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Cite as: [1992] UKEAT 301_92_707, [1992] UKEAT 301_92_0707

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BAILII case number: [1992] UKEAT 301_92_0707

Appeal No. EAT/301/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 July 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MR A FERRY MBE

MR R H PHIPPS

THE NATIONAL GRID COMPANY Plc APPELLANTS

MR K S VIRDEE RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant Mr C Wynter

(of Counsel)

Norbert R M Colbert

The National Grid Co Plc

Secretary's Department

Legal Services

National Grid House

Summer Street

LONDON SE1 9JU

For the Respondents Mr D O'Dempsey

(of Counsel)

Messrs Lawford & Co

Solicitors

102-104 Sheen Road

Richmond

Surrey

TW9 1UF

MR JUSTICE WOOD (PRESIDENT) After a hearing at Southampton on 20th March 1992 an Industrial Tribunal made an Order under Rule 4(4) of the Industrial Tribunal Rules striking out those parts of the two Notices of Appearance of the Respondents (The National Grid Company) contained in paragraphs (g) onwards and directed that they should be debarred from defending the proceedings on the grounds contained in those paragraphs. It also awarded to the Applicant the costs of that day's hearing to be taxed on the higher County Court scale if not agreed.

The Company now appeals.

The learned Chairman gave a careful and detailed decision which raised the principles upon which an Industrial Tribunal should exercise its discretion to strike out the whole or part of proceedings before it.

An Industrial Tribunal is a statutory body established under S.128 of the Employment Protection (Consolidation) Act 1978. Schedule 9 gives power to the Secretary of State to make Regulations governing Tribunal procedure and in particular under paragraph 1(2)(3),

"The Regulations may in particular include provision -

...

(e) for enabling an industrial tribunal, on the application of any party to proceedings before it of its own motion, to order -

(i)in England and Wales, such discovery or inspection of documents, or the furnishing of such further particulars, as might be ordered by a county court on an application by a party to proceedings before it, ..."

The relevant Rule is Rule 4.

4 - (1)A tribunal may -

(a)subject to Rule 3(2), on the application of a party to the proceedings made either by notice to the Secretary of the Tribunals or at the hearing of the originating application, or

(b)in relation to sub-paragraph (i) of this paragraph, if it thinks fit, of its own motion -

(i)require a party to furnish in writing to the person specified by the tribunal further particulars of the grounds on which he or it relies and of any facts and contentions relevant thereto;

(ii)grant to the person making the application such discovery or inspection (including the taking of copies) of documents as might be granted by a county court; and

(iii)require the attendance of any person (including a party to the proceedings) as a witness, wherever such person may be within Great Britain, and may, if it does so require the attendance of a person, require him to produce any document relating to the matter to be determined.

and may appoint the time at or within which or the place at which any act required in pursuance of this Rule is to be done.

(2)...

(3) Every document containing a requirement under paragraph (1)(ii) or (1)(iii) of this Rule shall contain a reference to the fact that, under paragraph 1(7) of Schedule 9 to the 1978 Act, any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to a fine, and the document shall state the amount of the current maximum fine.

(4) If the requirement under paragraph (1)(i) or (1)(ii) of this Rule is not complied with, a tribunal, before or at the hearing, may dismiss the whole or part of the originating application, or, as the case may be, strike out the whole or part of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether: provided that a tribunal shall not so dismiss or strike out or give such a direction unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why such should not be done."

The sanction referred in Rule 4(iii) above and contained in Schedule 9 reads as follows - "(7) Any person who without reasonable excuse fails to comply with any requirement imposed by the regulations by virtue of sub-paragraph (2)(d) ... or any requirement with respect to the discovery, recovery or inspection of documents so imposed by virtue of sub-paragraph (2)(e) shall be liable on summary conviction to a fine not exceeding [level 3 on the standard scale].

The present maximum of the fine is £400.

Discovery and interrogatories are dealt with in Order 14 of the County Court Rules 1981 and the relevant Rule for failure to comply with an order for discovery is Rule 10.

"Rule 10(1) If any party who is required by an order under any of the foregoing rules to make discovery of or disclose any documents or to produce any documents for inspection or for any other purpose or to supply a copy of any document fails to comply with the order, the court may make such order as it thinks just, including in particular an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment entered accordingly."

Rules 10(2) and (4) gives the power to commit a party or his solicitor for contempt. The wording is very similar to that in Order 24, Rule 16 of the Rules of the Supreme Court.

It will be seen that the structure of Rule 4 of the Industrial Tribunal Rules and the Rules of the County Court are similar in that there is a severe sanction whether by committal or by fine and there is the power also to strike out.

The basic question raised by the present appeal is whether an Industrial Tribunal, in exercising its powers under Rule 4 should follow the practice of the County Court which follows the practices of the High Court.

In its original form paragraph 1(2)(e) of the 9th Schedule of the 1978 Act reads -

"The regulations may in particular include provision -

(e) for granting to any person such discovery or inspection of documents or right to further particulars as might be granted by a county court in England and Wales ..."

The present wording was substituted by S.29(3) and Schedule 6, paragraph 26 of the Employment Act 1989. It will be noted that in this connection there is now express reference to an order which could be made by a county court.

The present wording of Rule 4(1) was in existence prior to the amendment to paragraph 1(2)(e) of Schedule 9. It is notable that there is no specific reference in Rule 4 to an order of the county court. However, in many cases before us the principles of discovery and inspection and indeed of the granting of particulars have been applied as in the higher courts and we can see no reason why the same principles should not apply for the enforcement of orders made under this Rule. Indeed it is probably desirable that this should be so, so that practitioners can anticipate the principles upon which an Industrial Tribunal will approach the exercise of its discretion.

We therefore decide that the learned Chairman in the present case must exercise his discretion under Rule 4(4) in accordance with the principles followed by the County Court and the High Court.

What then are those principles?

The earliest relevant decision in the High Court is HUSBAND'S OF MARCHWOOD LTD v. DRUMMOND WALKER DEVELOPMENT LTD [1975] 1 WLR 603. In April 1971 the plaintiffs brought an action against the defendants in contract. The defendants alleged breach of contract by the plaintiffs and counter-claimed. On a summons for directions in April 1973, discovery was ordered. The plaintiffs produced their list in June 1973 but the defendants failed to comply and in September 1974 were ordered to pay into court the difference between the claim and counter-claim together with a further order for discovery within 28 days. On 29th October 1974 the plaintiffs issued a summons seeking an order debarring the defendants from defending the action on the ground that they had failed to comply with the order for discovery. Two days before the hearing of that summons the defendants produced their discovery. At the hearing it was ordered that the defendants pay the balance of the plaintiffs' claim into court or be debarred from defending the action.

The defendants appealed and the Court of Appeal allowed the appeal. The relevant parts of the judgments, which are quite short, are from the leading judgment of Russell LJ at p.605E and the judgment of Stamp LJ.

"It is said that there is jurisdiction conferred in a case like this for the judge to have simply made an order striking out the defence and entering judgment on the claim. It is said that he did a much lesser thing, because he made the order which I have in fact read out in connection with payment of the total amount of the plaintiffs' claim into court. I am prepared to assume (but I do not wish to be thought to be deciding it) that although discovery had in fact been made before the hearing, there was nevertheless jurisdiction in the judgment to make an order striking out the defence. Nevertheless, it appears to me that in the circumstances of a case such as this, an order striking out the defence unconditionally would have been wholly inappropriate and quite wrong. An order such as has been made now also seems to me wholly inappropriate and quite wrong. Supposing that at the hearing it had emerged that discovery was (so to speak) just round the corner, then it seems to me that the correct and only proper order the judge could have made would have been to say "order the defence to be struck out, and judgment for the plaintiffs on the claim if the lists for discovery are not produced in," say, two days, three days, seven days, some very short time. Compliance with that would not have involved the defendants, who may be right at the end of the day and who may be hard put in these hard times to find the money, paying £1,500, or whatever the amount is, into court. It would not have been right in those circumstances to make any other order.

What then when in fact already before the hearing the order has been complied with? It seems to me that the condition requiring payment of the balance into court is something which is quite inappropriate, in the sense that it is a punishment which does not fit the crime. The object of the plaintiffs has in fact been achieved, because their summons has produced what they wanted, namely, that the due processes of the action should go forward. I think that what should have been done in September was for the plaintiffs to ask for an order striking out the defence unless within a certain time the defendants had produced their discovery; and I think, that not having been done then, an order which puts them in the situation later of having to produce the whole of the plaintiffs' claim, albeit only into court, when they have ultimately complied with the last requirement, is an order which should not have been made. ..."

Stamp LJ"I agree. I think that RSC, Ord 24, r.16(1) is designed to secure compliance with the rules and orders of the court relating to discovery, and not to punish a party for not having complied with them within the time limited for the purpose. I think normally - there may be exceptional circumstances - that an order which is not aimed to achieve that result is prima facie wrong: wrong either because it is not within the terms of RSC, Order 24, r.16(1), a point on which I express no opinion, or, if within the terms, is a wrong exercise of the discretion of the court. ..."

A number of principles can be drawn from that case: first, that the principle purpose of Order 24, Rule 16 was to achieve compliance with the order for discovery; secondly, that punishment was not its purpose; thirdly, that the Court of Appeal interfered with the judge's discretion because it considered the order "wholly inappropriate and quite wrong"; and fourthly, that it had grave doubts whether upon the hearing of an application under that Rule, any order could be made unless the offending party was still in breach of the order. In this connection we would also remind ourselves of BEACARD PROPERTY CO v. DAY [1984] ICR 837.

That case was considered by Millett J in LOGICROSE LTD v SOUTHEND UNITED FOOTBALL CLUB LTD (reported only in The Times newspapers). We have obtained a transcript of the relevant passages from his judgment and this will be filed together with a copy of the present judgment in our own library.

The relevant facts of that case were that the defendant, the Football Club, sought an order against the plaintiffs that the action be dismissed and the defence to a counter-claim struck out on the basis that the plaintiffs had failed to comply with the requirements of an order for discovery. The allegation against the plaintiffs was that the principal director and shareholder had obtained a document during the course of trial, had deliberately suppressed it and indeed for a time had concealed its existence from the court. The learned Judge held that it was not an appropriate response by the court to this action, which amounted to contempt, to debar the offender from all further part in the proceedings and to give judgment against him accordingly. However, he considered that striking out might be appropriate if the failure had rendered it impossible to conduct a fair trial and would make any judgment in favour the offender unsafe. It should not be used as a ground of punishment. Before the court took such a serious step as to strike out, it needed to be satisfied that there was a real risk of that happening. The learned Judge stressed that the object of threatening to dismiss was an action to produce compliance with the order, that was the object to be achieved and in his judgment an action ought to be dismissed or the defence struck out only in the most exceptional circumstances, once the missing document had been produced and the order complied with, and then only if, despite compliance with the order, there remained a real risk that justice could not be done.

The principles of these cases have recently been confirmed and accepted by the Court of Appeal in LANDAUER LTD v. COMINS & CO (a firm) (reported in The Times newspaper, 7 August 1991). The leading judgment was given by Lloyd LJ and it was common ground that the question which the Judge had had to ask himself was whether there had been a real or substantial or serious risk that a fair trial was no longer possible.

The learned Lord Justice went on to say that although in ordinary cases punishment was not the intention of the rule, he could imagine cases of contumacious conduct, such as the deliberate suppression of a document, which might justify striking out on the analogy that striking out for want of prosecution, even if a fair trial was still possible. On the facts of that case and on the assumption that the plaintiffs destruction of the documents had been merely inadvertent, then the judge had been justified nevertheless in reaching the conclusion that striking out was the appropriate order to make.

We also bear in mind SAMUELS v LINZI DRESSES LTD [1981] 1QB 115, a case in which the Court of Appeal considered a long line of authority on the power of a court to extend time where an "unless" order had been made and had not been complied with.

That case emphasises yet again that the purpose of seeking to ensure compliance with orders is to try to bring a case to trial, unless it is almost impossible to ensure a fair result eventually. The leading judgment was given by Roskill LJ and at p.126E he says this -

"To say that there is jurisdiction to extend the time where an "unless" order has been made and not complied with is not to suggest - let this be absolutely plain - that relief should be automatically granted to parties who have failed to comply with the orders of the court or otherwise than upon stringent terms either as to payment of costs or as to bringing money into court or the like. Orders as to time, and in particular as to the time for delivery of pleadings and particulars are made not to be ignored but to be complied with. In the present case, long before the problem caused by the Christmas holidays last year arose, there had been serious delay in complying with various orders, and the defendants were at mercy when they came before Judge Hawser. They had not done that which they ought to have done. They were not, save perhaps at the very last moment, deserving of any sympathy. But at the last moment they had made a real effort to comply with the order and they were perhaps unlucky that their efforts did not meet with success.

In my judgment, therefore, the law today is that a court has power to extend the time where an "unless" order has been made but not been complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. Primarily, it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not."

The only other case to which we need refer is MEDALLION HOLIDAYS LTD v. BIRCH [1985] ICR 578. The wording of the 9th Schedule and of the earlier parts of Rule 4 were not cited to the court on that occasion nor was the MARCHWOOD case. It is also right to note that since MEDALLION HOLIDAYS was decided the later cases cited above have been decided and they have given us guidance. We would also comment that the facts of MEDALLION present a far more serious situation and a more deliberate failure to comply than the facts of this case, as we read them. The passage upon which the Tribunal relied for its guidance and upon which the Respondent before us is at p.589A - G.

"The striking-out of the entire notice of appearance was indeed a severe order, one that might even be regarded by many people as harsh. But it has to be remembered that Parliament has conferred upon the tribunals a jurisdiction of an exceptional kind and has constituted them at the same time masters (within their broadly framed procedural rules) of their own procedure. They are required to dispense their own distinctive form of justice: one that keeps formality to a minimum, which shuns legalism, and which sets out to achieve the maximum expedition consistent with fairness to the parties. Expedition is required not only by the nature of the cases themselves, which frequently involve hard or hurt feelings better given an early outlet than left to be brooded over. It is also called for by the nature of the remedy which the tribunals are required to provide. They are under a statutory duty to consider as their primary remedy in cases where a dismissal has been found to be unfair an order for reinstatement or re-engagement. The practicability of making any such order is bound in almost every case to diminish with the passing of time.

It seems to us, therefore, that the appeal tribunal should in principle be slow to infer a misguided exercise of discretion merely because an industrial tribunal happens in any particular case to have exercised the striking-out discretion with more severity (or for that matter with greater lenience) than might have been expected from a master or district registrar faced with comparable conduct in ordinary civil litigation. We see the order in the present case as a stern decision, certainly, but not as one with which there is any scope for intervention on our part. We have not been persuaded that the chairman left out of account anything which he ought to have had in mind or improperly took into account anything that was not necessary or relevant to the due exercise of his discretion. Nor do we regard his decision as perverse. Mr Malek went so far as to submit that a total striking-out order lay outside the scope of a proper exercise of the discretion altogether, because a striking-out of the insufficiently particularised paragraph 8 would have been sufficient to enable the industrial tribunal to do justice at the hearing. We do not agree. An order so limited would not have done anything to compensate the employee for what he had suffered as a result of the delay which had been occasioned by the failure to give those particulars, and the chairman was entitled in our judgment to take the view which he expressed in his decision that some more powerful and conspicuous sanction was required to demonstrate that the interlocutory directions of a tribunal are not made lightly and that parties who treat them casually are liable to do so at peril of losing their case altogether."

It is clear from that passage that this court felt that the order made was harsh. It was also relevant that delay in that case would adversely affect the applicant who was seeking reinstatement or re-engagement. Lastly, towards the end of the passage cited, the Tribunal stressed the view that the learned Chairman had made his order as a powerful and conspicuous sanction to demonstrate interlocutory directions of tribunals are not made lightly and that they are ignored at the peril of the party ignoring it. That in our judgment indicates the element of punishment which is not in accordance with the principles to be applied.

It follows therefore that we distinguish MEDALLION HOLIDAYS from the problems which arise in the present case.

To summarise the principles as we have sought to distil them from the cases, they are that the principle object of Rule 4(4), as the similar rules in the County Court and the High Court, is to obtain compliance with the orders made and that it is only in the most serious cases that punishment should be considered. In the first instance punishment is envisaged either under Rule 4(3) or by striking-out under Rule 4. The latter is far more serious and final. It should only be utilised in those cases where any judgment ultimately obtained could not be considered to be fair between the parties.

The approach of the Industrial Tribunal to the law is set out in paragraphs 37 to 42 inclusive of the Decision -

"37 We should consider what prejudice there has been to the applicant, and counsel for the respondents has drawn our attention to the decision of Millett, J in Logicrose v. Southend United Football Club, reported on an Interlocutory matter in The Times on 5 March 1988.

38 In that case the judge considered that a claim should be struck out only in the most exceptional circumstances, where there remained a real risk that justice could not be done.

39 The Logicrose case was of course different, because it had been alleged that a party to the proceedings had sought deliberately to mislead the Court and to suppress the existence of a particular document. This is far being the case in the present situation. However, we note that the Logicrose decision was in the context of the rules of the Supreme Court which provide specifically for committal for contempt resulting in a fine or imprisonment for a breach of the rules. The judge considered that that was an appropriate remedy for a deliberate act of concealment.

40 In the rules of the Tribunal there is no similar provision for committal, although there is no doubt a residuary power for a Tribunal to refer the matter to the High Court for contempt.

41 In the case of the Tribunal, we feel that the principles outlined in the Medallion case are more appropriate since the rules themselves provide for striking out, and we note that the wording contained within Rule 4(4) is different from the wording contained within the rules of the Supreme Court, which under Order 24 Rule 16 provide for the Court "to make such order as it thinks just, including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly."

42 There is no power in the Tribunal rules for such order "as it thinks just" to be made. There is certainly no specific power contained within our rules to commit for contempt, and indeed we do not feel it appropriate normally in an employment situation."

Their final conclusions are contained in paragraph 50 which reads -

"50 The failure to comply with the order of 17 December 1991 is in our view sufficient to found a striking out order, but this view is confirmed beyond a peradventure when considering the conduct of the case by the respondents generally."

Mr Colin Wynter, who appears before us for the Appellant company, criticises those paragraphs in a number of ways. First, he submits that the facts in LOGICROSE were far more serious than those in the present case and it was clear from the judgment of Mr Justice Millett that he did not think it appropriate in that case to strike out. Secondly, he submits that the Industrial Tribunal declined to follow the guidance given in the High Court and should not have made an order for striking out once the discovery had been completed, as it had in the present case. Thirdly, he submits that paragraph 42 is ambiguous. If it is intended to mean that the powers under the County Court and High Court rules are wider than those of an Industrial Tribunal then he submits that the mere fact that Rule 4(4) is not as wide does not prevent an Industrial Tribunal from using all its many other powers to do justice between the parties. However, if the Tribunal felt unable to do justice between the parties then that was a misdirection in that the basic consideration of any use of powers at an interlocutory stage, or at a later stage, is to seek to do that which is fair, just and reasonable between the parties. Fourthly, the Industrial Tribunal makes no reference to Rule 4(3) - the power to prosecute - and therefore the distinction between the power to commit for contempt and the absence of such a power is not valid as both powers are intended to be those used for punishment, if punishment was thought to be appropriate.

He therefore submits that the Tribunal erred in law. In addition he submits that in any event the decision of the Tribunal was perverse as being far too harsh.

We do not need to consider his last point as we are satisfied that his submissions are well founded and with respect to the learned Chairman that there was here an error of approach in law by the Industrial Tribunal.

It follows that we are in a position to exercise our own discretion on the facts that have been found by the Tribunal. We therefore turn to the facts.

The Appellant company came into being when the Central Electricity Generating Board ceased to exist. The county was subdivided into Areas and there has been re-organisation within the Company. Certain posts were new and there was an opportunity for fresh appointments. The Applicant, Mr Virdee, was a second engineer in the Respondent's Wessex area which is part of its central division. During the early part of 1991 there was a vacancy for the appointment of a first engineer in a particular post. The Company did not hold any interviews, they decided that the only person who could be appointed in the first place was a former first engineer and as there was only one applicant he was appointed. Shortly after his appointment he resigned for personal reasons and as a result the vacancy was re-opened. Interviews took place, the Applicant, Mr Virdee, was interviewed and was unsuccessful. This case therefore falls into two parts. The first concerns the failure to consider anyone other than the first engineer appointed and the second raises the issues of discrimination at the interviews at which Mr Virdee was unsuccessful.

The Originating Application in respect of the first part was presented on 12th August 1991, a questionnaire was delivered on 30th August and the Notice of Appearance from the Company was the 24th September 1991. The second Originating Application is dated 4th October 1991, a questionnaire was delivered on 8th October 1991 and the Notice of Appearance is dated 22nd October 1991.

It was obvious that these two matters would be, and should be, heard together so that the initial stages were completed by 22nd October. On 13th December of that year the solicitors instructed by Mr Virdee's Trade Union, and now acting for him, appeared on the scene. Their initial letter sought further and better particulars which stretch over some three pages and discovery of documents which exceed a page. Their last paragraph reads -

"In the light of your failure to provide answers to the two questionnaires and in view of the impending hearing date we are obliged to apply to the industrial tribunal for an order.

The hearing dates which had been fixed at that time were the 15th and 16th January 1992. It must have been clear to anyone that the case could not possibly be ready for hearing on those dates.

That letter was received by the Company on 16th December and on 17th December the Industrial Tribunal made two orders, the first for particulars and the second for discovery. They were to be complied with on or before 6th January 1992.

The Company's legal department wrote on 18th December to the Industrial Tribunal acknowledging receipt of the orders sent by Fax and continuing as follows -

"Can I clarify that it was always the intention of the National Grid Company to reply to the questionnaires submitted by the applicant under the Race Relations Act. I regret the delay in responding to the same. This was due to the amount of detail require to fully settle a reply and the inconvenience of a change of counsel on no less than two occasions.

Indeed, the National Grid only received notice that Lawford & Co, solicitors were acting for the applicant on 16th December 1992 (their letter dated 13th December 1991). We had received no communications or enquiry from Lawford before that date.

The National Grid will do everything in its power to settle the further and better particulars of the Notice of Appearance, the questionnaires and to provide such discovery as requested by the plaintiff by 6th January.

However, there is no doubt that the request will result in a large amount of information and I echo the comments of the applicant's solicitor in respect of the possibility of further adjournment being needed by the applicant."

The Christmas and New Year periods intervened and on 3 January 1992 the Company delivered their answers to the questionnaires, the particulars and documentation in pursuance of the orders against them. By a letter of the same date the Chairman of Tribunals decided to postpone the hearing of 15th and 16th.

The substantive hearing was adjourned until 9th, 10 and 11th March 1992, but in the interim there was some disagreement between solicitors as to whether or not the further particulars were sufficient and Lawford & Co applied once more for an order to strike out under Rule 4(4). Although a hearing date was fixed for 21st February the solicitors were able to reach agreement and this date was vacated.

On 9th March the Applicant's case was opened at the Tribunal and he was called. His evidence was completed and he was about to be cross-examined. During that first day the Company's solicitor had had a conversation with a potential witness, who was a Personnel Manager; as a result it became clear that two relevant documents existed which had not been disclosed. Counsel and solicitors for the Company realised the relevance of these documents and made arrangements overnight to disclose them to the Applicant's counsel and legal advisers. On the second day, the Applicant's counsel sought a brief adjournment to consider those documents, and after that adjournment sought to present an application under Rule 4(4). In view of the necessity to service a notice under Rule 4(4) the application was adjourned to 20th March when it was heard.

In the letter of 13th December 1991 the Applicant's solicitors have asked for certain documents -

"12. Any guidelines issued by the respondents to managers regarding conduct of interviews

13. Any guidelines issued by the respondents to managers regarding the constitution of interviewing panels."

The reply had been

"There are no such documents in existence within the company."

This was clearly not so and the legal department of the Company accepted full responsibility for failure to have made sufficient enquiries. The Tribunal make their findings on this matter in paragraphs 20 and 21 as follows -

"20. It is accepted by Mr Colbert, the solicitor who was responsible within the solicitors' department for handling this matter, that he did not make all necessary enquiries of the manager concerned as to the availability of these documents. He merely sent a covering note enclosing a copy of the applicant's solicitors' letter requesting the documents, and left it to the manager concerned, Mr Rodger, to provide the documents. He did not explain to Mr Rodger the significance of failing to comply properly with the order, and, as a result, the reply from Mr Rodger was merely that the documents did not exist. In fact such documents did exist and Mr Rodger apparently knew of their existence, but at the time the request was made to him he did not realise the significance of the request and, as now recognised on behalf of the respondents, their solicitor did not sufficiently bring home to Mr Rodger the need to consider carefully his reply on this particular matter.

21. We are quite satisfied that had proper enquiries been made by the solicitors department, as one would normally expect from a solicitor in these circumstances, the existence of these documents would have been ascertained easily and disclosed to the applicant."

The importance of proper disclosure in discrimination cases in particular, has been emphasised time and again in view of the difficulties upon an applicant of establishing a case, and Tribunals are entitled to take a serious view of any deliberate omission to disclose documents. However, there is no suggestion here that this was a deliberate act; it was a question of carelessness and an unprofessional approach to the duties involved. It is right in mitigation to point out that as soon as the existence of the documents was known and their relevance appreciated, disclosure was made together with apologies. It is also clear that by the time the application to strike out was heard on 20th March the order for discovery had been complied with and the documents had been disclosed.

All three of us have seen these documents as did the Industrial Tribunal. They are bulky, parts are clearly relevant, a great deal does not at first sight seem to be of great materiality or assistance to the Applicant.

The Applicant and those advising him would clearly need time to consider those documents and indeed in our judgment they will need to issue a further questionnaire. However it would be, in the judgment of this Tribunal, a misconception to imagine that there could ultimately be no fair trial of the issues between these parties as a result of this late disclosure. It may be that the Applicant's counsel will wish to re-open his case; it will almost certainly be that he will wish to ask further questions of his client and indeed will need to confer with his client although his client is at the moment in the witness box. There will also be added costs as a result of the failure to disclose at the correct time. It seems to us that it would have been perfectly possible for those additional interlocutory steps to have been taken within a period of approximately 4 weeks on a tight timetable and that thereafter this matter could have been heard. The Applicant could certainly have had his decision by the end of April. In the interim he is being paid and is maintaining his position as second engineer whilst these proceedings are in existence.

If the order stands then all the interviewers, three of them, will be unable to give evidence The Company will be unable to provide any defence on the second part of this history and the Applicant will succeed. The various remedies open to him will be dealt with by the Industrial Tribunal without hearing the other side at all. The latest documents disclosed seem to us to bear mostly upon the Company's evidence and will be used in cross-examination.

In our judgment the order to strike out was punitive and it seems that it was intended to be so. In all the circumstances of this case we feel that it was an inappropriate order to make. The order which we would have made and which we now make is that the Applicant be permitted to serve a further questionnaire within 24 days of today; secondly that the Respondents answer that within a further 14 days thereafter; thirdly, that application is made within 7 days of today for fresh hearing dates and that the order for costs should stand. We shall hear any further application for costs in this Tribunal.