“24.3. (1) consistent with the overriding objective stated in rule 2 of the [ET Rules], inparticular (but not limited to) the desirability of dealing with the case in a way whichwas “proportionate to the complexity and importance of the issues” and of “savingexpense”, and (2) both just and fair.”
“19 … it was in my view almost (but of course not completely) inconceivable that[Tesco] would in the future seek to advance a response which was not to substantially the same effect as the case which it eventually advanced at trial, and in any event allof the other claimants whose cases were stayed were going to be subject to preciselythe same disadvantage (if there was one) as that to which the [KP] claimants wouldbe subjected if I refused to lift the stay to the limited extent of requiring the respondentto present ET3 responses to the claims of the [KP] claimants.”
“20 … in practice it was difficult to see how [Tesco] could, after those determinations,credibly advance an argument in response to the stayed claims which was inconsistentwith its approach to the (by that time determined) “lead” claims. In addition, if [Tesco]sought to advance an argument which it had not advanced in response to the now-determined “lead” claims, then it might well (albeit that it would not necessarily)receive short shrift from the judge to whom the argument was now advanced.”
“29. … what [KP] should do was to make a formal application to be permitted towatch (meaningfully, i.e. in possession of the documents referred to during) futureprivate hearings concerning the Element multiple, …”
“… these being material events in the litigation which are helpful for us to understand contemporaneously …”
“… considered the correspondence from the parties’ solicitors concerning the orderwhich he made on19 July 2022 … [He] now confirms that he understood the word “served” in the [documents order] …to make it clear that the documents to be sent to [KP] … were only those which wereto be put before the tribunal for the purposes of the hearing in private to which thedocuments related.”
“(3) … failed to take into account how the [KP] claims were to be determined infuture, the relationship between the live claims and the stayed claims, and therelevance of this relationship for the case management of [those claims]; (4) … failed to consider and weigh the disadvantage to the [KP claimants] were theirclaims stayed for an indefinite period without a response; (5) … wrongly concluded that the [KP claimants] would be subject to no greaterdisadvantage than other stayed claimants by the absence of a response, incircumstances where: a. the other stayed claimants are represented by solicitors withconduct of active claims, and b. the [KP claimants] and the Tribunal had nounderstanding of any assurances or representations between [Tesco] and otherclaimants’ representatives, in the context of agreeing a consent order or as otherwiserelevant to the future management of those claims; (6) The decision not to declare or determine the [KP claimants’] representatives’entitlement to attend the remainder of the hearing or permit them to do so, was alsorelevant to the Employment Judge’s decision whether to require responses to the [KPclaimants’] claims, but was not taken into account by the Employment Judge inreaching his decision on the partial lifting of the stay”
“(7) … wrongly refused to acknowledge [KP’s] right, alternatively permit [KP], to: a. attend the remainder of the preliminary hearing (and future preliminary hearings)where the representatives of other stayed claimants were permitted to remain, andwhere attendance would reduce the prejudice to the [KP claimants] arising from thestay of their claims before presentation of a response by [Tesco]; b. have access to thesame documentation as the other parties to the combined proceedings in circumstances where: i. the representatives of other stayed claimants have access toall documentation in the proceedings, and ii. access to full documentation wouldreduce the prejudice to the [KP claimants] from the stay of their claims beforepresentation of a response by [Tesco]; (8) … failed to take into account that a stay of the [KP] claims without access to fulldocumentation and attendance at hearings would make the period of the stay illusory,in that it would withhold from the [KP claimants] information which could be relevantto the question whether the stay should be lifted.”
“18. … hyper-critical or over-analytical … of tribunal decisions which … are closelyconnected to the practical management of complex or intractable litigation”
“55. … Parties to litigation are generally entitled to be represented by the solicitors oftheir choice, and to have their case argued by their own representatives. However, ingroup litigation, that entitlement is qualified. In order properly to achieve efficientconduct and case management of the group litigation, that basic right takes secondplace to the advancement of the rights of the cohort …”
“93. Such an appeal ought only to succeed where an overwhelming case is made outthat the employment tribunal reached a decision which no reasonable tribunal, on aproper appreciation of the evidence and the law, would have reached. Even in caseswhere the Appeal Tribunal has ‘grave doubts’ about the decision … it must proceed 90. with ‘great care’: British Telecommunications plc v Sheridan[1990] IRLR 27 atparagraph 34.”