City Index Ltd v Pooley [1995] UKEAT 35_95_0803

EAT
City Index Ltd v Pooley
[1995] UKEAT 35_95_0803 · 1995-03-08
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against an interlocutory order made by the Chairman of the Industrial Tribunal sitting at London North for the inspection of documents.The order was made in proceedings for unfair dismissal brought by Mr David Pooley against City Index Ltd. He claimed in an originating application presented to the Industrial Tribunal on 28th May 1993 that he had been employed as administration director of that Company with responsibility for all aspects of its administration from October 1988 down to 5th March 1993.The claim is resisted. These proceedings are not the only proceedings between these parties relating to the disagreements that have arisen between Mr Pooley and City Index Ltd. It is not necessary to go into the details of these proceedings or into the details of the other proceedings in order to dispose of this appeal.On 9th November 1994 there was a hearing for directions held by the Chairman of the Tribunal. It was attended by Mr Morton on behalf of the Mr Pooley and by Mrs Mahoney on behalf of City Index Ltd.Before the hearing, there had been correspondence between the parties and between the parties and the Tribunal about the directions that were sought. Among the directions sought by Mr Pooley were orders under Rule 4(1)(b) of the Industrial Tribunals Rules of Procedure [1993]. Rule 4(1)(b) empowers a Tribunal, on the application of party, either by notice to the Secretary or at the hearing of the originating application or of its own motion, to require one party to grant to another such discovery or inspection, including the taking of copies of documents, as might be granted by a County Court.A letter had been sent by Mr Pooley's solicitors to the Industrial Tribunal on 12th August 1994 making an application that City Index Ltd send within 14 days a list of such of the documents in the enclosed schedule as are or have been in their possession or power and for production of the documents for inspection at the offices of Mr Pooley's solicitors within 14 days of the discovery and for permission for copies of documents to be taken. A copy of the application was sent to the solicitors for City Index Ltd.The Industrial Tribunal acknowledged the letter requesting an Order for Discovery and Inspection and said it had been referred to the Chairman of Tribunals. He asked the Secretary to write and say that the request for Discovery and Inspection should first be made to City Index Ltd. If they refused the request without good reason the application would then considered by the Tribunal.The application was considered by the Tribunal on 9th November. The Tribunal notified the parties, by a letter dated 21st November of the following directions:
"(b) The Respondents are Ordered, within 14 days from the receipt of this letter, to allow the Applicant to inspect and take copies of the following documents:-
1 The documents listed in the schedule marked(a) (A) with pages numbered 2-25 and the documents listed in the schedule marked(b) (B) with pages marked 1-9, copies of both schedules are sent herewith."To make sense of that Order it is necessary to refer, first, to the schedule marked (A). It is common ground between the parties that schedule marked (A) is a list of documents delivered by City Index Ltd in proceedings in the High Court Queen's Bench Division, between City Index Ltd and Mr Pooley. The distinctive number of the case is 1993 C No. 1264. The list of documents is in standard form enumerating in Schedule 1 a list of the documents in the possession power and custody of City Index Ltd relating to matters in question in the action, stating in paragraph 2:
"The Plaintiff objects to produce the documents enumerated in part 2 of the said schedule 1 on the grounds that they are by their nature privileged and free from production"
Pages 2-25 referred to in the letter of 21st November consists of part 1 of the first schedule. Part 2 of the first schedule, referring to documents the production of which is objected to on grounds of privilege, is on page 26 and was therefore not covered by the Direction for Inspection given by the Chairman. Part 2 contains in paragraph 2 a description of the following documents for which privilege is claimed: correspondence between the plaintiff (that is City Index Ltd) and its solicitors, notes, memoranda, instructions to Counsel, draft pleadings, accountants advice including correspondence between the Plaintiff and Messrs Cripps Harris Hall, being documents containing information by its very nature is subject to legal professional privilege.The Chairman's direction then refers to the documents listed in Schedule (B) pages numbered 1-9. Schedule (B) is a list of documents separate from the Queen's Bench List. It is headed Schedule of Documents Sought by the Applicant and contains two columns, Description of Document and Date. The difficulty that has arisen is that City Index Ltd contend that some of the documents contained in list (B) are the subject of legal professional privilege. Some of those for which legal professional privilege is claimed fall within the description of document in part 2 of schedule 1 of the Queen's Bench list, which the Chairman had not ordered to be produced when dealing with the list (A) Queen's Bench list.Examples have been given by Mr Perkoff who appears for City Index Ltd. Just by way of example he has referred to the documents in schedule (B) numbered 28, 32 and 58. They consist of letters between a Mr Spark and a Mr Stonor at Cripps Harries Hall.The question is whether it was the intention of the Chairman, in the Direction notified by letter 21st November, to order inspection of documents for which legal professional privilege is claimed.The receipt of the letter of 21st November was followed by correspondence between the solicitors for City Index Ltd and the Tribunal.A letter was written on 5th December 1994 by Messrs Rakisons, City Index Ltd's solicitors, saying this:
"Further to your letter of 21st November 1994 please find enclosed copy letter we have forwarded to Messrs Hextall Erskine. With reference to the final paragraph of your letter of 21st November 1994 we would like to raise the following queries and/or apply for further Directions in respect of this matter."

[and they say in paragraph 2]

"Documents not produced. We understand that at hearing individual documents in both Schedules A and B were not discussed. Messrs. Hextall Erskine & Co are aware that certain of the documents referred to in the Schedules produced to the Industrial Tribunal are documents for which City Index Limited claim privilege. So far as we are aware the Industrial Tribunal only has the power to grant discovery in accordance with the County Court rules which of course do not extend to disclosure of privileged documents. In those circumstances we would appreciate it if the Chairman could confirm that we are not obliged to produce such documents. Certain of the documents referred to in Schedule A and B are irrelevant and again we would appreciate it if you could confirm that it is not necessary for us to produce those documents."
A letter was sent to Messrs Rakisons by the Industrial Tribunal on 29th December 1994 which reads as follows:
"The Orders of 9 November 1994 recorded in the letter of 21 November 1994 were made at a hearing at which the Respondent was represented by a solicitor, Mrs Mahoney. She said " I claim privilege, but I am not in a position to specify for what or on what ground" . Accordingly the Chairman made the Orders."
"The orders stand, until and unless you take any steps which you may be advised are open to you."
"In the meanwhile the Tribunal has received a request from the Applicant's solicitor that your Notice of Appearance be struck out for failing to comply with the Orders."
"A Hearing will be arranged to be attended by both parties at which you will be given the opportunity to show cause why your Notice of Appearance should not be struck out and why you should not be debarred from defending altogether."
On 11th January 1995 a Notice of Appeal by City Index Ltd was signed by the solicitors. It was served on the Appeal Tribunal on 12th January. In the Notice of Appeal it is stated that City Index Ltd appeals from the decision of an Industrial Tribunal sitting at Whittington House on 29th December the effect of which is that the applicant is obliged to produce for inspection by the Respondent documents for which the Appellant claims legal professional privilege. A copy of the letter dated 29th December together with the letter of 5th December was attached to the Notice of Appeal.

It is then stated that

"The grounds on which the Appeal is brought are that the Industrial Tribunal erred in law in that the effect of the Order made on 9th November 1994 set out in the Industrial Tribunals letter of 21st November 1994 is to compel the Applicant to produce documents to which legal professional privilege attaches. The Tribunal did not consider the specific documents in question and accordingly could not and did not determine whether or not the documents were privileged. By the Appellants solicitors letter to the Tribunal dated 5th December in accordance with the Tribunals letter of 21st November 1994 ... The Appellants sought clarification that the Order as drawn did not compel the Appellants to produce privileged documents. The Tribunal responded by letter dated 29th December 1994." [ and that letter is then quoted]The Notice of Appeal states in the alternative that:
" ... if the Employment Tribunal find that the decision was made on 9th November 1994 or 21st November 1994 the Appellant herein applies for leave to appeal out of time upon the basis that it is contrary to the interests of justice to allow legal professional privilege to be breached. [it is stated that] No Appeal was lodged within the time limit as the Respondent's solicitors were awaiting the Tribunals reply to their letter of 5th December 1994 and the letter of the 29th November arrived whilst the solicitor with the day to day contact of this matter was absent from the office. She did not return to the office until 9th January 1995 and this notice was drafted as soon as reasonably practicable thereafter. In the first instance it was not deemed appropriate to Appeal because of the Tribunals direction in their letter of 21st November 1994 that any queries be raised with them and the question of whether or not at that stage there was a right of appeal."
The letter of the 21st November had concluded with these last two lines:
"If any queries arise on this letter or any further directions are required, application should be made as soon as possible."
On the same day as the Notice of Appeal was signed and dated, a letter was sent by City Index Ltd's solicitors to the Industrial Tribunal applying for a review of the Decision in relation to the inspection of documents under Rule 11(1) of 1993 Industrial Tribunal Rules. The ground of the application was that contained in Rule 11(1)(e), "that the interests of Justice require such a review".Details were given of the grounds for the review. First, that at the hearing for Directions held on 9th November that Chairman, although made aware of the Respondents claim to privilege in respect of various documents, did not consider the documents in respect of which the Applicants sought discovery and in respect of which the Respondent claimed privilege and therefore could not, and did not, determine whether such documents were privileged. Secondly, the Chairman did not have the power to order discovery or inspection of privileged documents. As the Chairman did not review the documents for which the Respondent claimed privilege the Chairman was not empowered to order discovery of those documents. The rest of the letter sets out further background information and the arguments upon which the solicitors for City Index Ltd seek a review.The review has not taken place because by reason of defamation proceedings pending in the High Court between these parties, the Unfair Dismissal proceedings have been stayed.It is in those circumstances that this Appeal has been brought. It has taken a whole morning to deal with. Interlocutory appeals do not deserve that kind of time when we have hundreds of cases waiting on substantive matters. We are grateful to the parties for clarifying their positions in Skeleton Arguments and by oral submissions. Early on in the hearing we suggested what appeared to us to be a satisfactory way of the parties disposing of this interlocutory matter by agreement; that we make no order on this Appeal, that the order of Chairman be stayed, so far as it related to documents for which legal professional privilege was claimed, and that the matter be remitted to the Industrial Tribunal for the disputed questions of privilege to be dealt with by the Tribunal in the course of the substantive hearing of the case.We appreciated when we made this suggestion that such an order could not be imposed on the parties. It depended upon agreement. No agreement was forthcoming from those who represent Mr Pooley.We therefore proceeded to the hearing of the Appeal. Mr Morton on behalf of Mr Pooley took three points. First, that the Appeal was out of time and there was no good ground for extending time. Second, that there was no error of law; and thirdly, that legal professional privilege did not in the circumstances apply.We heard argument only on the first point. We are able to dispose of this Appeal simply by deciding the first point.The argument that the Appeal is out of time is based on the Rules of the Employment Appeal Tribunal. Rule 3 provides in sub-rule 2:(2) The period within which an appeal to the Appeal Tribunal maybe instituted is 42 days from the date on which extended written reasons for the decision or order of the industrial tribunal were sent to the appellant ..."There is a power to extend the time for appealing. Rule 37 provides that:
"37. - (1) The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged, and the date appointed for any purpose may be altered by order of the Tribunal."
Mr Morton's submissions were that the order of Industrial Tribunal was sent to the parties on 21st November. Any Appeal ought to have been lodged by the Appeal Tribunal by the beginning of January 1995. The Notice of Appeal was not served on the Employment Appeal Tribunal until 12th January 1995. It was out of time. It does not conform to the requirements of the Rules. The Appeal should therefore be dismissed. He argued that there should not be any extension of time granted. He referred in oral argument to the recent decision of this Tribunal which reviewed the authorities relating to the extension of time. The case of the United Arab Emirates which repeats what has been said over many years "that extensions of time are only granted in exceptional circumstances". There must be a good excuse as to why the Appeal was not brought within time.Mr Morton's case therefore was we should dismiss the Appeal as being out of time.Mr Perkoff addressed this part of the case in a helpful argument. He reminded us that the letter of 21st November 1994 expressly invited queries to be taken up. His solicitors took up that invitation, in the letter of 5th December. They sought clarification of the position, as regards the inspection of privileged documents. It was not until the 29th December that the Regional Secretary replied confirming that the order did extend to the documents for which legal professional privilege was claimed. The reply was received while the solicitor dealing with the matter was away. As soon as she returned the matter was dealt by the preparation of the service of the Notice of Appeal.Mr Perkoff's primary submission was that the Notice of Appeal was within time. It was within 42 days of the letter 29th December 1994, which he submitted contained the directions which were appealed against. Alternatively, if the Notice of Appeal was out of time an extension of time ought be granted, because there was no prejudice to Mr Pooley. The hearing of the Industrial Tribunal initially fixed for 13th March had been stayed until after the determination of the defamation proceedings referred to, so that the parties would be able to have the issue of admissibility determined before the hearing. Only a small number of documents are involved. He submitted that there was a reasonable excuse for the delay, in that if the document recording the order was letter of 29th November, his clients had requested timeously clarification which was only received on 29th December. It was to be assumed that that arrived on 30th December, the last working day before the 3rd January. That was when the solicitor having contact with the matter was away over the long Christmas break. There were other particular difficulties which he refers to. It was not until the solicitor returned on 9th January that the view was taken that the effect of the letter of 5th December was that legally privileged documents would indeed have to be disclosed as a result of the order communicated on 21st November. An Appeal was lodged within just over a week of the time expiring.He submitted finally that the issues involved in the Appeal are of fundamental importance. There is a public interest in the administration of justice, which demands that documents subject to legal professional privilege should be withheld from the Court.We can state our decision shortly. This Appeal should be dismissed. It is out of time. Time began to run on 21st November 1994. That was the date on which the written reasons for the decision were sent to the parties. The Appeal was not served within 42 days of 21st November. It is not possible for a party, by seeking clarification of certain matters arising on an order, to extend the time for appealing. What should have been done, while the queries were being raised, was for a notice of appeal to issued pending final clarification by the Tribunal.There are no grounds for extending the time. No reasonable excuse has been provided for not putting in a Notice of Appeal within time. We understand the explanations which are offered, but they do not amount to excuse. City Index Ltd was legally represented and advised. The advisers are deemed to know the 42 days for bring an appeal. They are deemed to know of the strictness with which that rule is applied by this Tribunal.We therefore dismiss the appeal as being out of time. We do not go into any of the further points as to whether the decision reveals an error of law. We express no concluded views about the matter of claims for legal professional privilege.We do, however, propose to add to our order dismissing the appeal this direction which we make under paragraph 21 of Schedule 11 to the Employment Protection (Consolidation) Act 1978. Under that the Appeal Tribunal has powers:
"21 (1) For the purpose of disposing of an appeal the Appeal Tribunal may exercise any powers of the body or officer from whom the appeal was brought ..."
We shall stay the Order for inspection of documents contained in the letter of 21st November 1994, so far as it relates to documents for which City Index Ltd claims legal professional privilege. That stay is to remain in force until the Tribunal has given a decision on the application for review made by the letter of 11th January.It is not for us to decide how the Tribunal should exercise its powers on the application made under rule 11 of its rules. But we have heard enough argument and seen sufficient documents during the course of the hearing of this appeal, to be able to indicate to the Tribunal that there are, in our view, grounds for contending that the Chairman may, for lack of assistance from City Index's solicitor at the hearing, have made an order wider than he intended to make. It may be that the Industrial Tribunal will consider that there are requirements of justice within the meaning of Rule 11(1)(c) for reviewing the scope of the order. We would add we are particularly influenced in reaching this view by the point taken by Mr Perkoff that the form of the direction, by reference to list A, stopped short of ordering the documents on page 26 for which legal professional privilege was claimed. That appears to us to be some indication that the Chairman was not intending to order the production of documents at that stage for inspection, as legal professional privilege was being claimed. He might, in those circumstances, have inadvertently made an order in respect of some documents in list B for which legal professional privilege is also claimed.We sympathise with the Chairman. It was frankly accepted by Mr Perkoff, in his submissions to us, that the matter had not been competently handled by the legal representative of City Index Ltd at the that hearing. The Chairman may have been led into making an order which he would not have made, had there been competent representation on both sides.That is a matter for the Industrial Tribunal. We would also point out that, although we have been shown a fair number of documents during the course of this hearing, it appears to us that there are likely to exist other documents which would shed light on the scope of the application made to the Industrial Tribunal. We have been shown letters referring to applications for inspection of documents, which appear to refer to other documents not available to us today. They would be relevant if they indicated that Mr Pooley, through his solicitors, was not seeking inspection of documents for which legal professional privilege had already been claimed in the Queen's Bench proceedings.Finally, we would say this. If the Tribunal does entertain the application for a review, it would, in our view, be open to the industrial tribunal to come to the conclusion that the practical and realistic course to take is to adjourn that application for review to the Industrial Tribunal which hears the substantive claim, so that the Tribunal, which would be fully in the picture as to all the issues, who was going to give evidence and what the scope of documentation was, could rule on these disputed questions in relation to the particular documents as and when it was sought to obtain the document for inspection. Again, we are not deciding that for the Tribunal. It is a matter for them. But they may feel that that indication is of some help when they come to decide how to deal with this matter.That is the order we make. We dismiss the appeal. It is out of time. We stay compliance with the order in the letter of 21st November, so far as it relates to documents for which legal professional privilege is claimed, until the Tribunal have decided on the application for review.Following the decision an application was made by Mr Morton, on behalf of Mr Pooley, under Rule 34 of Employment Appeal Tribunals Rules for an order that the costs of the appeal, which has been unsuccessful, should be paid by City Index Ltd and that we should direct those costs to be assessed by the Taxing Officer. The main point made by Mr Morton was that it was City Index Ltd, through their legal representatives, who were responsible for the situation which has led to this appeal. If the matter had been conducted competently and responsibly before the Chairman of the Tribunal, it might never have been necessary for this appeal to be launched.We see the force of the criticism of the way in which this matter was handled. Mr Perkoff has candidly admitted the deficiencies of representation at that hearing. Nevertheless, we have reached the conclusion that this is not a case in which we should exercise our discretion to make an order for costs under Rule 34. In our view, the matter has not been fully investigated. We say no more about it, since the Industrial Tribunal may, on further investigation, reveal facts which we do not know. In those circumstances the appeal is dismissed with no order as to costs.