Ayovuare v London Borough Of Greenwich [1995] UKEAT 440_95_2605

EAT

Ayovuare v London Borough Of Greenwich

[1995] UKEAT 440_95_2605 · 1995-05-26

JUDGE HULL QC:

This is an appeal to us by Mr Ayovuare who is a quantity surveyor employed in an assistant capacity by the London Borough of Greenwich, who are the Respondents. He works in their housing services department and he has been employed by the London Borough since 29 June 1987. He has complained to an Industrial Tribunal that he has been discriminated against in the course of his work. He names a particular date, 29 October 1993, but it appears there have been other acts of discrimination of which he complains and the matter, therefore, will of course have to be looked into.

The London Borough has put in an answer on 8 December 1993 denying that there has been any racial discrimination against Mr Ayovuare and that, therefore, will be the duty of the Industrial Tribunal to investigate in due course, when the matter comes on for hearing.

On 13 February of this year, after a considerable delay, which has no doubt been occupied by various steps which we are not concerned with, Mr Ayovuare wrote a letter to the London Borough requesting documents. He did not get the documents which he wanted and, therefore, he applied to the Industrial Tribunal to make an order for discovery as that concept is understood in the Industrial Tribunal. As with a number of other concepts, such as consolidation, the concept is not quite the same in the Industrial Tribunal as it is in the ordinary Courts - in the County Court and the High Court - but the order for discovery, which was made in his favour, was as follows:

"Following an application by the Applicant, a Chairman of the Tribunals has ORDERED that on or before 14 days of the date of this letter you send to the applicant the documents specified in the Schedule below as are, or have been, in your possession or custody or power and send a copy to this office."

There are a number of things to be said about that Order at this point. First of all, it is ungrammatical in two important respects. Presumably, it is intended to read "you send to the applicant such of the documents specified in the Schedule below as are, or have been, in your possession". Presumably it means to say that and one can understand, I think, what is meant by [you are]:

"ORDERED that on or before 14 days of the date"

- it presumably means "by a date 14 days from the date of this letter or before". It would have been far better if the date had actually been named but there it is. How the Respondents are supposed to send documents which have been in their possession, custody or power, one simply does not know. It is a wholly inept Order in that respect because it is echoing, of course, what is said in the High Court and County Court Rules, where the parties are required to send a list of documents which are or have been in their custody, possession or power, and of course the rider is always added "and with regard to those documents which are no longer in your possession or power" to say what they are and when they were last in your possession or power. That is a much more readily comprehensible order because it means, for example, that the Respondent may say, "Well, I had a letter in my possession but I parted with it on the day I sent it to somebody else and so I no longer have it in my possession or power." The present Order is made a little plainer (but not very much) in paragraph 4 by saying:

"If you wish you may comply with the Order for Discovery by supplying to the other party a copy of the documents."

So, if you still have a copy of the document which you no longer have, no doubt you can send that.

That was the Order which was sent and the schedule refers to all the documents referred to in the Applicant's letter dated 13 February, copy attached. Mr Ayovuare's letter is at page 2 of our bundle, dated 13 February, and he asks for:

"i) the hand written unedited minutes that was taken during my Grievance hearing at the Personnel Appeal Committee (PAC.) that took place on the 28th June, 3rd October and 21 October 1991. ... Also cross-examination of witnesses, both the Panel members and others;

ii) the hand written unedited statements made by every witness that was interviewed during my official complaint of Racial Discrimination, Harassment, Victimisation and Intimidation against Housing Services Management that was investigated by Mr. Neil McClelland, the Director of Education, on the 13th August, and completed on the 6th November, 1991. Mr. Neil McClelland and his Panel interviewed many witnesses. I want unedited statement of all the witnesses and unedited final finding of the Panel's report;

iii) the unedited hand written minutes [of] my Grievance to the Personnel Appeals Committee (PAC) hearing that took place on the 22nd February 1993. ...

iv) the unedited hand written minutes of my official complaints of racial Discrimination, Harassment and Victimisation against Mr. Ian Andrews PQS and Mr. Ben Beke SQS that was investigated by Mr. Lester Benjamin, Engineering Manager, on the 20th September, 1993. I want the unedited statements of the Witnesses interviewed by Mr. Benjamin and his Panel members and unedited final findings."

That was his request in that letter, which was expressly incorporated in the Order for discovery which was made by the Industrial Tribunal on 21 March.

On page 6 there is the response to that Order. I should say, before I go to that, that the notes to the Order state quite correctly that if there is failure to comply with the Order the Respondent could be fined £1,000 or, of course, a lesser sum and failure:

"... may result in the whole or part of your notice of appearance being struck out ... and, where appropriate, you may be debarred from defending altogether."

and, thirdly, on a rather more favourable note from the Respondents' point of view, having made this Order without hearing the Respondents, the Tribunal makes clear and rightly so that:

"The Tribunal has power to vary or set aside this Order on the application of the person to whom it is directed but can only do so for good cause. Any such application should be made to this office before the date mentioned above, giving reasons for the application."

What happened was that on 3 April the London Borough of Greenwich wrote saying, with regard to a great many of these documents, that they had not kept them. They said, with regard to the documents that they had kept, that they sent either the notes or copies of them, and that was their purported compliance with the Order. On the face of it, it was a perfectly good compliance because they were only required to send what they had. It is true that on the face of it they were also required to send what they had had but no longer had; but how they could do that, one simply fails to understand. They said that, with regard to other documents, they had not preserved them.

Of course, it goes without saying that if that letter should turn out to be insincere and incorrect, and the Borough is, as Mr Ayovuare suggests, employing delaying tactics and not being frank with him, then if that should emerge, when the witnesses are produced at the hearing before the Industrial Tribunal, one has no doubt that the Industrial Tribunal will take a very unfavourable view of what has happened and may very well think it right to take severe steps against the Borough for having committed a contempt of its Order but, for the moment, that is what the London Borough has said. "We are sending you all the documents which we have, other documents we have not got." In those circumstances, Mr Ayovuare, being dissatisfied with that, made a request for enforcement of the Order, on 5 April. He wrote to the Regional Secretary of Tribunals and complained that documents were not all being sent to him and, therefore, asking that:

"... this Interlocutory Order being placed by the Chair to implement paragraphs 1 and 2 of the Order ie. summary conviction in a fine of up to £1,000.00 and struck out before or at the hearing, and, where appropriate the Respondent be debarred from defending altogether."

That was his request for enforcement of the Order and on 19 April the Regional Office wrote as follows:

"A Chairman has considered your letter of 5 April 1995.

He has refused your application for an order that the Respondents' notice of appearance be struck out. Although it appears from the Respondents' letter of 3 April that some of the documents ordered to be copied to you have been destroyed, there is no evidence that the Respondents have wilfully failed to comply with the order of 21 March 1995."

An order that there should be a fine imposed on the Respondents for non-compliance, or that their answer should be struck out, was refused. The order that they should be debarred from defending was refused and one asks, on the face of it, what is wrong with that? The first thing to say is that all these interlocutory orders are discretionary. The Industrial Tribunal has a discretion whether to make an order for discovery, as that expression is understood in the Industrial Tribunal, and it has a discretion if it is alleged that there has been a breach of its order, as to how to proceed. Some breaches, if shown, are trivial and are not likely to affect the fair trial of the case. Other breaches are more serious and the Industrial Tribunal will have to decide in each case how justice requires it to deal with them. The responsibility for the trial of the complaint, which is what all these interlocutory orders are about, rests with the Industrial Tribunal and not with us. We are not the Tribunal which is charged with the fair trial of the complaint which has been made and, therefore, we are especially reluctant to interfere with interlocutory orders which are, in any event, a matter of discretion and, therefore, we could only interfere if it were shown that the Industrial Tribunal had proceeded on a false basis, considered some matter which they should not, failed to consider some matter which they should or reached a decision which was simply irrational.

We ask ourselves whether that is so. Mr Ayovuare has told us today, as I say, that he considers that the Respondents are engaged in a tactical approach to the matter. He says that they have deliberately destroyed documents which are essential to his case, are attempting to conceal the truth and that the Chairman is, therefore, wrong to refuse to implement his own interlocutory order and he asks us to say that there should be a fine and that they should be dealt with on the basis that there has been a contempt of court.

As I have already said, all these orders, both the order for discovery and the order enforcing it, if one is made, are discretionary in the Tribunal. But one asks, in addition to that, whether there is any material here on which the Chairman could exercise a discretion to punish or penalise the Respondents in any way, bearing in mind what has happened. The Order for discovery, as I say, was in parts inept but one can understand the sense of it and it is not alleged by the Borough that it did not understand the order or the essence of the order. Has there been a failure to comply with the order? The answer appears to us to be self-evidently that there has not. The order for discovery was that they should send the documents which they had or copies of them to Mr Ayovuare within the time limited. They say that they have done so. If documents have, as Mr Ayovuare said, been destroyed, one asks rhetorically, "How can they possibly be sent? Unless copies have been kept, how can copies be sent?" And it does not appear to us, therefore, that there has been any breach of the order. As I say, if it should emerge that the Borough has, indeed, destroyed documents which are important to the case and that that was done with a dishonest or improper intention to prevent justice being done, then it will certainly go hard for the London Borough when the Industrial Tribunal hears about that. But for the moment, the order having been made, Mr Ayovuare, on the face of it, has failed to show the Tribunal that there has been any breach of the order. He may be able to show other matters discreditable to the Respondents in due course but what he has not done is to show that there is any breach of the order. Even if he could, we should be very reluctant to interfere for the reasons I have already indicated. But unless a breach is shown the Chairman quite plainly cannot, as Mr Ayovuare put it, enforce the order for the short and simple reason that the order has, indeed, been complied with on the face of it.

Therefore, in spite of the serious allegations which are made (and we appreciate Mr Ayovuare's difficulties in proceeding with this case if he has not got documents which he says he ought to have and which did exist) nonetheless it is quite plain to us that this appeal to us is one which we cannot possibly accede to. It is one which shows no point of law. It is one which, on the face of it, shows that all, indeed, has been complied with and that Mr Ayovuare is mistaken in the appeal which he makes to us.

In those circumstances, we have to dismiss the matter.