United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 401_95_0505

Appeal No. EAT/401/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th May 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR K M HACK JP

MR P SMITH

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MR M Y PASHA          APPELLANT

DEPARTMENT OF SOCIAL SECURITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant DR A GHAFFAR

(Lay Representative)

For the Respondents MR M WILSON

(of Counsel)


 


MR JUSTICE MUMMERY (PRESIDENT): This is an Appeal by Mr Pasha against the decision of the Industrial Tribunal held at London (North). The proceedings (there are three sets of them), have been brought by Mr Pasha against the Department of Social Security alleging Racial Discrimination.

The Full Hearing on the merits was due to start on 24th April 1995. Discovery in the proceedings had been initially dealt with by an application and an order contained in a letter of 23rd September 1994. That order was complied with. An application was then made to the Tribunal by Dr Ghaffar, who represents Mr Pasha, for further discovery. That letter of application was dated 20th March 1995, just over a month before the date when the hearing was to start. The response of the Chairman in a letter of 4th April 1995 was that Dr Ghaffar should, in the first instance, seek to have the documents by direct request from the Department. He was told that the application could be renewed for an order, if the Department did not comply with the request. The request was made in a letter of 12th April 1995. The Department refused discovery of the documents requested. In consequence, Dr Ghaffar made the application for the order to the Tribunal. The Tribunal Chairman wrote through the Regional Secretary of 21st April 1995, informing Dr Ghaffar that the Chairman had refused the request for the order and that the hearing would proceed on 24th April 1995.

Another letter, sent on same day, said this:

"The Chairman who refused the Applicant's representative's request for an order for discovery of documents has directed that the Full Merits Hearing will proceed on 24 April 1995.

It is open to either party to raise any procedural point at the commencement of the hearing."

On 24th April 1995 a letter was sent to the parties, informing them that the case had been adjourned till 26th April 1995. The Chairman requested that the Applicant should attend.

Unfortunately, the hearing has been vacated because of this Appeal seeking to reverse the Chairman's decision refusing to order further discovery of the documents.

On the hearing of the Appeal, Dr Ghaffar has made submissions on behalf of Mr Pasha. Mr Wilson has made submissions on behalf of the Department.

In our view, the Appeal is misconceived.

It is clear from the Rules, which govern the procedure at Industrial Tribunal that a Tribunal on the application of a party or of its own motion has a discretion in relation to discovery of documents. It has powers to order discovery or inspection of documents, such as the County Court has. That means that there is a power to order documents which are relevant and necessary for fairly disposing of the issues between the parties.

It is a discretion which can only be challenged on an Appeal if it is demonstrated that the discretion has been exercised in contrary to a principle of law, or perversely, such as by regard to irrelevant matters or disregard of relevant matters.

It is also important to bear in mind that it is an order that can be made at any time that the Tribunal considers it appropriate to make, including the hearing of the application on the merits. That is clear from Rule 4.

In this case, the Appeal is misconceived, because it is unnecessary, premature and hypothetical. It is made clear in the documents referred to that the appropriate way in which any discontent with the Chairman's refusal to make the order should be dealt with was by renewing the application before the Full Tribunal at the start of the hearing on 24th April 1995. Instead of doing that, Dr Ghaffar pursued the matter to the Employment Appeal Tribunal.

There is no ground for this Appeal, because there is no demonstrated error of law in the way that the Chairman exercised his discretion to refuse to make the order or to say that the matter could dealt with along with any other procedural matters at the hearing. If that had been done, and the request for the discovery had been granted, there would be nothing for Mr Pasha to appeal about. If the request had been refused and the hearing on the merits had then continued and concluded in Mr Pasha'a favour, there would be nothing to appeal about. That is why this appeal is premature and unnecessary.

In these circumstances, we shall dismiss the Appeal.

We add this. It is unfortunate that the case has been conducted in such a way that the hearing, fixed for 24th April - 27th April 1995, has been adjourned in order to await the outcome of a hopeless appeal.

We are in complete agreement with the way in which the Department has responded to this Appeal, in the skeleton arguments submitted by Mr Wilson. He rightly points out, as already mentioned, that on a Appeal to this Tribunal, an interlocutory decision can only be interfered with on limited grounds, because it is a discretionary matter, see Rule 4 and Rule 13 which provides that the tribunal determines its own procedure. It is very rare for this tribunal, on an appeal, to interfere with an interlocutory decision.

Mr Wilson referred correctly to the rules that govern discovery, and the principles in accordance with which they are applied.

In our view, there is no error of law in this decision of the Chairman. The Appeal should never have been brought. It is therefore dismissed.

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An application for costs has been made by Mr Wilson on behalf of the Department. The application is made under Rule 34 of the Employment Appeal Tribunal Rules 1993 that provides:

"34.-(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."

Sub-rule (2) provides that the Appeal Tribunal may assess the sum to be paid or may direct that it he asses by the taxing officer. In Mr Wilson's submission, this appeal was unnecessary, improper, vexatious or it was unreasonable to bring it. He gives us an estimate of the costs incurred on this Appeal as £150.00.

Dr Ghaffar opposes the application. He says that there was a point of law on this appeal. Therefore he was justified in bringing it.

The point of law which he said he had and which he sought to develop was in fact based on a misunderstanding of one sentence in one paragraph of Lord Scarman's speech in the case Science Research Council v. Nasse [1979] ICR 921. The point which Dr Ghaffar made to us a number of times was that, according to Lord Scarman, a question of discovery should be determined before the start of the tribunal hearing. This is a misunderstanding of the comments of Lord Scarman on page 953 Science Research Council v. Nasse [1979] ICR 921 at 953:

" ... The inspection should be before the hearing takes place, so that the applicant may consider any [documents] that are produced."

It was misconceived on the part of Dr Ghaffar to say that that is a point of law relevant in this case. That issue was concerned with inspection, not with discovery, and a claim of objection to inspection on the grounds of confidentiality. The Appeal in this case is concerned with the refusal to order discovery of the documents in the first place.

Secondly it is a misunderstanding that that lays down a universal rule. The final sentence of Lord Scarman's speech makes its clear:

"... the tribunal retains the power to order the production of further documents at a later stage (including at the hearing itself if in its judgment it becomes necessary to do so in the interests of justice."

There was not a point of law in that passage, or in any other part of Mr Pasha's appeal. In our view this is an appropriate case in which to order an unsuccessful appellant to pay the costs for bringing an unnecessary appeal. Will order the Appellant, Mr Pasha to pay £150.00 costs to the Department.

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Leave to appeal to the Court of Appeal is refused. There is no point of law.

I say this, Dr Ghaffar about the case. If cases are conducted in such a way as to incur unnecessary expense and to cause unnecessary adjournments, the consequence may well be further orders for costs are made by the appropriate Tribunal.

It is not for us to say what the Industrial Tribunal will do. But it is most undesirable that cases which have been fixed for three or four day hearings should have to be adjourned because of late minute applications for interlocutory orders, which can when they are made late, be more properly dealt with at the hearing on the merits than as the subject of an appeal to this Tribunal.

We would ask you earnestly to have regard to your clients' interests and, in particular, to the costs implications of the various steps you are taking. It is for you to decide the

best steps to take in the interests of your client, but please do have regard to the delays and costs implications of making the sort of applications and appeals you have in this case. The order is that the Appeal is dismissed, with an order of £150.00 costs.