Ministry Of Defence v Meredith [1995] UKEAT 1110_94_1702

EAT
Ministry Of Defence v Meredith
[1995] UKEAT 1110_94_1702 · 1995-02-17
MRS JUSTICE SMITH : This is an appeal by the Ministry of Defence (MOD) from an interlocutory decision of an industrial tribunal dated 6th September 1994 and confirmed on review on 3rd November 1994. The Tribunal ordered the production for inspection of several classes of documents sought by the respondent Miss Meredith in support of her claim for compensation for dismissal from Army service in 1986 on the ground that she was pregnant, such dismissal being an act of unlawful discrimination contrary to the Equal Treatment Directive, 76/207/EEC .The respondent's originating application of 14th December 1993 states that she joined the Women's Royal Army Corps in 1980. In 1986 she became pregnant and on 26th September 1986, pursuant to Queen's Regulations, she was dismissed from the service for that reason. She claims that her dismissal was an act of unlawful discrimination. She alleges that she has suffered loss and damage including injury to her feelings. Further she claims that she is entitled to aggravated damages `because of the high handed treatment of her, in that she was advised by her Medical Officer that if she really wanted to continue with her career, she should have her pregnancy terminated'. The application also claims exemplary damages.The appellants did not file a Notice of Appearance, but wrote to the Tribunal saying that, subject to confirmation of some factual matters, they were prepared to pay compensation to the respondent. They asked that the application be stayed for two months to permit further enquiries to be made. That letter has been treated by both parties as an admission of liability. The letter gives no indication of the issues which might arise at the hearing on the question of quantum.On the respondent's written application for discovery of documents, the Chairman ordered the production of five classes of document. Following an oral hearing by way of review, he confirmed his order, save for an immaterial amendment. He gave brief reasons for his decision. This appeal relates to only two of the classes of document covered by the order. The appellants are content to produce the others. The appellants were directed to produce the documents which are the subject of this appeal by an order in the following terms:
"In exercise of the powers conferred on the Industrial Tribunals by Rule 4 of Schedule 1 of The Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 , you are hereby required, on or before 26.9.94 to produce for inspection at the Ministry of Defence ....the following documents:
(iv) All or any documentation relating to any committees, discussion groups, management meetings (both single force or multi-force committees) which relates to the question of Servicewomen's right to return to work following discharge on pregnancy and/or the implementation of the European Equal Treatment Directive 1976 .(v) All or any documentation produced from any discussions which took place within the Forces in relation to Servicewomen's right to return to work following discharge on pregnancy and/or the implementation of the European Equal Treatment Directive and/or any documentation relating to an understanding of the above."Before turning to the grounds of appeal and the arguments advanced before this Appeal Tribunal, it is convenient to dispose of two matters on which there has been agreement. The order, as made by the Chairman, directed production of documents for inspection but made no provision for discovery by list. Thus there was no opportunity to claim privilege or public interest immunity. Both parties agree that this should have been done. In any case in which the possibility exists that such claims might be advanced, an order under Rule 4 should be made, as it is in the County Court under CCR Order 14, by providing first for discovery by list and then for production for inspection after an interval of several days. Mr Richards for the appellant does not seek any amendment of the order for production of those classes of documents in respect of which he does not appeal. But if an order is made in respect of any of the documents in paragraphs (iv) or (v), the parties agree that the order should provide for discovery and inspection in separate stages.The second matter which became the subject of agreement during the hearing relates to those documents in both paragraphs (iv) and (v) which refer to servicewomen's right to return to work following discharge on pregnancy. The respondent wanted discovery of these documents because her representatives believed, from experience of other similar cases, that the MOD would seek to argue that the respondent had failed to mitigate her loss by applying to re-enlist after the birth of her child. At the commencement of this appeal, it was not clear whether the Ministry intended to take this point. After the short adjournment, Mr Richards informed the respondent, on instructions, that the point would not be taken. The respondent therefore no longer seeks discovery or production of documents relating to a servicewoman's right to return to work following discharge for pregnancy. We are concerned only with documents relating to the implementation of the Equal Treatment Directive 1976 .Under the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 , there is no requirement upon parties to provide voluntary discovery of documents. Under Rule 4(1)(b) of Schedule 1 of these Regulations, the tribunal may make such an order for discovery of documents as may be made by the County Court. Under the County Court Rules, Order 14 Rule 8, on hearing an application for discovery etc, the Court, if satisfied that the discovery, disclosure, production or supply sought is not necessary, or not necessary at that stage of the action or matter, may dismiss or adjourn the application and shall in any case refuse to make an order if and in so far as it is of opinion that discovery, disclosure, production or supply, as the case may be, is not necessary either for disposing fairly of the action or matter or for saving costs.The parties agree that underlying the right to discovery lies the pre-requisite that the document sought must be relevant to an issue in the case. The concept of relevance is to be widely construed as was established in the case of The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company 11 QB 55. But, even if the documents be relevant, discovery and inspection should only be ordered if it is necessary for the fair disposal of the case or for the saving of costs. It will not be ordered if the application is a fishing expedition.The respondent seeks to uphold the order for discovery of the documents relating to the implementation of the European Equal Treatment Directive 1976 as being relevant to her claims for exemplary and aggravated damages. Some explanation of the background will assist.For many years, Queen's Regulations provided that a servicewoman should be discharged from the service if she became pregnant. In anticipation of the Equal Treatment Directive 1976 , which was about to impose upon member states the duty to enact legislation providing for equal treatment of men and women in the employment field, the United Kingdom Parliament enacted the Sex Discrimination Act 1975 . Section 85(4) provided that the Act did not apply in relation to service in the armed forces. Thus, the provision in the Queen's Regulations relating to discharge on pregnancy, under which provision servicewomen were plainly treated less favourably than servicemen, was not unlawful under the 1975 Act. However, the Equal Treatment Directive 1976 which outlawed discriminatory treatment on the ground of sex, did not provide any such exemption for the armed forces. So, from the time it came into force in August 1978, the Queen's Regulations contravened the 1976 Directive.Over the years since 1978, thousands of servicewomen have been discharged on the ground of pregnancy. In 1991, two service women challenged the lawfulness of the Queen's Regulations and of their dismissals thereunder on the ground of pregnancy. The Ministry of Defence did not contest that application and the concession was embodied in an order of the court. This respondent is only one of many former servicewomen who have sought compensation since that time.The respondent now wishes to see documents which relate to the implementation of the Directive because these may throw light on the state of mind of the authorities during the period between 1978 and 1991 when the armed services continued to discharge women on the ground of pregnancy at a time when it was unlawful to do so. She contends that the extent to which the appellants were aware of the unlawfulness of the Queen's Regulations and their attitude towards the implementation of the Directive are relevant to her claims for exemplary and aggravated damages. She accepts that they would be of no relevance to her claim for compensatory damages awarded on ordinary principles.At the Review hearing, the Chairman said:
"I think it right that the prevailing attitudes in the minds of the (MOD) as indicated in the documents of which discovery is sought is a factor which the tribunal will have to bear in mind in relation to assessing the compensation for injury to feelings, aggravated and exemplary damages. Without taking any view as to the latter issue, these are issues which are `in play' and hence it is right that following the principles as laid down by Megarry LJ in Rockwell Machine Tool Company Limited v. EP Barrus (Concessionaires) Limited (1968) 2 AER 98 that discovery is full, it should be granted. If the (MOD) deliberately knowing that their policy may well be called into question nevertheless determine to follow that policy then that may well be a factor to take into account in assessing damages. Hence this issue must be fully ventilated and can only be fully ventilated after a full discovery.
This Appeal Tribunal will only overturn the decision of an Industrial Tribunal Chairman on an interlocutory decision such as this if the decision is seen to be ultra vires, or based upon an error of law or is wholly unreasonable in the Wednesbury sense. Here the appellants contend that the decision is based upon an error of law; that exemplary damages are not available to the respondent and discovery should not be given in support. So far as aggravated damages are concerned, the appellants admit that the respondent is, in principle, entitled to claim them, but contend that as she has pleaded her claim for aggravated damages on the basis of a remark made to her by her medical officer, the documents sought are not relevant to any issue which may arise. Even if the documents may be relevant to an issue, the discovery sought is a fishing expedition and ought not to be granted. We turn therefore to consider first whether exemplary damages are `in play'.Exemplary damages.It is common ground that compensation for breach of the Equal Treatment Directive 1976 must be full compensation. In Marshall v. Southampton Health Authority (No 2) (Case C 271/91)(E.C.J.) reported at [1993] ICR 893 , at page 932A, the Court said:
"25. ....in the event of a discriminatory dismissal contrary to Article 5(1) of the Directive, a situation of equality could not be restored without either reinstating the victim of discrimination or, in the alternative, granting financial compensation for the loss and damage sustained."
"26. Where financial compensation is the measure adopted in order to achieve the objective indicated above, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules."
May that full compensation, assessed in accordance with national rules include an award of exemplary damages? Mr Richards, for the MOD, submits that exemplary damages will only be awarded under English law in respect of a tort for which such an award was made prior to 1964. That he submits is the effect of the speech of Lord Devlin in Rookes v. Barnard [1964] AC 1129 read together with the speeches of four members of the House of Lords in Broome v. Cassell & Co. Limited [1972] AC 1027 and as explained in A.B. and Others v. South West Water Services Limited [1993] QB 507 : see the judgment of Stuart-Smith LJ at page 523B, with which Lord Bingham MR agreed at page 530G and with which Simon Brown LJ also agreed. That decision is binding upon this Appeal Tribunal and has been followed by it on an earlier occasion in Deane v. Ealing LBC [1993] ICR 329 , a case under the Sex Discrimination Act 1975 . Mr Richards submits that a breach of the Directive is a form of statutory tort. As that tort did not exist before 1964, an award of exemplary damages cannot be made as part of the remedy for its breach.Mr Allen for the respondent accepts that the decision in A. B and Others supra is binding upon us. He also accepts that Deane's case is authority for the proposition that exemplary damages may not be awarded as part of the award for injury to feelings under the Sex Discrimination Act 1975 or the Race Relations Act 1976 . He submits that, as a requirement of Community law, exemplary damages are nonetheless available for a breach of the Equal Treatment Directive 1976 . He relies on Article 6 of the Directive which provides:
"Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by the failure to apply to them the principle of equal treatment within the meaning of ... Article 5 to pursue their claims by judicial process after possible recourse to other competent authorities."
Mr Allen accepts that it is for the member state to decide what judicial process it will make available for the redress of breach of the Directive, provided it meets Community law criteria. There are, he submits, two criteria which must both be satisfied. First there is the criterion of `sufficient enforceability', as stated in Von Colson v. Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891 at page 1908:
"23. Although, as has been stated..... full implementation of the directive does not require any specific form of sanction for unlawful discrimination, it does entail that that sanction be such as to guarantee real and effective judicial protection. Moreover it must also have a real deterrent effect on the employer. It follows that where a member state chooses to penalise the breach of the prohibition of discrimination by the award of compensation, that compensation must in any event be adequate in relation to the damage sustained."
Pausing there, we cannot see that the criterion of sufficient enforceability requires that the measure of compensation should include a punitive element or indeed any element over and above adequate compensation for the damage sustained. The reference to the award having a `real deterrent effect' on the employer is explained by the subsequent description of what is required as `adequate compensation for the damage sustained.'The second criterion which must be satisfied is the `criterion of comparability'. Mr Allen cited to us a passage from the Advocate General's opinion in Marshall v. Southampton HA (no.2) supra where at page 921 paragraph 20, the principle is stated thus:
"It entails that if more extensive compensation is provided for comparable infringements of national law - for instance, compensation in full, than the adequate compensation required by Community law, the more extensive compensation should also apply in respect of infringements of Community Law..."
It is to be noted that the Court did not refer to this principle in its judgment in the Marshall case. Indeed, the Court defined the duty of the national court as the provision of compensation for the damage actually sustained: see paragraph 26 of the judgment, supra. However, we are content to assume that the Advocate General's opinion contained an accurate statement of Community law. Mr Allen submits that our domestic law of tort does indeed provide for a more generous measure of damages than merely adequate compensation for the harm actually caused, in that it provides for exemplary damages. Thus, if such damages are available as a remedy in tort under the common law, they should be available for breaches of the Equal Treatment Directive .We reject that submission for two reasons. First, we consider that it is clear from the speeches in the House of Lords in Rookes v. Barnard and Broome v. Cassell , to which we have already referred, that exemplary damages are not generally available as a head of damage in tort, simply on the basis that the facts fall into one or other of Lord Devlin's categories. Such damages are available only in the restricted class of torts in which they had been awarded before 1964. It is clear there will be no extension of that class of torts as the law of tort develops. It is thus clear in our view that exemplary damages are now to be regarded as an anomaly and not as a regular part of the common law. Second, we consider that if the tort of breach of the 1976 Directive is comparable with anything, it is comparable with the statutory tort of discrimination under the Sex Discrimination Act 1975 . As exemplary damages are not available as compensation for that, they cannot be available for breach of the Directive under the criterion of comparability.In short, we accept Mr Richards' submission that there is no precept of Community law which requires the courts of this country to do more than provide adequate, that is full, compensation for the damage sustained and that such compensation is to be assessed on ordinary compensatory principles. There is no warrant for the suggestion that a punitive element should be included. In our judgment, exemplary damages are not available to this respondent and the Industrial Tribunal Chairman erred when he granted this discovery on the basis that the issue of exemplary damages was `in play'. The discovery granted may nonetheless have been properly granted if it is or may be relevant to the issue of aggravated damages and necessary for the fair disposal of the case or for the saving of costs.Aggravated Damages .It is common ground that in cases of discrimination under the Sex Discrimination Act 1975 and the Race Relations Act 1976 , an award for injury to feelings may include an element of aggravated damages. It is also accepted by the MOD that, as a matter of principle, an aggravated award for injury to feelings is available to this respondent for a breach of the 1976 Directive. As we understood the submissions of counsel, it was also accepted that injury to feelings (to include where appropriate an element for loss of job satisfaction, see MOD v Cannock [1994] ICR 918 ) is the only head of damage which could be increased in that way as such injury is the only head of damage to be assessed `at large'.Mr Richards submits that the respondent's claim for aggravated damages should be limited to her pleaded case, namely by reference to words spoken by her medical officer in suggesting, allegedly, that if she really wanted to continue with her career, she should have an abortion. Whether such a remark, if made, is capable of attracting an award of aggravated damages is a matter upon which we say nothing. The issues which concern us are first whether the respondent should be restricted by her own pleadings to claiming aggravated damages in respect of the effect of that remark. If she is so restricted, can the discovery of MOD and Armed Forces documents showing attitudes to the implementation of the Equal Treatment Directive be justified as relevant to those limited issues? If she is not so restricted, and will be entitled to draw to the Tribunal's attention all factors relating to the employer's conduct, motives and attitudes, would those documents be of possible relevance to the wider issues?In claims before an industrial tribunal, there are no formal requirements as to pleadings. However, the tribunal may on application require a party to provide particulars of its contentions. At the outset of this case, the respondent voluntarily explained the way in which she seeks to put her case for aggravated damages. Mr Richards has submitted that if she had not done so, the MOD would have sought an order for particulars. We think they would have been entitled to such an order if the originating application had merely made a general claim for damages, to include damages for injury to feeling including aggravated damages. It is only the applicant who can say how her feelings have been hurt and what particular aspects of the employer's conduct have increased her distress. If such be her case, the respondent should be expected to allege malice, the abuse of power or deliberate contempt for the requirements of Community law. We do not think an employer should be expected to deal with such serious allegations without prior notice. Thus we think it is not unjust, even having regard to the usual informality of pleading, for the respondent in this case to be held to her own statement of her case. Her counsel did not seek to amend the claim during the hearing before us. He asserted that she should not be bound by its limits. We think that she should be.Mr Allen submitted that even if the respondent were to be thus restricted in the way she put her claim for aggravated damages, the discovery would still be relevant and necessary for the fair resolution of the claim. He submitted that the underlying attitudes towards the employment of women and particularly mothers might be revealed by the documents and this might throw light upon why the medical officer made the alleged remark about termination of the pregnancy. Such a remark would be worse, and more likely to found an award of aggravated damages, if the official attitude had encouraged its making. We do not accept this argument but we shall seek to explain our reasons in the context of the wider argument to which we will now refer.We recognise that we may be wrong in considering that the respondent in this case should be restricted to the pleaded basis of her claim. We also feel it right to bear in mind the possibility that she may apply to amend the claim at some later date in order to rely upon a wider basis for claiming aggravated damages. She might seek and be granted leave to allege, for example, that at 1986, the date of her dismissal, the MOD dismissed her well knowing that their policy of dismissing pregnant servicewomen was unlawful. We think it right therefore to explain our reasons for concluding, as we have done, that this discovery is not relevant or necessary for the fair disposal of the claim even if the respondent is entitled to put her claim on that wider basis.In their recent Consultation Paper No. 132 `Aggravated, Exemplary and Restitutionary Damages', the Law Commission has summarised the basis on which aggravated damages may be granted. At paragraph 3.3 they said:
"In Rookes v. Barnard , Lord Devlin said that aggravated awards were appropriate where the manner in which the wrong was committed was such as to injure the plaintiff's proper feelings of pride and dignity, or give rise to humiliation, distress, insult or pain. Examples of the sort of conduct which would lead to these forms of intangible loss were conduct which was offensive, or which was accompanied by malevolence, spite, malice, insolence or arrogance; in other words the type of conduct which had previously been regarded as capable of sustaining a punitive award. It would therefore seem that there are two elements relevant to the availability of an aggravated award; first exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong; and secondly intangible loss suffered as a result by the plaintiff, that is injury to personality."
This summary of the law was relied upon by the respondent and not criticized by the appellants before us. We are content to accept it.In our view the important factor which emerges from that recital is that there must be a causal connection between the exceptional or contumelious conduct or motive in committing the wrong and the intangible loss (in this case injury to feelings) suffered by the plaintiff. We consider that in order for the plaintiff's feelings to have suffered an increased or aggravated hurt, he or she must have had some knowledge of the conduct or motive which had caused that increase. It may not be necessary for him to know all the detail of that conduct or motive but there must be either knowledge or suspicion of it for the causal link to exist.This view is most clearly expressed in Lord Diplock's analysis in Broome v Cassell of the three types of general damage defined by Lord Devlin in Rookes v Barnard . At page 1124F, Lord Diplock described the first type of general damage as `compensation for the harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought.' Then at 1124G he said that the second type of damage was:
"Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or motive for which the defendant did it. This Lord Devlin calls `aggravated damages'."
The requirement of knowledge of the discrimination itself was recognised by the Court of Appeal in Alexander v. Home Office [1988] ICR 685 , a case of racial discrimination. At page 693C May LJ said:
"If the plaintiff knows of the racial discrimination and that he has thereby been held up to `hatred, ridicule or contempt' then the injury to his feelings will be an important element in the damages. That the injury to feelings for which compensation is sought must have resulted from knowledge of the discrimination is clear from the decision of this court in Skyrail Oceanic Limited v. Coleman [1981] ICR 864: see per Lawton LJ at p 871."
It appears to us therefore that knowledge of the wrong is necessary before the employee in a discriminatory dismissal case can show that his feelings have been injured by the tort. Whether it is sufficient that the employee knows that he has been dismissed or whether he must also know that the dismissal was unlawfully discriminatory, is not clear. However, it is clear that knowledge, or at least, suspicion of the improper conduct or motive of the employer is necessary before the employee can recover aggravated damages. Only then could he show, or have the inference drawn, that his sense of injury has been justifiably heightened by this conduct or motive.Let us consider the position of this respondent. It is clear that in 1986 at the time of her dismissal, the respondent was unaware that her dismissal was an unlawful act of discrimination. She knew she had been dismissed and her feelings may have been injured even though she did not know that her dismissal was unlawful. She may be able to claim damages for injury to feelings. Such injury may have been aggravated by the remarks of her medical officer. But they cannot have been aggravated by any improper conduct or motive on the part of her employer of which she was wholly unaware. Not being aware that the employer's conduct was even unlawful, she could not have even suspected any impropriety of conduct or motive. What she now seeks to do is to investigate the state of knowledge and attitudes of the MOD and Army authorities at the time of her dismissal in 1986 in the hope that she might then be able to allege that she had had greater grounds for suffering injury to her feelings than she had then realised. If there is such a thing as a fishing expedition for discovery this must be it.We refer back to the argument advanced by Mr Allen in support of his submission that the discovery granted was appropriate and necessary even if the respondent were to be limited to her pleaded case. Accepting, for the sake of argument, the premise that the medical officer's remark would be more serious in its aggravating effect, if it reflected a general attitude within the armed forces towards women with children than if it sprang only from his own prejudice and lack of sensitivity, we do not think that this respondent could rely upon that greater degree of seriousness as she was wholly unaware of any such general attitude and had no reason to suspect one. Should she now go fishing to see if a more serious attitude could be demonstrated? We think not. In any event, if she were to be entitled to seek discovery of documents which might reveal such an attitude, the classes of documents would have to be of very wide compass and should not be limited to the documents sought in this case which relate only to attitudes to the implementation of the Equal Treatment Directive . Such extensive discovery would be oppressive and could not possibly be justified on the slender basis contended for.In the result, we conclude that although aggravated damages may properly be said to be `in play', the documents sought could not have any relevance to the respondent's claim for such damages. The claim for discovery of these two classes of document is a fishing expedition designed to increase the damages on a basis which is not, in our view, open to the respondent as a matter of law.The appeal is therefore allowed.