United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P. EDWARDS (of Counsel) The Solicitor London Borough of Lambeth Town Hall Brixton Hill London SW2 1RW
For the Respondent	MS B. LANG Messrs Deighton Guedalla Solicitors 127 City Road London EC1V 1JB


 


MR JUSTICE LINDSAY: Ms J. Blandford makes claims against the London Borough of Lambeth for sex discrimination and breach of contract and this is an appeal by the London Borough of Lambeth in proceedings in the London (South) Industrial Tribunal in which Ms Blandford is the Applicant and the London Borough of Lambeth ("Lambeth") is the Respondent.

The appeal is against a decision of the Chairman, Mr John Warren, sitting alone, a decision that emanated from a hearing on 2 December 1996 but which was promulgated on 18 December 1996. The decision was that Lambeth's Notice of Appearance be struck out and they be debarred from defending the application. The decision went on, although we have not been concerned with this part so far:

"If agreement has not been reached on remedy on or before 12 December 1996, the Applicant should contact the Tribunal for a date for a remedy hearing"

And there has subsequently been some by-play on that latter part but we are not concerned with it for the moment.

The reason for the striking out was the alleged failure of Lambeth to comply with an order that had been made in the same proceedings by Lt. Col. D.W.H. Brayden on 18 August 1995. That order is headed "Interlocutory Order" and was partly by consent and partly not by consent. We do not need to concern ourselves with all the paragraphs of the order of 18 August 1995 but some there are that should be read. It begins:

"At that Hearing for Directions held on 18 August 1994 [it should be 1995] the following Orders and Directions were made by consent:

(1) The Respondent [it was Lambeth at that stage] is to answer the CRE questionnaire and additional questionnaire within 14 days of the hearing.

(2) The Respondent is to provide inspection of its listed documents within 28 days of the hearing. The Applicant is to make specific request for discovery within 14 days of inspection."

Then there are sub-paragraphs 3, 4 and 5 as to which no complaint is made and then at paragraph 3, which is not expressed to be "By consent", there is an opening passage which indicates that, in the Chairman's view, a particular question 17 in the earlier CRE questionnaire being referred to was not an apt question and instead he orders the Respondent to answer the following questions:

"(1) Is there a 5 year leave option available to men?

(2) If so, how many men have it in whole or in part in relation to each year since 1990? On what dates respectively did the men leave? When did they return? What was the previous grade and job title and what was the grade and job title of the post returned to?

(3) If not, how many men have had a leave of absence of five years or more and returned on or after 1990? What were the dates of return and the grades of the posts they left and returned to?"

And he then says that the time for compliance with that part of the order was 28 days from the date of the order.

It would be appropriate at this stage to draw attention to the Rules, The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, wherein the first schedule to paragraph 4, is headed "Power to require further particulars and attendance of witnesses and to grant discovery". Attention should be drawn to rule 4(2)(b) which is as to requiring the production of a document and appointing a time and place and rule 4(3), which is the Tribunal given power to require answers to questions. I will not read these out and take time. And then 4(7):

"(7) If a requirement under paragraph (1) or (3) is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether: but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."

There is quite a long chronology here which has been very rightly drawn to our attention by Mr Edwards for Lambeth and by Ms Lang for Ms Blandford but I do not think we need to go over the whole period of it. It should be sufficient to start in April 1996 when, on 3 April 1996, Messrs Deighton Guedalla, who are Ms Blandford's Solicitors, told PPC, who were Lambeth's then Consultants, that they had written to the Industrial Tribunal on the subject of Lambeth's failure, as Deighton Guedalla saw it, in relation to compliance with the order that I have just read, the order of 18 August 1995. It is unfortunate, but the case seems to have been, that neither Deighton Guedalla or the Industrial Tribunal, but certainly not Deighton Guedalla, sent a copy of that letter of complaint to Lambeth or to Lambeth's then Consultants, PPC.

The Industrial Tribunal's response to the letter of complaint about the non-performance or non-observance by Lambeth was extraordinarily slow and over a period of months, through May, June and July of 1996, Deighton Guedalla very properly were repeatedly reminding the Industrial Tribunal that they had had no response and that nothing seemed to have been done.

On 9 July 1996 (although this is a reference to a document that is not actually before us but seems to be referred to) it may be that the Industrial Tribunal then gave PPC and Lambeth 14 days to comply with the earlier order but, if that is the case then at the expiry of the 14 days the Industrial Tribunal did nothing itself to act upon that expiry, if indeed the letter had been written in the first place.

On 30 September 1996 PPC, on behalf of Lambeth, wrote to the Industrial Tribunal asking for an early hearing of the substantive case between the parties. On 24 October 1996 Deighton Guedalla invited the Industrial Tribunal to bar Lambeth from further activity in relation to the case by reason of their failure to have complied with the order of 18 August 1995.

On 30 October the Industrial Tribunal wrote to both parties informing them that there would be an Interlocutory Hearing on 2 December, which would deal inter alia with the question of whether Lambeth should be struck out. I think, on a generous view, that could be taken to comply with the need for a notice to show cause of the kind referred to in Rule 4(7), although it may be regarded as deficient in relation to the fact that it does not mention that the Respondent might be debarred as opposed to struck out. But no point has been taken and it would not be for us to take that point. Then on 2 December 1996 the Interlocutory Hearing took place with the result of the order being made against which the appeal is conducted.

Lambeth raises a number of points in its appeal and the first of them touches upon inspection of documents. The order of 18 August 1995 required inspection to be given to Messrs Deighton Guedalla of documents relative to the case. The position is that some of the documents, by no means all that had been supplied, had been found to be illegible. It may be, it is not entirely clear, that that was the only complaint as it was by the time the matter was before the Industrial Tribunal on 2 December.

The Chairman recognised that Ms Blandford had a complaint in relation to documents. What the Chairman says, sitting alone of course, is that the Applicant complains that the Respondents have not complied with paragraph 1 of the Interlocutory Order, the requirement to answer the CRE additional questionnaire within 14 days of its hearing, neither has inspection been provided as required in paragraph (2) of the order. But the Chairman unfortunately, does not go on to say whether that complaint was founded or unfounded. Lambeth say (although there is no reflection of this in the findings of the Industrial Tribunal) that copies of all Lambeth's documents had, indeed, been supplied by 2 December. They say that that was not disputed by Ms Blandford's advisers at the time, although that is in fact not accepted here today. But they also say that Ms Blandford suffered no prejudice from the delay in production of legible copies because at that time, 2 December, there had been no date fixed for the substantive hearing of the case and there was therefore no real delay.

It is very difficult for us to come to any informed decision on the issues relating to inspection of documents. There is no particularisation to us of precisely which documents were said to be illegible, what proportion of the overall body of documents were thus afflicted. There is no evidence of prejudice to Ms Blandford and her case. Plainly, some delay is likely to be suffered but whether there is material prejudice is not shown and there is no finding of the Chairman that the failure to supply legible copies has itself materially delayed the progress of the case or, indeed, prejudiced Ms Blandford in any other way. Despite that, the Chairman does hold (I am looking at his paragraph 11) that the Respondents had done nothing to remedy the position and to comply with the Interlocutory Order. That seems to be a considerable overstatement. There are undoubtedly some things which Lambeth had done to comply with the Interlocutory Order.

So one is left with the position that doubts are left in our mind about the propriety of the Chairman's approach in relation to discovery, but that is only one of the topics which have been raised before us. A second heading is the answers given to the Chairman's questions. A distinction has to be drawn between the Chairman's questions and the so-called CRE questionnaire.

The Chairman, Mr Warren, on 2 December recognised that answers had, in strict terms, been given to the questions that had been set by the Chairman in the earlier hearing. What was said on 2 December in paragraph 6 was:

"As to the three questions ordered by the Chairman, (see para 4 above), to be answered by the Respondents, the Applicant contends that the answers do not reflect the actual position. The Applicant argues that the problem is that unless the information is properly provided, then the Applicant is not able to prepare her case."

So there is a recognition there that answers were given but that they are said not to reflect "the actual position".

There was however, it seems, no evidence that the answers were deliberately left insufficient or inaccurate and, indeed, there was no evidence strictly on the subject whatsoever before the Chairman. It is by no means clear to us that, if an answer is given and fits the question and is the honest belief at the time of the person giving the answer, that such would represent a failure to comply with the order if "the answers do not reflect the actual position" as it later transpires to be.

There is a rather unattractive aspect about the position in relation to the Chairman's questions and that is that at the hearing on 2 December 1996 there was produced, as it seems for the first time, to Lambeth at the hearing before Mr Warren, a letter concerning the position of a Mr Maybey. The letter is a letter from Lambeth, so one might think that Lambeth would have known of it, but they were not supplied with the letter ahead of the hearing and the gist of the letter was relied upon at the hearing of 2 December in support of the contention that the answers that had been given to the Chairman's questions were inadequate.

There is a rather unpleasant overtone suggested that deliberately a letter was sprung upon the then adviser of Lambeth and that he was taken by surprise and was inadequate in his response in relation to it. We certainly do not wish to associate ourselves with that type of complaint but it is plainly very desirable that, if a given document is to be relied upon at a hearing as an indication that another party has failed to comply with an order, that that document should be supplied and should be supplied as early as practicable, so that if there is a possible and proper response, an explanation of it can be given.

If we were to attach any great weight to the failure to answer the Chairman's questions, (given that some answers were provided, albeit that they "do not reflect the actual position") we would need to have been satisfied, as would, indeed, the Chairman, Mr Warren, who heard the matter, that the failure to answer in such a way as did reflect the actual position, was a deliberate evasion or was a falsehood. Those would be serious allegations to make and, if made, would have to be made in advance of the hearing and would have to be made clearly. Documents that were to be relied upon in support would have to be clearly supplied and it is only against that background that it would be fair to judge the answers as being so defective that some striking out or debarring ought to be the proper remedy to meet the defect. But there was, as we have mentioned, no evidence and we are left simply with the contention that the answers do not reflect the actual position without the Chairman having investigated why that was and in particular, whether it came about by way of a deliberate evasion or falsehood. So much for the answers to the Chairman's questions.

Then there is the question of the so-called CRE questionnaire (which is in fact a misnomer but, for all that, is used to distinguish between the Chairman's questions and the original questionnaire, the other questionnaire).

Again, there was no evidence that the answers that had been given by Lambeth were inaccurate or insufficient or that they had been deliberately made so by Lambeth.

The position, which was not, in fact, mentioned by the Chairman, Mr Warren, was that as early as 15 February 1996, PPC the Consultants for Lambeth, had themselves asked for a further directions hearing of the Industrial Tribunal on the point. They had asked the Industrial Tribunal to arrange such a hearing in order that difficulties about the questionnaire might be resolved but unfortunately, for whatever reason, the Industrial Tribunal had declined that request.

It is to be remembered that the Sex Discrimination Act itself provides for the case where the person questioned deliberately or without reasonable excuse fails to answer a questionnaire. The particular sanction provided by Parliament, even therefore for a deliberate evasion or failure, is not a striking out of a defence but merely (I say merely, but it may be the wrong word to use) the ability of the Court to draw inferences from that failure.

Mr Edwards, on behalf of Lambeth, can fairly argue that if Parliament has visited even deliberate failure with only that more limited sanction then surely, he would say, a striking out of the whole case and a debarring is quite disproportionate, especially when there has been no evidence of prejudice to the Applicant. In this regard he cites also to us the case of Carrington v Helix Lighting [1990] IRLR 6.

So, before we come to what we see as the strongest point in Lambeth's failure, there are plainly areas of real doubt here as to the propriety of the Chairman's exercise of the discretion. But it is not for us merely to ask the question whether we would have decided the case as had the Chairman. We have to recognise that he is the master of fact. He is only to be overturned in his discretion if he errs in a point of law, but it is in that context that Mr Edwards refers us to two cases in particular. The first is the case of National Grid Company Plc v Virdee [1992] IRLR 555, a judgment of the Employment Appeal Tribunal under Wood J, and it would be appropriate to read paragraph 26 of that case:

"To summarise the principles as we have sought to distil them from the cases, they are that the principal object of rule 4(4), as the similar rules in the County Court and the High Court, is to obtain compliance with the orders made and that it is only in the most serious cases that punishment should be considered. In the first instance punishment is envisaged either under rule 4(3) or by striking out under rule 4. The latter is far more serious and final. It should only be utilised in those cases where any judgment ultimately obtained could not be considered to be fair between the parties."

A strong test to be satisfied. The other case that has been relied on by Mr Edwards, we unfortunately have only as reported in The Times and it is at 5 March 1988, Logicrose Ltd v Southend United Football Club Ltd before Millett J. That was a case where the allegation against the person who was sought to be struck out was an even more serious one than the one before us because the allegation there was that he had not merely failed to disclose the existence of a crucial document in his possession or power but that, having obtained it during the course of the trial and during his cross-examination, he deliberately suppressed it and for a time concealed its existence from the Court. Even so, Millett J held against that allegation (which he was not satisfied, in any event, was made good) as follows: "but to debar the offender from all further part in the proceedings and to give judgment against him accordingly, was not an appropriate response by the Court to contempt". A little later, he points out that the object of the High Court rule, order 24 rule 16, was not to punish the offender for his conduct but to secure the fair trial of the action in accordance with due process. There were then a number of authorities cited.

We, for our part, would doubt whether Virdee is not a little too favourable to someone in Lambeth's position because it is plainly the case, on authority, that if there is deliberate and wilful and contumacious disobedience of an order of the Court then the person so responsible for such behaviour can find his or her case struck out, notwithstanding that a fair trial might still be possible. But where conduct of that high degree of blameworthiness is not proven, then the test suggested by the EAT in Virdee, we would say, is correct, namely that the Court has to consider whether any judgment ultimately obtained could not be considered to be fair between the parties. Here, there was and is no evidence that the substantive hearing in this case would necessarily, in the events that had occurred by 2 December 1996, have been unfair, or would be unfair by reason of Lambeth's delays and failures in relation to their non-compliance with the order.

The Chairman, Mr Warren's response on this is, in our view, inadequate. What he says is this:

"Mr Lock [and that is the name of the representative then appearing for Lambeth] said that it would be draconian to strike him out as the Applicant would not be prejudiced if the Order was now complied with as the hearing has not yet come on and she would therefore suffer no prejudice. I note what Mr Lock says but if that were the case there would, it seems, be no point in having the power to make such Orders and there would be no point in having the penal provisions for breach as on his argument, they would never be enforced."

Of course, orders of the kind here made can, in appropriate cases, be enforced by way of the strike-out. If the non-compliance is proven to be deliberate and contumacious, or truly prejudices a future fair trial, then the strike-out is appropriate and to say, as the Chairman said, "they would never be enforced" is plainly wrong.

We hold that the Chairman paid insufficient attention to the principle of Virdee that we have mentioned and insufficient attention to the guidance given him by the Logicrose case. He exercised his discretion, in other words, on the wrong principle. It is therefore for us to exercise it afresh.

We recognise that there is a significant history of delay and failure on Lambeth's part. Nothing that we have said is intended to suggest that Lambeth have been an informed and co-operative and helpful party to this litigation, which is of a character where the Applicant, as Ms Blandford, is in a position not sufficiently to know the nature of her complaint until given information by the body against whom she complains; that is in the nature of sex discrimination cases. But a strike-out of the whole case is, in our view, on authority and having regard to the Virdee and Logicrose principles, quite disproportionate to the shortcomings that have been exhibited in the conduct of Lambeth. Put at the crudest level, the punishment does not fit the crime. On the other hand, to leave Lambeth with no sanction dangling over them would, unfortunately, to be likely to invite relapse and non-compliance.

And so, accordingly, we propose directions for the future conduct of this case. We allow the appeal. We undo the striking-out and the debarring but we give further directions as follows. It might, in an ideal world, have been right to begin the further directions with a direction that Ms Blandford should supply a list of what she claims to be the remaining defects, but we are loathe to put that obligation on her and that expense on her and rather cast it the other way round.

We say that Lambeth is to have until 30 May 1997 to consider any remaining deficiencies in its compliance with the order of 18 August 1995 and to make good the deficiencies that it perceives as still existing. It is to have until the close of business, 4.30 pm on 30 May to make good those deficiencies and also, in so far as there are failures to comply which it is not able to make good but which it feels it has some explanation for, it is to have to 4.30 on 30 May to supply to Deighton Guedalla an affidavit or affidavits setting out every reason which Lambeth would wish to advance for failing to comply with the order of 18 August 1995. So that is what Lambeth has to do and has to do it by 30 May.

If, on receiving that, Deighton Guedalla, considering the material they shall have received from Lambeth, be it further documents or further attempts to comply or further answers to questions or an affidavit or whatever, still feel that compliance is inadequate or unexplained or unsatisfactorily explained, Deighton Guedalla are to be at liberty, by 4.30 pm on 16 June, to apply afresh to the Industrial Tribunal for a striking out or barring order. And when they apply to the Industrial Tribunal they must also send a copy of their letter to the Industrial Tribunal to Lambeth's present advisers.

Before the hearing of that second striking out or barring hearing (if there is one) Deighton Guedalla are to send particulars in writing to Lambeth at least four working days ahead of the hearing specifying what defects, in their view, still remain or are inadequately explained. At that further hearing, if there is one, the Industrial Tribunal will be liable to treat as a deliberate and wilful failure any failure which existed as at 30 May 1997 and which was not, in the view of the Industrial Tribunal, satisfactorily explained in the evidence, if any, which Lambeth had supplied to Deighton Guedalla by the 30th or on 30 May 1997.

In other words, we are moving towards something like an "unless" order, without it being quite so framed. Deighton Guedalla would be at liberty to adduce evidence at the second strike-out or barring application of prejudice to a fair trial which they would wish to have considered by the Industrial Tribunal and, if evidence of that kind is adduced by Deighton Guedalla on Ms Blandford's behalf, then, of course, Lambeth would be at liberty to reply to it.

If however, by 4.30 on 16 June, Deighton Guedalla have not applied to the Industrial Tribunal in such a way, then Lambeth will be taken satisfactorily to have complied with or satisfactorily to have explained their non-compliance with the order of the first Chairman, Lt. Col. Brayden. On that basis, the matter would then be restored to the Industrial Tribunal for general instructions as to the substantive hearing.

Nothing we say precludes Ms Blandford from applying to the Industrial Tribunal for an order for discovery by Lambeth on oath. Ms Lang takes the line that, given Lambeth's dilatory compliance, grudging compliance and, as she would have it, non-compliance with the order of Lt. Col. Brayden in these proceedings, it cannot be expected that Lambeth will not produce "out of a hat" some material document or some material witness at the very last minute at the substantive hearing. We see the risk of that, given that Lambeth seems to be a body in which the right hand does not necessarily know what the left hand has done, but to guard against that and to protect Ms Blandford against that, it might well be right (it is not for us) for Ms Blandford to apply to the Industrial Tribunal for an order for discovery on oath, so that there should be less risk of that happening than might otherwise be the case. But that is very much a matter for a restored hearing in front of the Industrial Tribunal.

At this stage we simply allow the appeal, undo the striking-out and debarring and give those further directions of the kind that we have indicated.