Kowailw v Nylacast Oilon Ltd [1993] UKEAT 70_93_1511

EAT
Kowailw v Nylacast Oilon Ltd
[1993] UKEAT 70_93_1511 · 1993-11-15

JUDGE B HARGROVE QC:

This is an appeal against a refusal by the Industrial Tribunal Chairman to allow certain Further and Better Particulars and Discovery of Documents.The initial refusal occurred in a letter of the 12th November 1992 and the Assistant Secretary conveyed the Chairman's view in these words:
"the Chairman of the Tribunals has refused your request for the Tribunal to make an Order for Further and Better Particulars and Discovery of Documents. In his opinion this is an attempt to obtain evidence, which is not the function of a Further and Better Particulars or Discovery of Documents Order."
That was followed, on the 30th November, by a letter again from the Assistant Secretary in these terms:
"The Chairman of the Tribunals has seen the letter dated 25 November 1992 from the Respondents' Solicitors. He asks if you still wish to pursue the request for Discovery. If so, a meeting will be arranged for the representatives to attend to discuss the matter before the Chairman."
There then followed a letter of the 4th December 1992 from the Appellant's solicitors in which they set out certain reasons for requesting the Further and Better Particulars and for requesting the Discovery, completing the letter with this paragraph:
"In the light of the above, we would request a short appointment before the learned Chairman to elaborate further if required unless the Respondents are prepared, to review their position and to provide the outstanding particulars and documents on a voluntary basis."
There was no hearing.The Respondents today points out that there were the words "if required" but bearing in mind the combination of the two letters it would be reasonable for the Appellant's solicitors, to expect that they would have a hearing if there was any question of refusal. But the reply eventually arrived on the 8th December from the Tribunal saying:"Application refused. Orders are not necessary in a straight forward case such as this for the just disposal of the case. If, exceptionally, the need for further discovery arises, a further application can be made at the hearing".We regret to say that we consider that the Chairman erred in law in two respects. The first is he has taken a "blanket" approach, not considering the various items which have been placed before him for Further and Better Particulars or Discovery. Secondly, the position was that there was an error in that he acted contrary to natural justice in dealing with the matter without having afforded the solicitors to the Appellant any, or any adequate hearing. In those circumstances it is right that we review the matter today and that we now do. We have considered the request for Discovery of Documents and in this respect we have reached the view that subject to certain amendments they should be allowed.I turn to page 11 where item 5 of the Request for Discovery:
"Please supply copies of sales/productivity figures in the six months preceding the dismissal or any other documentation . . ."
We consider that goes too widely and the insertion of the word "directly" there will make this a proper request for Discovery at this stage.In respect of item 6:

"Please supply copies of all documents in the Respondent's personnel file . . ."

That should be limited by the insertion of the words "in relation to performance in connection with the Applicant".Item 7 we would allow in its entirety.Item 8:
"Please supply copies of all documents and letters intended to be used by the Respondent at the hearing. Within 14 days of the hearing date."
Turning now to the request for Further and Better Particulars. We consider that item 1:

"Please state the approximate date when the `downturn' began."

is a proper particular to be requested at this stage.We would also allow 3:
"When did the Directors first consider that a redundancy situation existed?
We disallow 5.Item 6:

"In what way was the Applicant `truculent' with other members of staff?"

Item 7:

"Who made the decision to dismiss?"

Item 8:
"What was the `triggering' event that led to the Respondent to implement the redundancy decision and not to delay it any further."
All those, we consider, are proper Particulars which will enable the Appellant here to understand the nature of the case he has to answer.Reverting for one moment to the Discovery issue it is sometimes forgotten that not only those items which are necessary for Discovery should be discovered. That is the first test. But there is no secondary test that it must be only those items which are supportive of a particular party's case. All documents ought to be discovered which either assist a particular litigant to support his case, or indeed, which assists the support of his opponent's case.For those reasons this appeal is allowed.