Wright v Sharjah Research [1992] UKEAT 163_92_0704

EAT
Wright v Sharjah Research
[1992] UKEAT 163_92_0704 · 1992-04-07
MR JUSTICE KNOX: This is an appeal by Miss Sarah Wright against a refusal by the Regional Chairman of a request for a Pre-hearing Assessment. The request was by letter dated the 20th February 1992 to the Assistant Secretary of the Industrial Tribunal Regional Office and the letter said this, having given the heading of the matter:
"Mr Borman-Schreiber has discussed the matter of his involvement in my case with me and I am very much concerned that he should be brought into a matter which has no connection with him. Since I have no knowledge of the allegations contained in my opponent's statement I am not in a position to put this matter right.
I am therefore now formally requesting a pre-hearing assessment so that the matter concerning Mr Borman-Schreiber can be removed. I fear that it may be otherwise prejudicial to my just claim and it would also quite unjustifiably cause damage to Mr Borman-Schreiber's reputation. This should surely not take place before an Industrial Tribunal."The reply came on the 25th February saying that the application had been refused on the direction of a Chairman of the Industrial Tribunals and the letter continues:
"Additionally he [the Chairman] directs that the allegations are the respondents reply to the application and that the evidence will have to be heard."
Miss Wright's case appears from the Originating Application which incorporates a lengthy statement but the essentials of it are that Miss Wright who was employed by, it may be an organisation called "Sharjah Research" which is a limited company, or it may be by a Mr Pinder, who seems to have written the letter of engagement and perhaps used Sharjah Research as trade name. She was certainly working under the direction of Mr Pinder, who on Friday December 20th called her into his office and warned her about her time keeping. There is likely to be an issue about the justification for that process and perhaps about the manner in which it was done. However that may be it is clear from Miss Wright's Originating Application that she told her fianceé, the gentleman whose name I have already mentioned, Mr Borman-Schreiber, about what had happened that very same evening, and he went round to Mr Pinder's house and what happened there is obviously the subject of doubt and dispute between the parties. Miss Wright says in her Originating Application that in her presence her fianceé `phoned Mr Pinder and in calm and polite manner attempted to mediate and calm the situation down. She accepts in terms that Mr Borman-Schreiber requested Mr Pinder's address:
"as he was determined that this sort of attitude should not be transferred into our home and left in abeyance. He went to see Mike at his home in Boston Spa and I understand that a very heated argument ensued."
The reply in the Notice of Appearance accepts that there was that visit by Mr Borman-Schreiber to Mr Pinder's home and that there was indeed a heated exchange. It said:
"He forced his way in and was violent and abusive to the Respondent and his family."
Thereafter it is clear that Mr Pinder took exception to Miss Wright releasing the details of his home address and telephone number to Mr Borman-Schreiber and regarded that as a breach of her duty of confidentiality, and it seems equally clear that that was what led directly to her dismissal. In those circumstances one turns to see how far a Pre-hearing Assessment would be justifiable. That occurs, where appropriate, under Rule 6 of Schedule 1 to the Industrial Tribunals Rules of Procedure which provide as follows:(1) A tribunal may at any time before the hearing ........ consider, by way of a pre-hearing assessment, the contents of the originating application and entry of appearance, any representations in writing which have been submitted and any oral argument advanced by or on behalf of a party.(2) If upon a pre-hearing assessment, the tribunal considers that the originating application or the contentions or any particular contention of a party appear or, as the case may be, appears to have no reasonable prospect of success, it may indicate that in its opinion, if the originating application shall not be withdrawn or the contentions or contention of the party shall be persisted in up to or at the hearing, the party in question may have an order for costs made against him at the hearing under the provisions of Rule 11."the remainder is concerned with procedure.What is urged in favour of there being a Pre-Hearing Assessment in the Notice of Appeal before us, is that the response on behalf of Mr Pinder is not relevant to what she claims in her Originating Application, and cites a matter of which she has no personal knowledge and in any event:
"would be a civil/criminal matter outside the competence and jurisdiction of an Industrial Tribunal"
and it is also claimed:
"since she [the Applicant] has no means of combatting these allegations, a situation of [what is described as] unnatural justice would be created"
and finally that this evidence does not comply with the rules of evidence, and there is a reference to the well known criminal law case in the House of Lords Myers v. D.P.P. (1965) AC 1001.We have given careful consideration to these points and we are quite satisfied that the learned Chairman was entirely correct in deciding that no useful purpose would be served by having a Pre-hearing Assessment. It is plain from the way in which Rule 6(1) is phrased that a tribunal is not bound to hear a Pre-hearing Assessment if it is requested. The words are "a tribunal may at any time conduct such a pre-hearing assessment.We are satisfied that the evidence that would be given by Mr Pinder of what happened at his house between him and Mr Bernard Borman-Schreiber would not be hearsay evidence if it was given by anybody who was there present and gave direct evidence of what he or she saw. The reference therefore to Myers v. D.P.P. is beside the point. That it is relevant material is, we think, clear. It will of course be a matter for the industrial tribunal to assess how far it would be right for Miss Wright to be treated as responsible for anything that was done by her fianceé. That is not a matter upon which we can usefully say anything at this stage but as to the potential relevance of the events at Mr Pinder's house, there can in our view, be no doubt.Accordingly we dismiss this appeal against the Chairman's refusal to hear a Pre-hearing Assessment.