United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 329_93_2904

Appeal No. EAT/329/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 April 1993

Before

HIS HONOUR JUDGE J PEPPITT QC

MR J R CROSBY

MR D O GLADWIN CBE JP

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MR J MAYNARD          APPELLANT

(1) MS S DE LONG

(2) MERCURY COMMUNICATIONS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S LEVINSON

(SOLICITOR)

Messrs Paisner & Co

Solicitors

Bouverie House

154 Fleet Street

London EC4A 2DQ

For the Respondents NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE 1ST OR

2ND RESPONDENTS


 


JUDGE PEPPITT QC: On 5 June 1992 the First Respondent, Sonya De Long, presented a case of sexual discrimination to the South London Industrial Tribunal. The Respondents to that complaint were her erstwhile employers Mercury Communications Ltd and its development director, Jeff Maynard. Both Mr Maynard and Mercury entered Notices of Appearance and the case was listed on 30 November 1992 for a hearing anticipated to last some ten days.

On 17 March 1993 some six weeks ago, Mr Maynard's solicitors sought discovery from both parties. Mercury served its list on 8 April and subsequently supplied documents requested from it, those documents having been provided yesterday, 28 April. Mrs De Long has only just provided a list of documents, the list being received by Mr Maynard's solicitors again on 28 April.

In view of the difficulties which Mr Maynard's solicitors were experiencing in the context of discovery, they applied to a Chairman of South London Industrial Tribunal on 21 April for an adjournment of the hearing. That application was dismissed by letter dated 26 April, the relevant parts of which read as follows:

"I have referred your letter to a Chairman of the Tribunals who refuses your request for the following reasons:

(1) The delay and inconvenience which would be caused to the other parties by a postponement.

(2) The 2nd Respondent will have to represent himself in any event and should be now well aware of his own case.

(3) The length of the hearing will provide adequate flexibility in meeting any specific problems which may arise."

Mr Maynard now appeals to us from that refusal. He was represented before us by Mr Levinson but Mr Levinson told us that for financial reasons, which he explained, he and his firm would be unable to represent Mr Maynard at the hearing. Accordingly that would be something which Mr Maynard would have to undertake himself.

Mr Levinson has submitted to us that notwithstanding that the Chairman's refusal of his application for an adjournment was a matter of discretion, nevertheless, applying the well known Wednesbury principles the exercise of that discretion was flawed for the following reasons.

The first reason which the Chairman gave was

"The delay and inconvenience which would be caused to the other parties by a postponement"

What Mr Levinson has said is that the position as it is before us now, is that the Second Respondent, Mercury, is unlikely to be inconvenienced by any delay because it too has supported the application for an adjournment albeit on different grounds. The grounds for an adjournment advanced by Mercury is that they believe Ms De Long will in due course make complaint of unfair dismissal, she now having left their employ. They suggest that since some issues between the two claims will overlap, it would be in everybodys interest that they should be heard together. Furthermore, says Mr Levinson, the only party in those circumstances who might be inconvenienced by the delay, is Ms De Long herself. She has largely contributed to it by the lateness in the provision of her list of documents.

The second reason given by the Chairman, and again I quote, was that the Second Respondent "would have to represent himself in any event and should now be well aware of his own case". That is no doubt so, says Mr Levinson, but the purpose of discovery is not to inform a party of his own case, but to enable him to test his opponents'. Accordingly, says Mr Levinson, that ground is misconceived.

The third ground relied upon by the Chairman is that the length of the hearing would provide adequate flexibility in meeting any specific problems which may arise. That may well be so, and we are all conscious of the extent to which Industrial Tribunals are flexible so as to accommodate the needs of the parties. But, says Mr Levinson, flexibility however well intentioned, would not necessarily enable Mr Maynard appearing on his own behalf, to familiarise himself with some 363 documents which Mercury have now provided from their list in accordance with a request from his solicitors.

We have considered this application with some anxiety, not least because Mr Maynard is or shortly will be a litigant in person. We have come to the conclusion that the criticisms which Mr Levinson makes about the grounds upon which the Chairman's discretion was exercised have substance. If that exercise of discretion on application of the Wednesbury principles can successfully be challenged, an appellate court is in those circumstances entitled to exercise its own discretion afresh and that accordingly is what we propose to do.

We have come to the conclusion that the supporting grounds adduced by Mercury for the application to adjourn are of no substance. There might or might not be a complaint of unfair dismissal by Ms De Long. In any event that fact would not in our judgment be a sufficient reason for vacating a ten day hearing. In our judgment the one matter which we must put into the scale on Mr Maynard's side is the fact that between now and the date of the hearing on 5th May, were we to refuse his application, he would be required to master for the purpose of the hearing at least 363 documents being those which have been provided by Mercury. There may perhaps be some few more though we have no reason to dissent from the assertion made in the letter from Ms De Long's solicitors resisting this application that the documents in her list are for the main part identical to those which the First and Second Respondents have already included in their own lists.

Mr Maynard himself was dismissed by the Second Respondent after the events which gave rise to this claim, though not so far as we know as a result of them or even in connection with them. He therefore has five clear days in which to familiarise himself with a bundle of some 363 documents and perhaps a few more. We know from our experience that of those 363 documents a part will be unlikely to see the light of day in the course of the hearing. In our judgment, sympathetic as we are to Mr Maynard, we believe that that exercise should be within his compass. The alternative would be to vacate the hearing listed for ten days and our experience is that it would be unlikely to find a slot in the South London List were that date to be vacated, for many months.

In the circumstances, doing the balancing act as best we can and with some hesitation, we reject Mr Levinson's appeal but we say two things in conclusion. First of all we make a direction to the First Respondent and her solicitors that any documents contained in their list, copies of which are requested by 4 pm today, shall be provided by 4 pm tomorrow. We will hear Mr Levinson on the manner of provision. It will depend on whether he still represents Mr Maynard or not. Secondly, we further direct that those appearing for the First Respondent, Ms De Long, should refer specifically the Chairman who entertains her application, to the third of the reasons relied upon by the Chairman in rejecting this application for an adjournment, that is that the length of the hearing will provide adequate flexibility in meeting any specific problems which arise. In our judgment that reason should be borne in mind and sympathetic consideration given in the course of the hearing to any problems which the lateness of the discovery might cause Mr Maynard.