United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 50_95_1301

Appeal No. PA/50/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 January 1995

HIS HONOUR JUDGE D LEVY QC

MR S M SPRINGER MBE

MRS M E SUNDERLAND JP

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SAVE & PROSPER GROUP LTD          APPELLANTS

MRS J BAKER JONES          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MISS D ROSE

(OF COUNSEL)

Messrs Simmons &

Simmons

Solicitors

14 Dominion Street

London EC2M 2RJ

For the Respondent MR E G McCARTHY

(SOLICITOR)

Messrs McCarthy Robertson

Solicitors

Glenbrook House

11 Molesey Road

Hersham

Walton-on-Thames

Surrey KT12 4RH


 


JUDGE LEVY QC: When we sat this afternoon we were asked to take as a matter of emergency, an application from Save & Prosper Group Ltd ("the Company") in respect of an Interlocutory Order made by the Industrial Tribunal Chairman sitting alone in Bristol on 17 November 1994 where, in one part of the Order, an Order was made for discovery by the Company in Mrs J Baker Jones's application for relief for unfair dismissal, sexual discrimination having been alleged.

It was not entirely clear to us when we started sitting whether what we were to rule on was the Order for Discovery or whether what we were asked to rule on was a refusal by the Industrial Tribunal to postone an interlocutory hearing fixed on 16 January which was to be on the basis that the Discovery Order had not been carried out.

After a short adjournment which enabled Mr McCarthy to take instructions from Mrs Baker Jones, he consented to us hearing, as a matter of urgency on its merits the Company's appeal against the Discovery Order. The material parts of the Order read:-

"IT IS ORDERED THAT:

(2) On or before Friday 2 December 1994 upon reasonable notice the respondent do produce at the office of the respondents' solicitors the documents listed below and that the applicant's solicitors be at liberty to inspect the same and take copies thereof:

"of all relevant documents to include the personal files of Mr Barry Johnson and Mr Labrow"

and that the respondents be at liberty to the respondents to apply to vary that order in respect of any specific documents in those files.*

(3) On or before Friday 2 December 1994 upon reasonable notice the respondent do produce at the office of the respondents' solicitors the documents listed below and that the applicant's solicitors be at liberty to inspect the same and take copies thereof:

"of all relevant documents" in respect of the applicant.*"

Miss Rose who appears for the Company complains that that was a wide ranging Order which the Learned Chairman was unable to make and no or no sufficient regard had been made by him to the decision of the House of Lords in Science Research Council v Nasse [1980] AC 1028. In particular Miss Rose referred us to the passage in the speech of Lord Wilberforce at page 1067 which set out what are properly discoverable documents in proceedings such as these.

Having heard Miss Rose's submissions, Mr McCarthy, who helpfully read out to us the note he had made of the Learned Chairman's Order, gratefully conceded that it could not be supported and we therefore decided that it would be appropriate to amend that Order to words which I shall give in a moment. I should say it is common ground between the parties that after the words "be at liberty to inspect the same and take copies thereof" the Order was intended to read - "the personnel files of Mr Barry Johnson and Mr Labrow and there be liberty to apply to the Respondents to vary that Order in respect of any specific documents in those files". The reasonable objection was taken to it by Miss Rose, apart from the fact that there was no date as to when the Respondents were to be at liberty to apply, was that files were ordered to be disclosed wholesale notwithstanding the guidance given by Lord Wilberforce in the passage in his speech to which I have referred.

The Order which we intend to substitute in place of that is to read as follows:

"(2) On or before Friday 2 December 1994 upon reasonable notice the Respondents do produce at the office of the Respondents' solicitors the documents listed below and the Applicant's solicitors be at liberty to inspect the same and take copies thereof namely all documents in the Respondents' possession relevant to any matter in these proceedings."

That part of the Order numbered (3) will then become redundant and should be deleted.

The appeal by the Company against the Order for discovery is allowed to this extent.

We are now asked to determine whether there should now be a hearing on Monday 16 January 1995 in Bristol when the Chairman will be asked to decide whether there has been contumelious breach of that Order for Discovery (as amended by us) by the Company. Miss Rose submits that they have in fact made proper disclosure in this action and that there is no more to disclose. On 10 January and 12 January, the learned Chairman refused to postpone that hearing.

For Mrs Baker Jones, Mr McCarthy submits that no full disclosure has been made and wish to draw the attention of a Tribunal be it us or the Chairman in Bristol as to the lacuna which they perceive in the Respondents' list.

We bear in mind that the hearing date of the application fixed for the substantial hearing of Mrs Baker Jones is February 14 in Bristol.

The hearing fixed for 16 January was originally intended to decide whether the Company's defence should be struck out for its failure to comply with that Order for Discovery which ran to an appeal.

In fact the appeal has been heard and disposed of and, in the light of Mr McCarthy's submission, we look to see therefore what was being sought before the Chairman on Monday; we find that in a letter dated 13 December a request in this form:

"Will you please ask that the matter be referred to a Chairman with the view to a direction being issued so there may be immediate compliance with the terms of paragraph 2 of the Orders made on 17 November 1994"."

As the Discovery Order has been varied on appeal, it is apparent to us that there is nothing to be heard on Monday and accordingly we will direct that the interlocutory hearing on Monday be vacated, without making any findings as to the correctness or otherwise of the Tribunal's refusal to adjourn the hearing.

In the light of the imminent hearing date, the representatives of both parties have asked us, rather than the Industrial Tribunal, if required by them, to rule on any further applications of an interlocutory matter. My colleagues have kindly agreed to sit with me on Tuesday at 9.30 am to comply with that request on the following conditions: either of the parties wishing to seek any interlocutory relief should give notice to the other party by noon on Monday as to what relief they seek; the party getting the notice must respond by 4 o'clock both to the other party and to the Court to show whether or not they are willing to comply with the Order. If anything remains in issue, the Court will adjudicate on it at 9.30 am on Tuesday. What we anticipate may be at issue is this. Mrs Baker Jones says that further specific discovery should be made by the Company. We anticipate the Company may be saying that there is no undisclosed relevant material. We are not aware at this stage of further directions which may be sought but as the hearing is on 14 February and both parties do not wish that date to be vacated, we can see the force in giving them on Tuesday am opportunity to raise, on notice, any application for interlocutory relief which is thought appropriate.