United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/1994/266_92_0612.html
Cite as: [1994] UKEAT 266_92_612, [1994] UKEAT 266_92_0612

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BAILII case number: [1994] UKEAT 266_92_0612

Appeal No. EAT/266/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6th December 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(IN CHAMBERS)

MR D C D'SOUZA APPELLANT

LONDON BOROUGH OF LAMBETH RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant (In Person)

MR JUSTICE MUMMERY (PRESIDENT): This is a further Hearing for Directions in an Appeal by Mr D'Souza against a Decision of the Industrial Tribunal held at London (South).

The matter was originally before me for directions in June 1994. On that occasion, in Appeal No. EAT/266/92, I made orders relating to the amendment of the Notice of Appeal, for the filing of an Affidavit in support of the amendments and for the filing by the Appellant with the Appeal Tribunal of copies of six Industrial Tribunal Decisions and other documents, which he considers relevant to his case. Those provisions of the Order of the 7th June have not caused any difficulty. The principle difficulty is with the third item in which I ordered that Mr D'Souza was to notify the Respondents, the London Borough of Lambeth, of any documents which they may have, which Mr D'Souza considered relevant to his Appeal. I ordered that such documents were to be copied to the Appellant and the Employment Appeal Tribunal.

The difficulty has arisen in this way. The solicitors for the London Borough of Lambeth, Clifford Chance, have been instructed by their clients that they are unwilling to incur photocopying charges which they estimate would amount to £200. They object, in the strongest terms, to bearing that liability, in respect of the documents which they submit they have previously provided for the Bundle to be placed before the Industrial Tribunal and the Appeal Tribunal. They request that the Tribunal makes an appropriate order requiring Mr D'Souza to pay for such photocopying charges, if he wishes further copies of the documentation, which they say, he has already received.

Rather than incur yet further costs by an oral submission to the Tribunal today, Clifford Chance have enclosed a Skeleton Argument and copies of correspondence. In the Skeleton Argument, they refer to the Order of the 7th June, already quoted. They refer to the letter in which Mr D'Souza requested them to provide the documents. They contend that Mr D'Souza was originally provided with copies of most of the documents in advance of the Industrial Tribunal case which commenced on the 31st October 1988. Further documents, they contend, were handed to Mr D'Souza during the course of the Hearing.

When that case was appealed to the Employment Appeal Tribunal, they prepared bundles, and agreed them with the representatives of Mr D'Souza, then Messrs Karim. The cost of preparation was to be shared equally between the parties. Two copies of the bundles were delivered to the solicitors, on the 28th June 1991, but they have not been reimbursed by Mr D'Souza in respect of his share of the costs of those bundles.

The EAT remitted that case for a re-hearing. Clifford Chance prepared bundles and sent copies to the solicitors. That was in January 1992. It is their case that Mr D'Souza and his former solicitors have already received copies of the documents to which the order related.

They point out that in another Industrial Tribunal case between the same parties, the Commission for Racial Equality, who were representing Mr D'Souza, informed Clifford Chance that the solicitors had no documents in their possession, since they passed them all on to Mr D'Souza.

Further, in letters which are passed between the parties in August this year, Clifford Chance have expressed a willingness to provide Mr D'Souza with further copies of the bundles, provided that he agrees to pay the photocopying charges. They contend that, in the circumstances, he should be responsible for the copying of the documents he has requested. Mr D'Souza's case is that it is a burden on him to have to pay £200 for copying charges. He says that an oral agreement was made at an earlier stage that they would provide him with copies. I can understand the difficulty of paying as much as £200 to have copies of documents, and why Mr D'Souza feels that these documents should be provided. The order, however, simply provided that the documents were to be copied to him and the Tribunal. I did not specify anything about copying charges. The position, in those circumstances, is the normal practice. The normal practice is that if you wish to have a copy provided to you, then you must make a proper payment for the cost of labour and materials involved in making the copies.

In relation to this part of the Application I provide, by way of further order, that Mr D'Souza makes a payment to Clifford Chance, of any reasonable charges for copying documents which he requires. Alternatively, if Clifford Chance are willing, they should allow him to borrow the documents to be copied at his own expense. If there is any difficulty about working out the arrangements for this, then an application can be made to the Tribunal. It should be possible for Clifford Chance and Mr D'Souza to come to an arrangement under which he pays either the reasonable costs of them making the copies, or they allow him to borrow the copies for him to make photocopies at his own expense. Either way, it is only right that Mr D'Souza should bear the cost of copying documents which he requires for his appeal.

As to the existence of an oral agreement to provide him with copies, I am not in a position to decide on whether there was such an agreement or not. There is no evidence before the Tribunal on this. If there was an agreement at some stage, that Clifford Chance would provide him with copies free of charge, then he would have grounds for seeking to recover from them any money which he subsequently paid. The immediate problem is, obtaining the documents for use on the appeal. Mr D'Souza will have to pay for that one way or another in the first instance.

The other two parts of Mr D'Souza's application are concerned with documents. I do not appreciate, at the moment, the relevance of these documents to points of law on the appeal. The Tribunal can only fully appraise the situation when the appeal is presented.

I propose that, if Mr D'Souza wishes to adduce yet further documents on the appeal in relation, for example, to alleged procedural irregularities by the Tribunal, he must ask the Tribunal hearing the Appeal for leave to adduce those documents. There will then be a chance to the Respondents, if they so wish, to oppose the bringing forward of documents that were not before the Industrial Tribunal. The Tribunal hearing the Appeal can then decide whether it is right to admit, on the Appeals stage, the additional documents.

The third point concerns documents which Mr D'Souza is seeking from the Industrial Tribunal. We have written letters to the Industrial Tribunal in relation to this. He has shown me letters addressed to London (South) on the 23rd, 25th and 26th November. Having read those letters and the reply of the 29th November, from the Regional office at London (South), I do not think it necessary for me to make any order. It is a matter of Mr D'Souza seeking to obtain from the office any documents by means of his own efforts. The Tribunal said in the letter of the 29th November that they were unable to identify what documents Mr D'Souza was referring to. The Regional Chairman stated that she believed that all the documents had been returned to the parties who submitted them. The letter went on to say that, if a document was referred to at the hearing, he may have already made a copy of it, and if he had mislaid that, then he should ask the Respondents for a copy.

The documents were a matter on which the Tribunal were unable to offer assistance.

On that aspect of the case, I suggest that Mr D'Souza goes to London (South) and identifies to them the particular documents, which he is claiming they still have, and which he claims he needs for the appeal.

I therefore make no order in relation to any further documents. If Mr D'Souza wishes to bring forward further documents on the appeal, he must first obtain them, either from Clifford Chance by paying photocopying charges, or copying them at his own expense, or he must obtain them from the Industrial Tribunal by his own efforts, and then he must seek leave from Tribunal which hears the appeal, for leave to adduce the documents.

I add, that at present, I fail to see the need for any large amount of documentation on the appeal. As I have already explained to Mr D'Souza it is limited to points of law. I repeat that this Tribunal is not an Industrial Tribunal re-hearing cases which have already been heard with documents and oral evidence. This is an Appeal Tribunal. Its jurisdiction is limited to Appeals on questions of law: that is, the interpretation of legislation, and the proper application of it to the facts of the case.

In the circumstances, the only order is that, in respect of any documents to be supplied by the Respondents through Clifford Chance, Mr D'Souza is either to pay Clifford Chance reasonable copying charges, or he is to be free to borrow their documents for him to copy at his expense.