United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MS B LANG (of Counsel) Instructed by: Mr S Levinson Messrs Paisner & Co Solicitors Bouverie House 154 Fleet Street London EC4A 2DQ


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Employment Tribunal Chairman of an interlocutory nature which is recorded in his extended reasons dated 26th August 1998.

The hearing took place on 21st August 1998 and related to the evidence which the applicant, Mr Stanislas, was to be entitled to call in relation to his complaint of unlawful discrimination brought against the Bedfordshire Police Authority and various named individuals.

This is a matter which has become complicated, if it was not complicated from the outset. There are a large number of documents in existence. Counsel for the respondents invited the Employment Tribunal to fix a hearing which was going to last for 20 days, because it was her estimate that that would be the sort of time that would be required. The proceedings in question have a long history. The events to which they relate having occurred largely as I understand it, in 1995.

It is the position of the respondents that the applicant and his advisers have been deliberately obstructive in the way in which they have prepared themselves for the hearing which was due to start on Monday of this week.

The Employment Tribunal sought to take control over these proceedings at an interlocutory hearing in March 1998. Directions were given including a direction that the parties should exchange the statements of evidence of those witnesses whom they wished to call.

It is clear that some work was done on the applicant's behalf towards obtaining witness statements. Indeed, some statements in some form or other may well have been obtained in the past.

Mr Stanislas' position is that he has invested some £45,000 of his own money in this litigation; that it is unfair to criticise him personally for what has occurred because it is his desire that his case should be adjudicated upon in a fair, just and reasonably expeditious manner. But he finds himself in a position where, for one reason or another, he has not been able to comply with the provisions as to the exchange of witness statements. I think at this stage he is not happy about the Employment Tribunal starting to hear this matter on the date which was fixed some time ago.

Against that background, the applicant's failure to produce witness statements was the subject of debate at the hearing on 21st August 1998.

The Employment Tribunal on that occasion concluded as follows:

"7. I find that as Mr Stanislas has known since October 1997 that witness statements had to be prepared and exchanged, an Order which was repeated in firm terms on 10th March 1998 when the latest acceptable date for exchange was specified and, as he has not satisfied me that he has made any attempt to obtain statements from his prospective witnesses, he will not be allowed to adduce evidence at the hearing of the applications other than his own evidence as disclosed in the statement which he has supplied to the respondents' solicitors. I discharge the witness orders which have been granted."

It is against that decision that this appeal has been brought.

Mr Stanislas first of all asked us not proceed with this appeal because he says that he is not in a position to prepare himself for it because he has been working hard on the preparation of the case which is due to start tomorrow and he has not had an opportunity of being assisted by the legal representative who is going to be looking after his interests. Accordingly, it would be unfair for us to proceed.

We for our part take the view that the most important thing at this stage is that the trial is conducted in an orderly, speedy and fair manner and that it starts as soon as is practicable as from tomorrow and continues throughout the days fixed for this hearing so that with a fair wind the case may come to an end in the allotted time. This is a stale dispute. Time is an enemy of justice. It seems to us that the first requirement is that this time fixed for the hearing should not be lost under any circumstances.

Accordingly by adjourning this appeal we would have done an injustice to Mr Stanislas because the order of the Employment Tribunal would have remained in existence unconsidered whilst the Employment Tribunal proceedings continued.

We have therefore considered the matter as a matter of urgency. But we have approached this case on the basis that the tribunal will be considering on the basis of what should be done for the future conduct of the case, rather than by harking backwards to the history of the proceedings and any difficulties which have occurred in the past, and without seeking at this stage to attribute blame or fault to anybody in the conduct of the case. The just and expeditious disposal of this matter demands that both sides should be given a fair opportunity to present their cases, however badly or otherwise they may have behaved in the past.

We have been told this morning by Mr Stanislas that there are five witnesses whom he would wish to call but who he believes will be unwilling to attend without there being a witness order in existence. The first of them is Sergeant Noel Gray. He told us that he has no witness statement from that witness at the present time. Councillor Neville White and another Councillor, who he named, from whom he also has no witness statements. A person called Lola Stone and a person who was his old boss, Gary Banks. He wants a witness order in relation to those five people. Furthermore he says he wishes to call to give evidence on his behalf three people from whom he has or will have witness statements: Conrad Ashade, from whom he has a partial statement which he is hoping to complete tonight; PC Dykes John from whom he does have a witness statement which has yet to be served on the respondents; and a person who is called in the correspondence, Jarius Abi-Mu-Heal, from whom he has a partial statement and it is his intention to complete it either tonight or tomorrow.

What should now be done?

In the first place we wish to indicate that the Employment Appeal Tribunal fully support the way in which the Employment Tribunal has sought to bring this matter to an orderly and satisfactory conclusion. Nothing we say in this judgment should be interpreted as implying that we have found any criticism to be levelled against the way they have attempted to deal with it.

The real point that was raised by Mr Stanislas in his appeal is that the Employment Tribunal did not possess the power to require witness statements against the threat that if the statement was not exchanged the witness could not be called to give evidence. We gave a judgment in relation to the power of Employment Tribunals (formerly Industrial Tribunals) under their rules in regard to witness statements and for better or worse would refer to that decision Eurobell Holdings PLC v Baker [1998] ICR 299, where we indicated that it was good case management to require those statements and that the tribunal had a discretion not to permit a witness to be called where an order had been made but no witness statement had been served. Accordingly his submission to us that the Employment Tribunal made an order which they had no power to make, is not a proposition with which we can agree in the light of that decision.

However, it is clear that litigation is a dynamic process. Things change in the course of litigation. The fact that a tribunal has made an interlocutory order today, does not mean to say that the interests of justice require that that order should stand tomorrow. If the circumstances have changed or justify a new approach, then of course a tribunal should be quite willing to adopt it.

On 14th September 1998 when the matter came back before the Employment Tribunal, it is to be noted that a number of possible suggestions were made on the respondents' behalf as to how Mr Stanislas' difficulties with regard to his evidence could be accommodated. Again, we do not wish to comment on what happened on that occasion, other than to say that we consider that the Employment Tribunal have fairly sought to give Mr Stanislas assistance.

However, we approach the matter now on the basis of the facts as we understand them to be in relation to those witnesses. We will not ourselves exercise the powers of the Employment Tribunal to make a witness order against the five named people because it seems to us that the Employment Tribunal is best placed to consider making those orders. We take the view that the fact that they discharged the previous witness orders should not be taken by them as an immutable decision which should apply in the present circumstances. The procedural requirements and orders of the court are not to be treated as hurdles to the doing of justice. If justice is better served by the applicant calling such evidence as he wishes to do so and which is available to him, then I am sure that the Employment Tribunal will wish to hear and receive that evidence, provided that in doing so no prejudice will be caused to the respondents which cannot be dealt with in some form or another. In other words, it would be undesirable if Sergeant Gray has some evidence to give, and if he was to be denied the opportunity of appearing as a witness merely because of procedural default which may or may not occurred in this case; and whether or not Mr Stanislas' conduct in relation to witness statements can be legitimately criticised. The picture is to be looked at for the purposes of doing justice in the future.

If Noel Gray cannot justly be called to give evidence, then no doubt the tribunal will consider that submission. But it seems to us that if he is able to provide a witness statement in advance of him giving evidence, then the tribunal would be entitled to ask Mr Stanislas to provide that. But if a witness is unwilling to give a witness statement, and requires to be subpoenaed to give evidence, then it seems to us that no order in relation to exchange of witness statements should prevent the party who wishes to call such a witness from doing so pursuant to a witness order.

The same applies to the other four named persons. Of course if the tribunal was not satisfied that any of those named people had anything which could advance their understanding of the issues in the case, then it would be perfectly legitimate for them to refuse to grant a witness order in respect of that witness. A party is not entitled simply to take up the time of the tribunal by calling evidence which is of no value. That is a judgment for the Employment Tribunal and not for us.

In relation to the other three named people, it seems to us that the Employment Tribunal tomorrow morning will almost certainly expect of the applicant that the witness statements which are either partial or complete as the case might be, should be served on the respondents immediately they are completed as a condition of him being permitted to call them to give evidence. That is a relaxation of the order which was made on 21st August 1998, but of course it goes without saying that the fact that they made a different order on that date, is no grounds for not making such order as is just and sensible tomorrow morning.

It seems to us, therefore, to summarise the position. Firstly, that the tribunal has been using its best endeavours and acting properly in seeking to get this case to a conclusion. But secondly, some degree of flexibility and good sense should now prevail in relation to the applicant being entitled to call the witnesses, even though he has been in breach of the orders made by the Employment Tribunal. It would be most unfortunate if at the end of a longish trial and an adjudication by the Employment Tribunal, it should appear that injustice has been done to Mr Stanislas as a result of an overharsh interlocutory decision. Accordingly, we have every confidence that the Employment Tribunal tomorrow morning will properly be able to make any further orders in relation to witnesses, whether by way of witness orders and whether by way of exchange of witness statements, as will meet the justice of the case. The justice of the case demands, in principle, that parties should be entitled to call whatever evidence they then have available, however inconvenient it may be to the parties, but subject of course to the doing of justice to both sides. Accordingly the appeal is dismissed. We hope that this case will be concluded in the time which has been allocated to it.