McAndrew v Chemical Bank & Anor [1994] UKEAT 299_94_0607

EAT
McAndrew v Chemical Bank & Anor
[1994] UKEAT 299_94_0607 · 1994-07-06
MR JUSTICE MUMMERY (PRESIDENT): There are two appeals in this case. The first is an appeal by Miss McAndrew, the Applicant in two applications against her former employers, the Chemical Bank. The first application alleges racial harassment, discrimination and victimisation contrary to the Race Relations Act 1976. The application has two Respondents, the Chemical Bank and Mr M Gelvin, alleged to have been involved in the discrimination complained of. The second application commenced in August 1993 alleges unfair constructive dismissal, unfair treatment, breach of contract, unreasonable conduct, failure to observe safety regulations, violation of human rights and failure to provide written reasons for dismissal. That application was originally against both Mr Gelvin and the Chemical Bank; Mr Gelvin has now been struck out as a Respondent.Miss McAndrew's appeal is against an Interlocutory Order of the Chairman of the Tribunal at London North on 28 January 1994. After the hearing attended by Miss McAndrew in person and a representative on behalf of the Bank, the Chairman made a number of Orders. Miss McAndrew wishes to appeal against the refusal of the Chairman to order certain further and better particulars and certain documents. The Notice of Appeal is in the form of a letter to this Tribunal dated 9 March. The relevant Orders appealed against are set out in a letter of the Regional Office of Industrial Tribunals dated 14 February.The second appeal is by the Bank against an Order made by the Industrial Tribunal at London North on 19 May 1994. The Order was made on the ex parte application of Miss McAndrew. By that Order the Tribunal ordered discovery of documents listed in a letter written by Miss McAndrew on 31 March. The Bank appealed against that Order by a Notice of Appeal dated 20 June. We have been informed by Mrs Williams, who appeared on behalf of the Bank, that the Bank is also seeking a review of that Order from the Industrial Tribunal. The fact that a review is pending does not preclude the Bank from pursuing an appeal to this Tribunal on the ground that there has been an error of law by the Tribunal in ordering discovery.Before we turn to the details of the law and the facts of the two applications, we should mention that, at the outset of the appeals, Miss McAndrew applied for an adjournment of the Bank's appeal. She was ready and willing to pursue her appeal, but submitted that the Bank's appeal ought to be adjourned for 7 days to enable her to prepare her arguments on the Bank's appeal. She pointed out, correctly, that the appeal was only dated 20 June. She was only given notice on Monday of this week that the Bank's appeal would be heard with her appeal today. She only received the outline argument relied on by Mrs Williams on Sunday evening. In these circumstances she had had no chance to take legal advice about the Bank's appeal. She argued that it was not fair to her, as a litigant in person, to expect her at such short notice to be ready to argue the response to the Bank's appeal.Mrs Williams opposed the application. She submitted that both appeals should be dealt with together. They are both between the same parties. They both relate to interlocutory orders. It would be undesirable to have them heard separately.After hearing the arguments we gave a decision that the application for an adjournment should be refused. The reason is that, although Miss McAndrew was only given notice of the hearing date at the beginning of this week, she is familiar with the facts and circumstances of the decision the Bank is appealing. The Order the Bank is appealing was made on Miss McAndrew's application. It is clear from the letter by which she applied for discovery on 31 March, that a considerable amount of thought has gone into the detail of the matter. Miss McAndrew was able to hand into us at the start of the hearing a typed document which sets out not only 8 paragraphs of argument as to why the appeal should be adjourned, but also two closely typed pages of comments on the Bank's case, in general, and on the Bank's appeal, in particular. We were satisfied, having looked at those documents in the circumstances described, that Miss McAndrew was able to respond to the points made on the Bank's appeal.We come to the nature of the applications and the facts which have given rise to them. It is pertinent to mention first that the Tribunal has powers to require particulars and to grant discovery. The powers are framed as a discretion and are contained in Rule 4 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Rule 4(1) provides:
"A tribunal may on the application of a party made either by notice to the Secretary or at the hearing of the originating application or of its own motion (a) require a party to furnish in writing to the person specified by the Tribunal further particulars of the grounds on which that party relies and of any facts and contentions relevant thereto (b) require one party to grant to another such discovery or inspection including the taking of copies of documents as might be granted by county court and may appoint the time within which and the place at which any act required in pursuance of this rule is to be done."
The first point to note is that the Tribunal and its Chairman had a discretion on applications for particulars and discovery and the second is that, in deciding whether or not to order particulars or discovery, the Tribunal must act in accordance with settled legal principles, such as a county court would act on in ordinary proceedings. As to the position of the Employment Appeal Tribunal on appeals from the exercise of discretions under this rule, we were referred to decisions setting out the general position. The first case is Medallion Holidays Ltd v Birch [1985] ICR 578 at page 584. The position was summarised by the Tribunal as follows:
"We therefore reject the argument that the appeal tribunal has power to review the interlocutory decisions of industrial tribunals upon their merits, regardless of whether any error of law is involved. Interlocutory directions on matters such as discovery or the granting or refusal of an adjournment or the striking out of an originating application or notice of appearance or any part thereof are wholly within the discretion of the industrial tribunal. It is a discretion with whose exercise we have no jurisdiction to interfere unless it can be shown to have been contrary to some established principle of law or to have involved a result at which no reasonable tribunal exercising the same discretion could have arrived."
That is an important reminder of the limited grounds on which we may question a decision of an Industrial Tribunal taken in the exercise of a discretion.The next case Byrne v The Financial Times Ltd [1991] IRLR 417 is helpful because it deals with appeals specifically on questions of discovery and particulars. The Tribunal said on page 419:
"General principles affecting the ordering of further and better particulars include that the parties should not be taken by surprise at the last minute; that particulars should only be ordered when necessary in order to do justice in the case or to prevent adjournment; that the Order should not be oppressive; that particulars are for the purposes of identifying the issues, not for the production of the evidence; and that complicated pleadings battles should not be encouraged. Indeed, justice is not infrequently achieved by limited, though sufficient, pleadings followed by a hearing at which any problems which arise can be dealt with by adjournment or further interlocutory Orders, together in any event with a sanction of costs."
Having made those helpful remarks about the nature of particulars and the undesirability of interlocutory applications getting out of proportion, Mr Justice Wood emphasised that the Tribunal's discretion could only be faulted if it were shown that there was an error of principle or that the decision on particulars was a perverse one.The only other case to which we were referred is an important reminder of the limits of discovery, Carrington v Helix Lighting Ltd [1990] ICR 125. That case indicates, consistently with principles in litigation generally, that neither discovery nor particulars will be ordered simply as a means of providing evidence to a party. In particular, there is no power in an Industrial Tribunal to order the production of evidence or to make an Order which has the effect of requiring a party to bring documents into existence for the purposes of the proceedings, since such an Order would be in the nature of compelling a party to create and disclose evidence.The case emphasises that it is an important factor in the exercise of discretion that an Order for particulars or discovery should not be oppressive to the party against whom it is made. Orders for particulars ought only to be made if they are necessary for the purposes of clarifying or providing essential information about the allegations which a party is making against the other. Particulars are not appropriate for identifying witnesses, disclosing evidence or arguing points of law. Discovery similarly ought only to be ordered in respect of documents where it is necessary for those documents to be produced for the purposes of deciding the case.With those general principles in mind we look at the two appeals. First the appeal by Miss McAndrew. The background to the appeals is that Miss McAndrew had been employed as an executive secretary by the Bank from May 1990 until the middle of July 1993. The circumstances of her departure are in contention. Her departure appears to have been preceded by disciplinary hearings, suspension on pay, illness on her part and various incidents which have given rise to disputes of fact in the pleadings. She complains both of race discrimination and unfair constructive dismissal. It appears that from the beginning she has been handling her own case. This gives rise to difficulties all round.The Industrial Tribunal, like this Tribunal, does its best to help people who are not represented. In a set of proceedings like this, when many matters are in dispute, it is difficult for an unassisted litigant such as Miss McAndrew to tell the difference between what are appropriate Orders for particulars and discovery and what are not. During the course of this hearing we have tried to be sympathetic to her position. In that light we have looked first at the question of particulars.On 1 October 1993 Miss McAndrew sent to Eversheds Phillips & Buck solicitors for the Bank, a request for further and better particulars running to 17 paragraphs. Eversheds responded on 7 October, dealing with each request paragraph by paragraph and taking many times the point that the request made was not a proper request for particulars, since what were sought were either matters of evidence or questions of law. As the particulars requested were not provided the matter was raised by Miss McAndrew at the Interlocutory Hearing before the Chairman of the Tribunal on 28 January. In the decision of the Tribunal recorded in the letter of 14 February the request for particulars was dealt with in this way. Save for the first request for particulars in the Applicant's letter to the Respondents' solicitor dated 1 October 1993, no Order was made in respect of the other particulars requested as they were requests for evidence or matters of law.In addition to the requests of the letter of 1 October Miss McAndrew also orally requested at the hearing particulars of the qualifications of other secretaries employed by the Bank while she was employed by the Bank. A letter from the Regional Office of the Industrial Tribunals at London (North) confirmed on 15 June that that request was made and refused. An appeal against that refusal is included in this appeal.In support of this appeal for particulars Miss McAndrew has stated that she needs to have these particulars in order to make sure that the case is properly prepared and conducted and in order to avoid possibly having to ask for an adjournment of the hearing, because she has not got the necessary information. The requests can be dealt with quite briefly. Dealing first with the request for the qualifications of the secretaries, we are unable to see how that is relevant to the issues. Miss McAndrew has already been provided with information that was relevant with regard to her comparators. We do not see how it would be relevant to the issues in the case to produce this set of particulars about all the other secretaries. We are told that there are more than 60 people who fall within this category and that it would be oppressive to have to produce the particulars. Quite apart from the considerations of oppression, we are satisfied that the request for qualifications is not really relevant to the issue in the case about Miss McAndrew's performance, a matter on which she was disciplined; the issue does not concern her qualifications. It is difficult to see how the qualifications of other secretaries could possibly be relevant to this issue between her and the Bank.As to the other particulars we find it difficult to see how any of them relate to the issues between the parties. It is unnecessary to go through each request item by item. An example of the kind of request which is made and has been disallowed, rightly in our view, is request number 4 which is in this form:
"How is it intended to contend that I had no contractual right to a witness in view of the express clause in that contract specifying the right to be accompanied? How is it intended to contend that the contract was not breached when the first stage of the Disciplinary Procedure was not conducted by my line managers as specified in the contract?"
The Bank's solicitors were quite right to deal with that request by saying that it was a question of law, assuming it is a question that is relevant, which can be dealt with at the hearing. It is not appropriate to particulars. All the other requests either fall within that category or fall within the description of a request for evidence.Having heard all of Miss McAndrew's arguments on the individual items on which she has concentrated, we are unable to find an error of law in the way in which the Tribunal has exercised its discretion in refusing to order the particulars. Miss McAndrew attempted to make a special argument for herself as a litigant in person. She said she could not be expected to know the law. If she was not forewarned the case would have to be adjourned, since she was entitled to have adequate warning of points for consideration. This is a misunderstanding about the position of an unrepresented person in litigation. The rules are equally applicable to people who are represented or not represented, subject to the consideration that Industrial Tribunals and, in particular, the Chairmen do the best to understand and be sympathetic with the difficulties of unrepresented people. But different sets of rules cannot be applied according to whether one is represented or not.The second part of Miss McAndrew's appeal related to a request for discovery of documents which was not allowed by the Chairman. The request for the production of documents was made, as set out on page 19 of the EAT bundle. There were 10 headings of documents. When the matter came before the Chairman at the Interlocutory Hearing on 28 January an Order was made for disclosure of documents as requested under headings 1, 2 4 and 5, number 5 being limited to the disclosure of the attendance record of one named person, Josephine Freeman. Miss McAndrew was asking for disclosure of attendance records for the whole legal department, plus computerised print-outs of security pass usage for a period running from July 1991 to date.The documents requested in the form of computerised print-outs of security pass usage for that department was refused. It was said by the Chairman that Miss Freeman's attendance records were sufficient to establish her absenteeism. The Chairman also held that all the other documents requested, including, in particular, documents relating to redundancy from January 1991 were not relevant to the issues in the case and should therefore be refused. That decision is recorded in paragraph 9 of the letter of the 14 February. Miss McAndrew pursued her claim for the documents, in particular documents relating to the redundancy policy, because she had not been replaced and because she said two managers were dismissed on redundancy grounds, but Jewish Americans were appointed to replace them or were retained. She pressed for the attendance records and time-keeping records in the computerised system and for documents in relation to the work permit of Jane Mecz. She no longer pressed for documents relating to health and safety requests.Again we do not find it necessary to go into the details of all the categories of documents with which the Tribunal Chairman was concerned. We are, satisfied from having considered the papers and the arguments, that it is not necessary for the determination of the issues in these proceedings for these documents to be ordered to be discovered. In the case of some of the documents it would be too onerous to require the extent of discovery requested; for example, in relation to the computerised records. The important point, however, is that in relation to all of them the Tribunal had a discretion. In the exercise of that discretion the Tribunal considered that it was not necessary to order their production. We are unable to identify any error of law by the Tribunal in the way that it exercised that discretion.For those reasons we conclude that Miss McAndrew's appeal should be dismissed. We can be more brief in considering the Bank's cross-appeal. I have already mentioned the dates of the application and the Order and the Notice of Appeal which bring this matter before the Appeal Tribunal. In the letter of 31 March, in which Miss McAndrew made the application for further discovery, she listed in 11 paragraphs documents of many different descriptions. Starting with specific documents, such as a copy of her full handwritten application for employment form and a copy of her job description at the commencement of her appointment in May 1990, she went to larger classes of documents, including copy of the fax transmission summary sheets with corresponding audited accounts for a period between January 1992 until May 1993, showing the number and length of faxes sent by her and by her comparators monthly. In paragraph 6 she asked for copies of computerised records from August 1991 to May 1993, giving a breakdown of the calls made to and received by all extensions in the legal department which should indicate the few or only people who were present in the legal department during certain periods; she asked for extracts from the Bank's telephone directory as at 20 June 1991 and 30 September 1991 listing the legal department and its members where she worked and so on.The Tribunal ordered the discovery of all these documents on Miss McAndrew's ex parte application. The Bank state as their ground of appeal against the decision that the documents requested in the letter of 31 March went further than necessary to dispose fairly of the matter. Certain of the documentation are irrelevant to the issues in the case which are limited to matters of unfair dismissal and racial discrimination. In support of the Bank's appeal Mrs Williams submitted that no reasonable Tribunal could, on a correct appreciation of the law and the issues in the case, have made such a wide ranging order for discovery. The documents included in the Order were either irrelevant or were not necessary for the resolution of the issues. The scope of the orders was oppressive.Against that, Miss McAndrew argued that she needed these documents to prepare her case. They were particularly relevant to the part of her case which deals with the extent to which she worked harder than other people in the department. The decision of the Chairman should not be interfered with by this Tribunal on the same reasoning as we declined to interfere with the Chairman's decision not to order the particulars and discovery at the earlier interlocutory hearing. We appreciate the force of the latter point. For the reasons mentioned, as appears from the authorities cited, this Tribunal is wary of interfering with the exercise of any discretion particularly on an interlocutory application.Having looked however at these classes of documents described in the letter of 31 March, we have reached the conclusion that, if the Tribunal had had the benefit of submissions from the Bank about the wide-ranging nature of discovery sought, no reasonable Tribunal would have made that Order. We state again that discovery ought only to be ordered where it is necessary. Otherwise, it is oppressive to the party against whom discovery is ordered. It is oppressive to the Tribunal to have many documents produced which are not relevant or are of only marginal relevance. Ultimately it is oppressive to the person bringing the case, because of the expenses and delay involved in making applications for wide-ranging discovery and in complying with them. We agree with the approach stated by Mr Justice Wood in the case of Byrne v Financial Times that interlocutory battles of this kind should not be encouraged. In fact, we go further and say they should be discouraged. The important point in proceedings of this kind, whether for race discrimination or unfair dismissal, is to get the case on for hearing as soon as possible; to hear the evidence and submissions and reach a decision. If it is found at the hearing that justice cannot be done without making further orders, such as for discovery, the Tribunal at the hearing is well placed to decide whether such orders are needed and, if they are, an adjournment can be granted for them to be complied with.We emphasise this point because this is the third time in the last week and a half that this Tribunal has been concerned with interlocutory appeals against particulars. In each case the appeal has taken considerable time and has been unsuccessful. In the general run of things, such appeals are likely to be unsuccessful because Parliament has entrusted the Industrial Tribunal with the wide powers of deciding these interlocutory matters. We hope that in this case Miss McAndrew will now concentrate on bringing the matter to the Tribunal for a hearing with her witnesses and the Bank's witnesses. At the hearing she will be able to ask the Bank's witnesses the questions she wants to ask. She will be able to give the evidence to the Tribunal that she wants to give. If the Tribunal finds at the hearing that more documents need to be produced by the Bank then the Tribunal can require it. We would therefore discourage further interlocutory applications in this matter, unless they are necessary. These applications were not necessary, nor was this appeal by Miss McAndrew. Her application for further discovery, which has given rise to the Bank's successful appeal, has added to the time and money spent on the case to no effect.For all those reasons we shall dismiss Miss McAndrew's appeal against the Order of 28 January and we shall allow the Bank's appeal against the Order of 19 May.One final matter we would mention, having spent most of the day on this case, is that Miss McAndrew might seriously consider seeking assistance on the preparation and presentation of her case from someone professionally trained or qualified. When this matter comes on for hearing she may find the burden of it is greater than she can reasonably be expected to bear. The case may go on for a number of days. It really does require somebody with training or experience to put across what the case is about. It is, of course, entirely a matter for Miss McAndrew. We make that comment intending to be helpful before the hearing starts.