United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 157_95_2709

Appeal No. EAT/157/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 September 1995

THE HONOURABLE MR JUSTICE TUCKER

MR R SANDERSON OBE

MR K M YOUNG CBE

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MRS S WATT          APPELLANT

COUNCIL OF LEGAL EDUCATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MISS D ROSE

(of Counsel)

Stitt & Co

4 Paper Buildings

Temple

EC4Y 7HA


 


MR JUSTICE TUCKER: This is an Interlocutory Appeal from a decision of the Industrial Tribunal sitting at London North on 5 January 1995, refusing a renewed application for discovery and inspection of the final assessment scripts of students on the Bar Vocational Course in the years 1991 and 1992.

There had been a previous decision heard and promulgated in June 1994, from which there had been no appeal and in respect of which there had been no review. The Appellant, Mrs Sarah Watt, is a Bar student and the Respondents are the Council of Legal Education. By her Originating Application the Appellant alleged that she has suffered direct discrimination contrary to the Race Relations Act 1976, in that:

"a. she was failed on the Bar Vocational Course

b. she was not permitted to resit

c. the Respondents failed to take account of her mitigating circumstances in relation to two exam papers."

On the two previous hearings the Appellant had been represented by Counsel. Before us she has for reasons which she has explained, appeared in person. The Respondents have been represented throughout by Miss Dinah Rose.

The Appellant rightly acknowledged that the Industrial Tribunal had a discretion whether or not to order discovery. That places her in some difficulty since it is never easy for an Appellant to persuade an Appellant Tribunal to interfere with the exercise of a discretion. It would have to be shown that there was an error of law such as perversity. Mrs Watt submits that there was an error of law in that the Tribunal said that the evidence which might arise could not support the inference that any differential treatment of her was attributable to her race.

In anticipation of one of the grounds of opposition to her appeal, Mrs Watt referred us to the unreported decision of the Employment Appeal Tribunal given on 16 March 1995, in the case of Mr S D Tiyamiyu v London Borough of Hackney. In that case, Mr Justice Mummery, the President and the members sitting with him, dismissed the appeal on a preliminary hearing, but in the course of his judgment, Mr Justice Mummery advised the Appellant to submit a fresh application for discovery on a more limited basis to the Industrial Tribunal and said that the Appellant was not precluded from doing so.

That ground of objection was the first raised by Miss Rose. She submitted that the appeal was misconceived since the Industrial Tribunal had no power to reconsider the matter on 5 January; that it was functus officio and therefore that any decision which it made was null and void and that the decision in June 1994 remained the effective decision from which there had been no appeal.

The case of Tiyamiyu can be distinguished since, as we find, in the present case the first application for discovery had contained, as a fall-back proposition, the much more limited application subsequently made. That appears from paragraph 5(c) of the Chairman's decision on that occasion, where he recorded that:

"5(c) .... in the last resort she [the Applicant] seeks to compare her final assessments with those of other students in her tutorial group."

We were referred to the case of Casella London Ltd v Benai [1990] ICR page 215, where an analogist situation arose. In our opinion, in the present case it would have been better if the Chairman had refused to entertain the application made to him on 5 January. It is right to say that he recognised the difficulties with which he was confronted. He set out his views as to that in paragraph 6 of his decision. He was perhaps allowing himself to be over-persuaded in hearing the subsequent application, but in our opinion it was not open to him to entertain that application.

We agree that the Tribunal on that occasion was functus officio and that therefore there can be no question of any appeal arising from it.

In any event, there is equal force in our view in Miss Rose's second ground of objection to this appeal. She observes rightly, as we think, that the Appellant has not identified any error of law, it being common ground that the Tribunal had a discretion in the matter.

We were referred to the rules of procedure which make that clear and equally, it is clear that the Tribunal has a duty to refuse an application for discovery if it is of opinion that discovery is not necessary, either for disposing fairly of the action or matter or for saving costs.

It is plain to us, as Miss Rose submitted, that the Tribunal concluded that this was a fishing expedition on the part of the Applicant; that is correct in our opinion. What the Appellant seeks is discovery of selected examination scripts so that she can make her case. That much appears from paragraph 3 of the grounds of her appeal which is in these terms.

"3. The purpose of the application was to enable the applicant to consider (with the assistance of expert evidence) how well the applicant had done in comparison with white candidates."

We are influenced, indeed, bound by the decision of the Court of Appeal in the case of British Aerospace plc v Green & Others [1995] IRLR 433, and we would cite the passage in the judgment of Lord Justice Millett contained in paragraph 19 of the report at page 438 where the learned Lord Justice said this:

"19 As in other litigation, discovery is limited to documents which are relevant to an issue in the case. It is not ordered in order to enable the claimant to discover whether there is an issue which he can raise. Accordingly, an applicant who alleges that the selection process was unfairly applied in practice and who seeks an order for discovery must specify the respect in which he claims that the process was unfairly applied with sufficient particularity to demonstrate the relevance of the material the discovery of which is sought. He is not entitled to say: `The process was unfair: I do not know in what respect it was unfair: I want discovery in order to find out.'"

In our opinion those observations cover the present situation. We were, in the course of argument, referred to the case of Perera v Civil Service Commission [1980] ICR 699, but there are distinctions between that case and the present, in that Perera was concerned with selection of candidates for the formation of a short list, whereas the present case concerns the marking of examination papers where no selection process was involved.

Accordingly, for those two reasons, we have come to the conclusion that this appeal must be dismissed.