United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1195_94_2202

Appeal No. EAT/1195/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 February 1995

HIS HONOUR JUDGE D M LEVY QC

MISS J W COLLERSON

MRS T MARSLAND

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MR C JOHNSON          APPELLANT

RUSHMOOR BOROUGH COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MR G STOKES

(Of Counsel)

ON BEHALF OF THE RESPONDENTS


 


JUDGE LEVY QC: This is an interlocutory appeal by Mr C.R. Johnson who has commenced proceedings in the Southampton Industrial Tribunal against the Rushmoor Borough Council ("the Council"). His Originating Application is not before us, but we know that in the course of preparation for the case he wished certain witnesses to attend the hearing. Among the witnesses he wished to attend was a Mr Richard Hyde of 9 Honister Walk, Camberley, Surrey. He made an application to the Tribunal for a witness order requiring Mr Hyde's attendance.

On 14 October 1994 the Tribunal made an order requiring Mr Hyde to attend. On 18 October Mr Hyde wrote a letter to the Industrial Tribunal marked "Strictly Confidential" requesting that the order should be set aside. On 25 October, Miss Tier the Regional Secretary of the Tribunals, wrote to Mr Johnson saying that the Chairman had revoked the witness order.

From that decision Mr Johnson appeals to this Tribunal. This morning we have Mr Johnson in person appearing and Mr Stoker for the Rushmoor Borough Council. Mr Stoker has, very helpfully, drawn our attention to the Industrial Rules (Constitution and Rules of Procedure) Regulations 1993 and to the appropriate rule about witness orders. The appropriate rule is Rule 4. Rule 4(2) reads:

"(2) A tribunal may, on the application of a party ....

(a) require the attendance of any person, including a party, wherever such a person may be within Great Britain, ....

and may appoint the time and place at which the person is to attend and, where appropriate, the time at or within which and the place at which any such document is to be produced".

It is clear that the order made to Mr Hyde to attend was made pursuant to that rule.

Sub-rule 5 of Rule 4 reads:

"(5) Where a requirement has been imposed under paragraph .... (2) ....

(a) ....

(b) on a person other than the party (and this would of course apply to Mr Hyde)

that party or person may make an application to the tribunal to vary or to set aside the requirement by notice to the Secretary given before the time at which or, as the case may be, the expiration of the time within which the requirement is to be complied with; and the Secretary shall give notice of the application to each party or, where applicable, to each party other than the party making the application".

Clearly, what the rule envisage is, in this case was Mr Hyde's unwillingness to attend should have been notified to Mr Johnson and impliedly there should have been a hearing before the Chairman or the appropriate party to the Industrial Tribunal at which Mr Johnson and Mr Hyde would have the opportunity to be heard so that the Tribunal could rule on Mr Hyde's application to have the witness summons dismissed.

There is a little authority to which we have been referred, which gives us some help in the matter and that is the case of Dada v Metal Box Co Ltd, [1974] NIR 559). That case was determined before Industrial Tribunals as we have them now were in place, but the same principles apply. There is a passage in the judgment of the Master of the Rolls, Sir John Donaldson at page 563 letter D which reads as follows:

"We are quite clear that tribunals have a discretion in deciding whether or not to issue witness orders. There is no automatic right to witness orders. But that discretion must be exercised judicially and it must be exercised with due regard to the fact that a tribunal is dealing with litigants in person who may not have the benefit of any advice.

It seems to the court that there are only two matters of which tribunals should be satisfied before they issue a witness order. The first is that the witness prima facie can give evidence which is relevant to issues in dispute. For that purpose they will no doubt wish to ask the applicant what evidence can be given by the person who is the proposed subject of the witness order. We do not suggest that the tribunal should ask the applicant to give a full proof of that evidence, but applicants should indicate the subject matter of the evidence and show the extent to which it is relevant. The second matter of which the tribunal should be satisfied is that it is necessary to issue a witness order. In the present case the tribunal seem to have taken the view that it would wrong, indeed, in their letter of March 11, 1974, they say that it would not be possible, to issue a witness order, unless they could be satisfied that the person concerned was unwilling to attend voluntarily. We think this policy is erroneous to the point of amounting to an error of law".

It seems to us that quite clearly here, the Industrial Tribunal issued a witness order without asking the questions which the Master of the Rolls suggested should be asked of an applicant. An order having been made, it seems to us that the order should not be revoked until there is some form of enquiry as to whether it is appropriate to revoke it or not. The decision should of course be made judicially.

In the circumstances of this case, it seems to us that it would be appropriate for us now to discharge the order revoking the witness order and leave it to the Industrial Tribunal to consider what steps it should now take to decide whether, in fact, Mr Hyde is required to give evidence in the forthcoming hearing of Mr Johnson's application.

We should add that a further application had been made for another witness to attend, a Mr Lillywhite. That witness indicated to the Industrial Tribunal an inability to attend on a certain date and on hearing from him thus, the Industrial Tribunal discharged the witness order. That appears to us, also, to be an irregularity. If there is a date on which a witness cannot attend, it is made known to a Tribunal. Ordinarily, one would expect a Tribunal to rearrange its affairs so as to accommodate the witness if his presence is necessary.

In the case of Mr Lillywhite there seems to be no unwillingness of the witness to come, but there seems to have been no enquiries to the relevant evidence which he would give. We will revoke the order discharging the witness order and leave it to the Tribunal to consider what steps, if any, it should now take as regards Mr Lillywhite's attendance.

To that extent, this appeal is allowed. We would wish to thank Mr Stoker and Mr Johnson for their assistance during the hearing.