United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR KIBLING (of Counsel) Messrs Hodge Jones & Allen Solicitors 148-150 Camden High Street London NW1 ONE
For the Respondent	MR LEMON (of Counsel) Messrs Steele Raymond Solicitors Vandall House Post Office Road Bournemouth BH1 1BX


 


MR JUSTICE LINDSAY: We have before us an appeal by Mr A.Badii, who was the Applicant below, against the order made by the Chairman sitting alone, Mr. S.J.W. Scott, on 25 September 1996 in the matter between Mr Badii and four Respondents: (1) Bournemouth University, (2) Mr D Gibson, (3) Mr M. Riordan and (4) Professor Slater.

There were various directions given by that order which emerged from a hearing of some four hours length on 25 September and the paragraphs that are most important for us to consider are these. Paragraphs 4 and 5:

"4. On or before 13 November 1996 the Applicant shall send to the Respondents' solicitors signed written statements of all oral evidence he intends to adduce at the hearing.

5. On or before 4 December 1996 the Respondents shall send to the Applicant signed written statements of all oral evidence they intend to adduce at the hearing."

There were other provisions as well and the matter was listed for three days to be heard on 7, 8 and 9 January 1997.

Notwithstanding that a mere appeal does not operate to work a stay without special provision, the parties informally have in practice abandoned the provisions in the sense that, although 13 November and 4 December have passed, no written statements from either side have been exchanged and, in practical terms, the dates of 7, 8 and 9 January 1997 are now not sustainable as dates upon which a proper hearing could proceed.

It is necessary in this matter to consider, to some extent, the procedural background, because it could well be that the Chairman on 25 September would have decided otherwise than he did had the history not been as it is.

The history began with not the usual form of IT1, an Originating Application, but a letter from Mr Badii, the Applicant, on 30 November 1995, a one-page letter that raised the subject of racial discrimination, but raised it in a very broad and unparticularised manner. Hardly surprisingly, on 26 January 1996 the Respondent indicated that detail was required before they could answer the allegations, and on 13 February 1996 an order was made in the Industrial Tribunal that the Applicant should supply particulars. They were specified there under five different headings. The order provided that those particulars should be supplied on or before 28 February.

There was no appeal against that order but it was not complied with and accordingly the Respondent sought an "unless" order and on 19 March the Industrial Tribunal made such an order in the Respondent's favour. The order recited that the Applicant had failed to comply with the order of 13 February; they required him to comply with it on or before 29 March 1996 and they provided that if he did not the application should be struck out and, unusually in this jurisdiction, they provided that the Applicant should pay to the Respondent, in respect of the costs of that day, £300 plus VAT. So the deadline was 29 March 1996.

On 29 March, by fax, and, we are told, only shortly if at all before midnight and certainly well after the close of offices, a purported compliance with the order was received by the Respondents that consisted of some seven pages with paragraphs that were unnumbered; they range over a considerable variety of subjects.

Once they had got that, the Respondents were required to put in an IT3, a Notice of Appearance, which they did and they raised a request later for further and better particulars, notwithstanding that they had received the seven pages on 29 March. Their request for further and better particulars was on 24 September and sets out in some detail particulars which the Respondents claimed were necessary for the convenient conduct of the case. Then, on 25 September came the hearing which I have summarised previously and the order to which I have already referred. Mr Badii was then in person.

On 6 November 1996 a Notice of Appeal was put in by Mr Badii which, as then framed, related only to the fact that the witness statements thereby required were required in sequence rather than simultaneously. However, since then, and by amendment for which leave was given today, Mr Kibling, who now appears for Mr Badii, raises the question of whether written witness statements can be ordered at all, let alone whether or not they could or should have been ordered sequentially. That, I think, suffices for the procedural background to the matter.

Something ought to be said, I think, of the High Court position, so that one can have in mind what, at any rate in that jurisdiction, is seen to be not unfair and is seen there to be possible, as a matter of order. Exchange of witness statements is provided for in order 38, Rule 2A(2) and (3) which say that:

"(2) At the summons for directions in an action commenced by writ the Court shall direct every party to serve on the other parties, within 14 weeks (or such other period as the Court may specify) of the hearing of the summons and on such terms as the Court may specify, written statements of the oral evidence which the party intends to adduce on any issues of fact to be decided at the trial.

(3) Directions under paragraph (2) or (17) may make different provision with regard to different issues of fact or different witnesses"

So that the process is seen to be one that can be varied to meet the particular circumstances of the particular case.

Statements under the rule are by 38/2A (4)(c) provided to be exchanged simultaneously, but rule 38/2A(17) says:

"(17) The Court shall have power to vary or override any of the provisions of this rule (except paragraphs (1), (8) and (12) to (16) and to give such alternative directions as it thinks fit."

So, again, there is power to override the ordinary provision of simultaneous exchange should it be thought fit and in the White Book there is a passage against the side-note 38/2A/4 that says:

" ... This general rule of practice may no doubt be subject to variation according to the special circumstance of any particular case, but always the paramount consideration will be to maintain fairness and impartiality. It will be in very special circumstances that the Court will give a direction, not for the simultaneous exchange of witnesses' statements by the parties, but for the sequential service by one party on the other of his witnesses' statements to be followed at a later date by the service by that other party of his witnesses' statement (see Kirkup v British Rail Engineering Ltd [1983] 1WLR 1165 ... and Mercer v Chief Constable of Lancashire [1991] 1WLR 367 C.A.)"

So there is a discretion to be judicially exercised in the High Court, so far as concerns High Court cases, to have a sequential sequence rather than a simultaneous one, should that be desirable on the facts of the particular case. So much for the High Court position and for the procedural background.

Mr Kibling's first point is one that goes straight to jurisdiction. I think it is important here to be sure of what we are not deciding. We are not giving some general approval or some general disapproval as to witness statements generally. We are asking ourselves at this stage only this question: "Did the Industrial Tribunal have jurisdiction (in each case, of course, in advance of the hearing) to order any witness statements and to order sequential witness statements?

The argument of the parties has ranged quite widely, but has mostly focused on the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule 1, Rule 13 and Rule 16 although Rule 4, Rule 8(5) and Rule 9 (as to the conduct of the hearing itself) have been touched on. Rule 13(1) begins as follows:

"Subject to the provisions of these rules, a tribunal may regulate its own procedure."

And Rule 16(1) says:

"A tribunal may at any time, on the application of a party or of its own motion, give directions on any matter arising in connection with the proceedings."

On the face of things these are very wide powers, which, on the face of things, would authorise not only the making of an order for exchange of witness statements ahead of the hearing but also an order for sequential witness statements.

It cannot be said there is anything intrinsically unfair about sequence as opposed to simultaneousness. It is a common experience in all forms of courts that evidence is given in sequence with the plaintiff going first and, generally, also, going last. Those with experience in Chancery in particular perhaps might recognise that notices of motion, for example, time after time are fought out with the evidence in writing being first of all provided ahead of the hearing by the Applicant, with the Respondent being put on a timetable by which he has to file his evidence in answer by a certain date and in which, thereafter, the Applicant is given leave to file evidence in reply if so advised by such and such a date. There is nothing intrinsically unfair about evidence being given in sequence and, indeed, there is a school of thought that might support the view that it is the least wasteful way of providing evidence in the sense that the respondent knows what the applicant has said and therefore knows precisely what it is that he has to answer. Equally, in reply the applicant knows precisely what has so far been said and where he must direct his fire power. Many an applicant would choose to provide the evidence in support of his case in advance and in writing; it provides a way in which his evidence-in-chief comes out as he expects it will, which is not always the case when it is given orally.

Despite those practical considerations, Mr Kibling mounts an argument that the rules in the Industrial Tribunal do not permit either witness statements generally or witness statements in sequence. He makes the point that Rule 4 in the rules is the proper place where one might expect provision on interlocutory matters and that within that Rule 4 nothing is said on witness statements. It is hard to complain as to that; Rule 4 undoubtedly deals with interlocutory matters and there is nothing in it on witness statements. But Rule 4 is particularly directed to the subjects of further and better particulars, the attendance of witnesses and discovery and so, one might well say, one would not expect provision as to witness statements there. We see no significance in Rule 4 being silent on the subject of witness statements.

We do not see anything, either, in the argument that a wide construction being given to rule 13(1) or Rule 16(1) in any way makes otiose the provisions of Rule 4 or, indeed, provisions of any other rule. Wise men have found out, over time, that however much one makes particular rules for particular foreseeable needs, there are always some needs that are unforeseen and which yet arise, and one thus needs to have a sweeper up, a sweeper-up rule such as Rule 13(1) alone or coupled with Rule 16(1), to enable a tribunal to meet as appropriate procedural needs not provided for in the other express rules.

Rule 13(1) begins "Subject to the provisions of these rules". It is plainly not intended to cut down other rules but to supplement them. Rule 16(1), it should be noted, does not have that same opening provision but we do not see that its omission detracts from its ability to be used widely, nor can it be said that simply because of the absence of those opening words there is anything in the argument that it makes all other rules otiose. Whether both 13(1) and 16(1) are in all respects necessary or to some extent overlap can be debated in some other case but it is to be noted that 16(1) provides for application by a party whereas 13(1) has no such express provision. The discretion, if such it is, conferred by the rules would have to be exercised judicially so nothing is gained by the argument that the jurisdiction is hopelessly wide.

Mr Kibling makes the point that when witness statements were introduced in the High Court it was done by way of statutory instrument. That is undeniably the case but the point has really no force here unless it could be shown that absent the statutory instruments or the statutory authorising power, witness statements could not have been provided for in the High Court. Moreover, it would be necessary for him to show that they could not have been provided for in the High Court even if the High Court had had an equivalent of the Rule 13 or Rule 16 which we have here. That has not been shown to us. On its own, the point that statutory instruments were used in the High Court and in the County Court does not advance the case at all.

It is notable that nothing is said to be capable of being derived from the rules of the Industrial Tribunal that indicates prohibition of witness statements; one might find nothing that specifically authorises written statements, but it is notable that nothing forbids them, which could so easily have been done had it been intended.

A Practice Direction that has been issued and the one that we have been looking at is the Industrial Tribunals Practice Direction No.1 as given by the President of the Industrial Tribunals as guidance to Chairmen and to Tribunal staff, as noted in the Butterworths Employment Law handbook, 7th Edition at paragraph 5054 et seq.

It is there said that it is not a Practice Direction in the sense of those normally issued by the courts i.e. directions to parties as to their obligations in litigation. It was reproduced there with permission to assist practitioners to be aware of the normal practice of tribunals on the matters covered and, amongst those practice directions, is paragraph 6 that says, in relation to witness statements:

"(a) Chairmen should be aware that they can allow the reading of written statements.

(b) If a Chairman does not permit reading written statements in a case, he should be prepared to give reasons if asked by a party.

(c) Guidance to parties should be on the following lines - ..."

And then there is a quotation and after that at (d) there is a provision:

"(d) Statements may be exchanged between parties prior to the hearing. It is one of the matters that might be canvassed under 3 above".

So there Chairmen are being told that the exchange of statements is a matter that might be canvassed under 3 above and 3 is headed "Direction hearings" and speaks of the directions that can be given or arranged for. It would be, as it seems to us, misleading if, having had that guidance given to them, namely that they might canvass exchange of witness statements under paragraph 3, Chairmen should then find that the case was that no written witness statements were to be permitted at all.

Emphasising, then, that at this stage all we are dealing with at this point of the argument is a question of jurisdiction, and not going into the suitability of witness statements, either generally or in any particular case, we see no reason why the wide language of the rules should, be circumscribed and we thus see Rule 13(1) and Rule 16(1) separately or together as sufficient to authorise or enable the ordering of witness statements and their exchange, be it sequential or be it simultaneous. So that in point of jurisdiction the Applicant fails. Therefore we need to consider the question of discretion. It must be remembered that we are not able to overturn or change an order that is discretionary simply because we would have come, even if we would have done, to a different conclusion. We will only be able to upset a discretion such as the one we are now considering if it is such that the Chairman sitting alone and properly directing himself could not have come to the conclusion to which he came.

Again, we emphasise that we are dealing against the background of fact in this particular case. We recognise that there will be many cases where witness statements will be inappropriate. They are, however, in our experience, widely used. Provision for exchange in sequence will, doubtless, be unusual, but we emphasise, too, that on the particular facts of this case it can be seen that an order for sequential witness statements was thought by the Chairman to be of assistance to the Applicant, rather than in any way hostile to him.

A great number of points had emerged from the manner in which the Applicant's case had been brought forward. I mentioned earlier the seven or eight page letter of 29 March which was in purported compliance with an order for particulars. Some of the points that are made there are of great generality. Just picking almost at random a number of points, the one that has been eventually numbered two says this:

"Every year Heads of Department are required to complete their round of staff requirement planning and have the Personnel approve, by late March or April at the latest, the level of their staffing requirement to cover the courses in the following academic year. This is calculated according to the cover needed for existing students and the number of students to be admitted to courses based on applications that have already been processed or will have to be considered in order for the University to meet its commitment to the Higher Education Funding Council as to the Maximum Allocated Number of Students (MASN) for each type of course."

Another one was numbered 9. It was this:

"In short, the Respondents have never ceased the continuing display of bad faith in all their 'responses' towards this case."

The number 28 says:

"Throughout the academic year 1994 - 1995 many temporary or part-time employments were being made permanent to fill university vacancies. I was not considered for any of these despite my unquestionable suitability, excellent appraisal report on both quality and the scale of my teaching and research contributions and my overall academic leadership role."

Another one that is unnumbered on page 24 of the bundle that we have says:

"My colleagues were being told not to communicate with me as it would be 'dangerous' or 'bad news' so to do."

One can see that the range of possible attack under allegations as broad as those is immense and it is right that the Respondents and the Tribunal should know which, of such very general allegations or even which parts of such very general allegations, are ultimately going to be the real battleground in the sense that they are truly intended to be supported by evidence from the Applicant and therefore have to be defended on the part of the Respondent.

If every point in Mr Badii's long letter of 29 March had to be defended because it was assumed that it was being pursued, then there would be immense labour in time and costs and it could prove unnecessary were the case ultimately to transpire to be that some, at any rate, are not at all intended to be supported by evidence from Mr Badii.

The Chairman of the Industrial Tribunal who heard the matter, wishing to provide that the real issues were focused on and having regard, no doubt, to the procedural history, chose to go not by what one might call "the pleading route" of providing yet more further and better particulars (which is what the Respondents were asking for) but saw instead that it might be more helpful, both to the Applicant, to the Respondent and to the Tribunal, that the matter should be dealt with by way of evidence in advance rather than pleading.

We do not have Extended Reasons for the Decision but we do have notes made by the Chairman intended to be passed on to the Chairman of any subsequent full hearing and in those notes the Chairman records as follows:

"Despite guidance and prompting the Applicant was unable to say at the Interlocutory Hearing whether the allegations prior to 31 August 1995 are merely supportive of an allegation of a single act of discrimination on 31 August 1995 or are intended to be separate allegations of discrimination in their own right."

And on the next page he says:

" ... I decided that the exchange of extended further particulars was unlikely to be helpful or productive or to assist the Tribunal in determining the issues. On the other hand, there were areas in which the Respondents required further particulars of the Applicant's case in order to prepare for the hearing. I therefore decided that in this particular case the order most likely to advance the case and see justice between the parties was one for sequential advance disclosure of witness statements."

And that was how he came to make the order.

Mr Kibling says that Mr Badii regards the provision that witness statements should be sequential rather than simultaneous as oppressive in some way. We fail to understand that complaint. If witness statements were produced only at the hearing itself one would expect the Applicant to produce them first from his side. If oral evidence only was given it would come first from the Applicant. It is hard to see how a practice which, in the High Court, is regarded as quite ordinary (in the sense that affidavit evidence is provided in sequence) should in any way be regarded as unfair or oppressive in the Industrial Tribunal. Plainly there will be cases where it would be wrong to order them or oppressive to order them, but here we see no ground for regarding either the provision of witness statements as such or that they should be provided in sequence rather than simultaneously as a matter which discloses any error of law on the part of the Chairman.

We cannot, as I have mentioned earlier, set his exercise of his discretion aside simply because we would not have done the same, even if that would be the case. We would have to find some error of law in it and, once the jurisdiction point is decided against the Applicant, it is hard to find any point of law which is sufficient to vitiate his exercise of the discretion.

However, we do need to make some observations on the form of the order of 25 September. I remind that the provision was that there should be written statements from the Applicant of all oral evidence he intends to adduce at the hearing and, equally, so far as concerns the Respondents, it was of all oral evidence they intended to adduce. Plainly, in either of those contexts all could not truly be taken to mean all. For example, no one could argue that oral re-examination, either of the Applicant's or of the Respondent's witnesses, was to be precluded. Interpreted in practical terms what "all" means there is "all that for the time being, on the information that he has, that particular party contemplates as being the totality of the evidence-in-chief which he intends to adduce at the hearing". It will be noted that if "all" had some other meaning then the Applicant would be precluded from putting in a witness statement by way of evidence in reply. We have touched on this point both with Mr Kibling and with Mr Lemon, who appears for the Respondents). Mr Lemon (who also appeared below, whereas Mr Kibling did not) understands that the order was not contemplated or intended as precluding evidence in reply on the Applicant's part. It must be remembered that on this racial discrimination part of the case the burden is on the Applicant and so one would ordinarily expect him to be entitled to have the last word. It is not for us to fetter the discretion of the Chairman in the future, but, for all that, it would be prudent for us to state that there needs to be a degree of flexibility in these matters. We can see a case for Mr Badii being given the last word and for his therefore being able to adduce evidence by way of written witness statements in reply where the matter sought to be so introduced is truly by way of reply, namely that it is to answer matters which arise for the first time in the Respondent's written evidence and therefore which can and needs to be met for the first time by the Applicant's written evidence in reply. There also needs to be a degree of flexibility for meeting practical difficulties that might arise. The order provides, for example, for "signed written statements" and one can foresee that if, for example, Mr Badii has been able to provide a written statement but the signatory is on holiday, then some flexibility would need to be allowed. Thus it has to be recognised that, notwithstanding the apparently absolute terms of the order, exceptional circumstances need to be responded to in exceptional ways. We do not attempt (and it would be wrong of us to do so) to fetter the way that the Chairman responds to exceptional circumstances, but we do indicate that some flexibility as to the Applicant's ability to put in evidence in reply and otherwise to cope with unusual circumstances would seem to be proper.

The discretion, therefore, and the jurisdiction thus surviving Mr Kibling's attack, we are left only with relatively small points. It will be remembered that the stipulated timetable was 13 November for the Applicant's evidence, 4 December for the Respondent's and the hearing to be on 7, 8 and 9 January. Those first dates have passed without exchange of witness statements as I earlier explained.

It seems to us the convenient way of dealing with the problem is to remit to the Chairman the consideration of what fresh dates may be provided. It is best done by the Chairman because the appropriate dates for exchange of evidence must in part depend on what dates are available for the substantive hearing. He will have to provide not only dates for evidence, but dates for that hearing and we remit the timetable in that respect to him.

Mr Lemon had a point consideration of which we put to the back of his case for the time being. It concerned whether the appeal could be heard in the absence of Extended Reasons. As he has succeeded on other points, we do not need to deal with that and it has not been pursued. We leave it for further argument in a case where it truly requires decision.

It will be remembered that the order not only made provision for the exchange of evidence but declined to order in the Respondents' favour for the further and better particulars that had been asked for. There was a cross-appeal on that subject but one to be pressed only if the Respondents failed to retain the order for witness statements That does not now need decision either and so we leave that cross appeal without any matter of order to meet it.

The only remaining point is that we have heard informally that the President, Mr Justice Morison, has had a case, which presumably was not wholly dissimilar, in front of him with another panel of members and that at the conclusion of it the President announced that the result in that case was that witness statements could properly be ordered. We understand that reasons for that judgment have not yet been announced. It would have been open to us to have reserved this matter until those reasons become clear, but, given that the parties here are working to a timetable that contemplates a hearing of the substantive case very early next year, we thought it better to proceed, albeit somewhat rustically, to give our reasons here and now, rather than awaiting the learned President's judgment. We are able, though, to derive comfort from the informal indication that his conclusion is pointing in the same direction as ours, although whether he had to deal also with the sequentiality point we are not clear.

Accordingly, to revert to our matter, we remit the matter to the Chairman to fix a new timetable on the basis that he has jurisdiction to order witness statements; that he has jurisdiction to order them in sequence rather than simultaneously and that a date for a new hearing will need to be fixed. The appeal therefore is dismissed.

Mr Justice Lindsay.

Hope the 2nd draft is okay. I have left just a few spaces for you to fill in. .

I have taken the spelling of the Appellant from his (letter) Originating Application, document 1. Also, I have now checked the quotes.

Iris

(Typing)