United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 774_95_0610

Appeal No. EAT/774/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 October 1995

Before

THE HONOURABLE MR JUSTICE MAURICE KAY

MR J A SCOULLER

MR A D TUFFIN CBE

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MR A TOTH          APPELLANT

(1) ICESPORT LTD

(2) MRS P AUGER          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the 1st and 2nd Respondents MR C HENNEY

(Solicitor)

Messrs Henmans

Solicitors

116 St Aldates

Oxford

OX1 1HA

For the 3rd Respondent NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE

RESPONDENT


 


MR JUSTICE MAURICE KAY: The proceedings which have given rise to this appeal began with an Originating Application by Mr Toth to the Industrial Tribunal, in which he made various complaints including breach of contract; the right to receive an itemised pay statement; sickness pay; unfair dismissal; and the right to receive written reasons for dismissal and particulars of his employment. That application was received by the Industrial Tribunal in May of this year, and on 31 May of this year, Mr Toth wrote to the Tribunal in Reading, formally asking for an order:

" .... for disclosure of documents currently held by Mr Wallis of The Employment Service ... and Mr Anthony Harris of Critchleys ...."

In due course, and as part of on-going correspondence between Mr Toth and the Tribunal at Reading, Miss Pickett of the Tribunal office, wrote three letters to Mr Toth. The first is dated 2 June 1995 and the relevant paragraph states that Miss Pickett was directed to advise Mr Toth that the Tribunal Chairman refused his request for an order for discovery. It went on to say that the Chairman had no power to order discovery against a non-party.

On 9 June 1995, in response to a request to review the decision, Miss Pickett notified Mr Toth that the Chairman was not minded to vary his decision and the letter went on to advise that there was no reason why the Manager of the Employment Service should not be called as a witness, under a witness order if necessary, and be asked to produce the documents at the hearing.

Finally, a letter of 5 July 1995, indicated that the Chairman had made an order for discovery against the Respondent and went on to deal with the second matter that is now raised in this appeal.

It follows from what we have said that the first matter is to do with disclosure of documents. The second matter relates to the representation of the Respondents. Following the Originating Application, a firm of Solicitors, Messrs Simms & Co., filed a document headed "Notice of Appearance by Respondent", apparently on behalf of all three Respondents. This concerned Mr Toth who objected to the Tribunal about the involvement of Messrs Simms & Co., asserting that there was a possible conflict of interest and that that firm ought not to be involved as representatives in the proceedings.

In the letter of 5 July, to which we have referred, Miss Pickett, answering on behalf of the Chairman, stated that the Tribunal had no power to influence the parties' choice of representative, and that any question of a possible conflict of interest is a matter for the professional judgment of the Solicitors concerned. She was able to inform Mr Toth, at that time, that Messrs Simms & Co had written to the Tribunal confirming that a firm of Chartered Accountants would, in fact, be representing Gosport Leisure Ltd.

These three letters containing interlocutory decisions of the Tribunal are the substance of what Mr Toth now seeks to raise in this Tribunal. His Notice of Appeal dated 24 July refers to those three documents and only those three documents, as the decisions against which he seeks to appeal. We have to deal with the two areas of appeal separately.

We deal first with the question of discovery. We have considered the regulations that govern procedure in Industrial Tribunals and it seems to us quite clear that the approach of the Industrial Tribunal Chairman was correct in law. There is no power to order discovery by a non-party. There is a power to order a non-party to attend as a witness and to bring documents to the hearing. That is what has been ordered so far as Mr Wallace at the Employment Service is concerned. We are told by Mr Toth that Mr Wallace has indicated that the Employment Service does not wish to comply with the order. The answer to that must be that there is a procedure in the Industrial Tribunal whereby the Employment Service can seek to set aside the order, and on any such application, both the Employment Service and Mr Toth would be able to present arguments to the Tribunal who would make the appropriate ruling. In any event, it is not a matter for us to further consider here.

It became apparent in the course of his submissions, that Mr Toth is also concerned about documentation held by other third parties, not presently the subject of this appeal. We have advised Mr Toth that in relation to any such third parties, the position would be precisely the same as with the Employment Service. He can seek orders.

If there is a final refusal of such an order, he can appeal against such a refusal, but there is no such appeal before us today; and if there are problems with securing compliance with the order, or the person named in the order indicates a wish to set it aside, these are matters that can be resolved by the Industrial Tribunal. They are not matters for us, and certainly not matters for us today.

In the course of his submissions and in his Notice of Appeal, Mr Toth has submitted that the Tribunal had a power to order discovery by a non-party as a result of the decision of the House of Lords in Norwich Pharmacal Co v Customs & Excise Commissioners [1974] AC 133. We have considered this authority. It is clear to us that it not authority for the proposition advanced by Mr Toth.

What the Norwich Pharmacal case enables is a separate action against a non-party based on the enforcement of a common law right to documentation, which if such action is successful, can then be used in other proceedings against the real opponent in the dispute. In that case it was an action alleging infringement of a patent that Norwich Pharmacal had in mind. They commenced totally separate proceedings against the Customs & Excise Commissioners in order to obtain an order for documents for use in the patent infringement action and what the House of Lords there clarified was the existence of a right to pursue such proceedings in appropriate circumstances. That has no bearing on the circumstances which exist before us today.

It follows from what we have said that it is quite clear that Mr Toth's appeal in relation to discovery and documentary matters does not raise any point of law with which we can deal. We should add that we have learnt in the course of the hearing, that there are issues between the parties as to whether or not Mr Toth was qualified to make a claim for unfair dismissal by reason of the two-year qualification period, and whether or not his application was made in time in any event.

Of course, it does not follow that if he was disqualified by reason of the two-year rule in relation to unfair dismissal, that he would be disqualified in respect of all his other claims. However, the fact that these issues exist has caused the Industrial Tribunal, with the agreement of the parties, to take steps to arrange a preliminary hearing to deal with those issues, and no doubt any other issues that can be disposed of at that stage.

It seems to us that the interests of all parties are in that hearing taking place, as soon as possible, so that these matters can be clarified. To the extent that Mr Toth requires witnesses or documents on the preliminary issues, then he must of course take steps through the Tribunal to obtain and enforce such orders as he can, and if he wishes to appeal any final decisions then of course he can appeal here. But it does seem to us that his best interests lie in getting this matter to a preliminary hearing as soon as possible.

The second matter raised by this appeal relates to the involvement of Messrs Simms and Co as Solicitors for one or more of the Respondents. They are the authors of the Notice of Appearance filed on behalf of all. It seems that Mr Toth has secured acceptance that they had no authority to act on behalf of the third Respondent, which is a company in liquidation and now seems to be acting through its liquidator, Mr Harris, although he has not entered a separate Notice of Appearance as such.

The ground of appeal, so far as this issue is concerned, is quite specific. It is an appeal against the decision notified in the letter of 5 July, whereby the Tribunal indicated that it had no power to influence the parties' choice of representative.

As events have turned out, this is no longer a live issue between the parties because another firm of Solicitors, Messrs Henmans, now represent the first and second Respondents and Messrs Simms & Co no longer suggest that they are representing the third Respondent. To that extent the matter is, at this stage, somewhat academic. However, we should indicate that in our judgment the approach of the Industrial Tribunal was entirely correct in law. In our judgment they did not have the power to take steps to order a change of representation.

Mr Toth has told us of the steps that he has taken to report that firm to their professional body. He is entitled to do that and no doubt his complaint will be dealt with under the appropriate procedures. They are not matters for us, in any way, and we make no comment about them one way or the other. Indeed, we have no factual information upon which to do so, merely some oral assertions made by Mr Toth in the absence of that firm today.

It follows from all this, that the appeal from the Industrial Tribunal, in respect of the decisions conveyed in the three letters to which I have referred, is dismissed.