the EAT, at pages 66 to 67.

[19] In the present case, the EAT, who did not agree with the obiter view expressed in Scottish Daily Record, said that, whatever the position was prior to the introduction of the 2004 Rules, the task for the employment tribunal was to apply those rules. They were satisfied that the only persons who could apply for the revocation of a full RRO were those who were parties to the case. They said that the absence of any provision mirroring that in rule 50(7) emphasised that that was so. If it had been intended that a person who was not a party be allowed to make such an application there was no reason why the rules should not have included express provision to that effect. The fact that they did not do so showed that the intention was that persons other than parties would not have any such right. The approach favoured by the EAT was that an employment tribunal might exercise its power under rule 10(2)(r) to make an order joining a person such as the appellant as a party to the proceedings. In expressing this view, the EAT proceeded on the basis that a person such as the appellant has "a legitimate interest in the outcome of the case". Once joined as a party, in the view of the EAT, such a person would be subject to appropriate controls and other parties would be able to seek any appropriate order against her, such as an order for expenses.

[20] We accept that under the 2004 Rules it would have been open to the appellant to apply to be joined as a party to the proceedings, although it may be open to doubt whether a journalist has "an interest in the outcome of the proceedings" within the meaning of rule 10(2)(r). It is true also that in the Associated Newspapers case, Keene J. said at paragraph 6:

"It would be open to a newspaper or other media organisation to apply to be joined as a party to the proceedings before the industrial tribunal for the purpose of making an application for the revocation of an RRO, and to make such an application."

But that was said before the introduction of rule 50(7) of the 2004 Rules, which allows a person to make an application to have a right to make representations before a full RRO is made, without that person having to become a party to the proceedings. In the ordinary course, persons become parties to proceedings because their rights, duties, and more generally their interests may be affected by the outcome of the proceedings. A person in the position of the appellant has an interest only in the broader sense in which any member of the public may be said to be "interested" in the proceedings (and not specifically their outcome). Further, a party to proceedings, as is clear by reference to the 2004 Rules throughout, is fully involved in them.

[21] In the present case the EAT considered that under rule 11(1) a person in the position of the appellant would, if sisted as a party to the proceedings, be able to apply for an RRO to be varied or revoked. We note, however, that rule 11(1) is not confined to RROs, and it would seem anomalous that a journalist, who has no "interest in the outcome of the proceedings", should be able, by becoming a party in terms of that rule, to apply for any order (not just an RRO) to be issued, varied or revoked, or for a case management discussion or pre-hearing review to be held. As senior counsel for the appellant pointed out, becoming party to the proceedings opens the person to the jurisdiction of the tribunal in matters such as expenses under rule 38(1) and the provision of additional information under rule 10(2) (b).

[22] In our opinion, the 2004 Rules clearly distinguish between a person having "an interest in the outcome of the proceedings" (rule 10(2)(r)) and a person having "a legitimate interest in whether or not the [RRO] is made" (rule 50(7)). The question raised by the present case is whether a person in the latter category is entitled, in the absence of express provision in the rules, to apply to be allowed to make representations to have the RRO revoked. In our opinion, contrary to that of the EAT, the general provisions of rules 10(1) and 60(1) confer a sufficiently wide discretion on an employment tribunal or its chairman to adopt a procedure which would enable a person in the position of the appellant to make representations about the variation or revocation of an RRO. The specific provisions of rule 50(7) do not appear to us to exclude resort to these general provisions at a stage in the procedure which is neither covered nor expressly or impliedly excluded by the specific provisions. The general practice of allowing the press to make representations before the 2004 Rules came into force was based on the general powers enjoyed by tribunals under rules 4 and 15 of the 2001 Rules to manage cases management and control procedure. The changes made by the 2004 Rules should not, in our opinion, be seen as restricting the discretionary powers which an employment tribunal has to regulate its own procedures and manage the case before it. We agree with senior counsel for the appellant that to construe the rules so as to leave to the tribunal the decision whether or not to hear representations from the press [DE3] as to the revocation of an RRO makes practical as well as legal sense.

[23] Counsel drew attention to X v Z Limited [1998] ICR 43 per Waite L.J. at page 54D:

"[T]he tribunals themselves are the best judges of the case management decisions which crop up every day as they perform the function, an important but seldom an easy one, of trying to do justice with the maximum of flexibility and the minimum of formality to the problems that arise from the employment relationship and its termination. Decisions of the kind that the chairman was required to make in this case frequently call for a balance to be struck between considerations of time, cost and convenience as well as fairness to the parties, and in the vast majority of cases can and should be left to the tribunals to resolve for themselves without interruption from the appellate process."

It appears to us to have been consistent with this approach, and in accordance with common sense, that the employment tribunal in the present case allowed the appellant to make representations about the revocation of the RRO. We disagree with the views expressed by the EAT in this regard.

[24] It would, we cannot help adding, assist greatly if the matter were put beyond argument by the introduction of an express provision, in rule 50(7) or elsewhere in the 2004 Rules, enabling a person such as the appellant to apply to the Employment Judge or tribunal to have a right to make representations about the variation or revocation of a restricted reporting order. This need not be unduly burdensome on the parties to the proceedings. As is provided by rule 50(7), the matter is one in respect of which the applicant requires to satisfy the Employment Judge or tribunal that he or she has a legitimate interest in whether or not the order is made. A party who seeks to keep a full RRO in force, and thus to restrict the freedom of the press to publish reports of the proceedings fully and contemporaneously, can hardly complain if a journalist, who is able to demonstrate a legitimate interest in whether or not the order is varied or revoked, seeks to make representations thereanent.

[25] But all of this presupposes that there are still live proceedings before the employment tribunal, otherwise it is functus and has no jurisdiction to entertain any application except to the extent permitted by the rules. This is the topic to which we shall now turn.

At which point does the jurisdiction of the employment tribunal to consider such an application come to an end?

[26] The answer to this question depends on the proper construction of rule 25 of the 2004 Rules. We are not concerned with the amendment to the rules made by the 2008 Regulations with effect from 6 April 2009; and in any event the amended version is not materially different for present purposes.

[27] The EAT held that once withdrawal of the claim had been intimated to the employment tribunal, the tribunal immediately became functus in the circumstances of the case, so that it had no power thereafter to revoke the extinct RRO. This was because rule 25(3) provides that where the whole claim is withdrawn (as it was here), subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date. Unless the respondent applies, in terms of paragraph (4), to have the proceedings against him dismissed, the effect of the two paragraphs read together is that where the whole claim is withdrawn, proceedings are brought to an end, without the further need for them to be dismissed. The result is that liability and remedy are never determined in the proceedings, within the meaning of rule 50(8)(b) and (11), so that the event which the draughtsman contemplated as bringing a full RRO to an end never occurs. Rule 50(10) does provide that a tribunal or chairman may revoke an RRO at any time; but senior counsel for the appellant accepted that this was subject to regulation 16(1) of the 2004 Regulations, which provides that the rules in Schedule 1 (the 2004 Rules) shall apply in relation to all proceedings before an employment tribunal except where separate rules of procedure made under the provisions of any enactment are applicable. In consequence, the power under rule 50(10) may only be exercised while proceedings are current.

[28] Senior counsel for the appellant sought to base his argument on the exact wording of rule 25(3). He pointed out that the rule provides only that, on withdrawal, proceedings against the respondent are at an end. This, he submitted, left open the possibility that proceedings not involving the respondent continued to exist, notwithstanding the notified withdrawal. An RRO and the procedure relating to it were, he submitted, separate proceedings. Counsel sought to derive comfort from the final sentence of rule 25(3), whereby withdrawal does not affect proceedings as to costs, preparation time or wasted costs.

[29] Despite the ingenuity of counsel, we are not persuaded that the construction he sought to place on the relevant provisions of the 2004 Rules is sound. Our reasons may be stated quite briefly. In terms of rule 50(1) an RRO is made in the types of proceedings specified at sub-paragraphs (a) and (b) (of which the former is applicable in the present case). If the proceedings are brought to an end, as provided by rule 25(3), there is no scope for treating it as being the subject matter of separate proceedings, unless there is express provision to that effect. The last sentence of rule 25(3) is entirely specific as to the proceedings as to costs, preparation time or wasted costs which survive the ending of the main proceedings. In the absence of such an express provision as to revocation of any RRO, we are driven to the conclusion that there can be no further proceedings with regard to a full RRO. The consequence of this is that we have to agree with the EAT that after intimation of the withdrawal of the claim the employment tribunal had no power to revoke the RRO.

[30] The terms of the 2004 Rules as presently drafted (and even subject to the 2008 amendment) do not allow us to express a view as to whether the situation which has arisen here is due to an oversight in the drafting of the rules or whether it is a deliberate consequence of them. We can readily understand that one consideration is that, while an RRO is current, witnesses may feel encouraged to give their evidence more freely. Once liability and remedy have been determined in the proceedings by the sending to the parties of a judgment disposing of the claim (rule 50(1)), the terms of the judgment will have been published and there is no continuing reason why the evidence which the employment tribunal heard, and on which the judgment is presumably based, should not be made public. Different considerations may arise where, as here, the proceedings are brought to an end by withdrawal of a claim. This may follow mediation, the outcome of which may be confidential to the parties. If the outcome is confidential, and indeed if the parties have provided that, so far as they are concerned, the RRO is to remain in force, policy considerations may point in favour of maintaining confidentiality. It is one thing to lift the RRO and allow publication when the decision of the tribunal has been promulgated (rule 16(5)(b), since the decision will include the tribunal's assessment of all the evidence and its findings as to whether the allegations of sexual misconduct have been proved. It would be quite another thing to lift the RRO when the evidence has been part heard and the tribunal has expressed no view as to its credibility or reliability, so that the evidence alleging sexual misconduct could be reported without any of the evidence that might have been led in rebuttal. We do not purport to offer a solution, which will be for those concerned with any further amendment of the 2004 Rules.

Result

[31] Although we have found in favour of the appellant on the first issue, we can see no alternative, on a proper construction of the 2004 Rules, to finding against her on the second. Accordingly, this appeal must be refused. The consequence is, as was recognised by the EAT, that the RRO which was made in the present case will remain in force in perpetuity, and it will not be open to the appellant (or anyone else) to report on the evidence which was led before the proceedings were abandoned, in such a way as to identify any of the individuals concerned.