HM Prison Service v Hopkins [1997] UKEAT 1149_97_1811

EAT
HM Prison Service v Hopkins
[1997] UKEAT 1149_97_1811 · 1997-11-18
MR JUSTICE LINDSAY : We have before us an interlocutory appeal in the matter of Mrs E. Hopkins against HM Prison Service. On 15 September of this year there was a decision by the Chairman, Mr J.R. Barton, sitting at Newcastle upon Tyne on a Directions Hearing that was concerned with an application for discovery by Mrs E. Hopkins, the Applicant.The decision of the Chairman was promulgated on 16 September 1997 and the decision was that, on a certain undertaking being given by Mrs Hopkins in relation to preservation of confidentiality, certain specified classes of documents were to be discovered by the Prison Service. The classes of documents were those relating to a disciplinary hearing of Mr Cowperthwaite; those relating to a disciplinary hearing of Mr M.W. Wood and also those relating to the grievance of Mrs Hopkins.The Prison Service indicated that it wished to appeal against that and that is the appeal that we are now hearing. It is necessary to go a little into the background.On 13 January 1997 Mrs Hopkins presented her IT1, an Originating Application, complaining of unfair dismissal by the Prison Service, sex discrimination and victimisation. The case was that she had been dismissed for "gross misconduct" and "neglect of duty" and that had been found after a disciplinary investigation. In particular, the accusation was that she had spent some 12 hours on the telephone making personal calls in one week, whilst on duty. It was her case that, notwithstanding that, her duties had been fully carried out at the time.There was a disciplinary investigation and it is her case that that disciplinary investigation recommended only that she be warned. However, she was dismissed. Her complaint includes, amongst the matters raised, an allegation that more serious conduct, on behalf of males in the Prison Service, had met with lesser remedies than dismissal. She also took the point that, whereas she had carried out her duties and yet had been dismissed, several males had been found not to have carried out their duties and yet had not been dismissed, and she claimed also that she had been victimised because of the harassment claims that she had raised. That was, broadly speaking, the nature of the IT1, so far as relevant for present purposes. She followed that up with a questionnaire (I think in fact the questionnaire preceded the IT1) and, as they had to do, the Prison Service answered the questionnaire in January 1997. There was a questionnaire answer which itself referred to other disciplinary hearings. On 6 February 1997 the Prison Service filed their IT3 response.On 28 July 1997 (and precisely how it came about, the papers do not clearly disclose) there was a Directions Hearing that concerned itself with the production of documents for the ultimate hearing and the matter was adjourned for the Prison Service to produce to the Chairman certain documents so that he might consider them. As I have indicated, on 15 September 1997, there was a hearing in front of the Chairman alone and his decision was promulgated, as I have mentioned, on 16 September 1997.It is necessary to read passages from the directions given on 15 September. The first direction is as follows:
"1 Upon the applicant providing the respondent or its representative (with copy to the Tribunal) with a signed written undertaking not to disclose the contents of documents provided for inspection in connection with this case to any third party other than those who may be representing her in connection with this case (and having so notified those representatives to the Tribunal office on terms that upon their appointment such representatives will provide an undertaking in similar terms) I order under Rule 14(1)(b) [this should be 'under Rule 4(1)(b)'] of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (as amended) that on or before 27 September 1997 the respondent sends to the applicant a list of the documents specified below as are or have been in the possession or power of the respondent and sends a copy of the list to this office. (i) relating to the disciplinary hearing of Mr J W Cowperthwaite

(ii) relating to the disciplinary hearing of Mr M W Wood

(iii) relating to the grievance of Miss E Hopkins

And that on reasonable notice within a further 14 days the respondent produces the documents for inspection at H M Prison Frankland, Brasside, Durham and permits copies to be taken.Among the reasons for that decision the Chairman says at paragraph 1:
"1 I am satisfied that the applicant's case relies in part on an allegation that she has been discriminated against on the grounds of sex in a matter of her different treatment from the two named male officers concerned in her application for discovery in relation to matters of alleged misconduct and also as to the failure to deal with her grievance before she was dismissed and that it would not be possible for such a matter to be assessed properly by a Tribunal without recourse to the documents in question. I therefore find the documents not only relevant but also necessary for disposing fairly with the proceedings."
The Chairman also noted that public interest immunity had not been argued in the case and accordingly he gave the direction that he mentioned and he also drew his own attention to the leading case of Science Research Council v Nassé House of Lords ICR 921.The Prison Service lodged a Notice of Appeal on 30 September and Mrs Hopkins responded to that shortly thereafter.One of the points that Mr Spain, who has appeared before us on behalf of the Prison Service, has taken in his skeleton argument was that at least some of Mrs Hopkins' complaints are barred for time and to that extent documents relating to those time-barred issues ought not to be discoverable. That point we do not think is open to him, at any rate at this hearing. No such point was taken below and, so far as we are concerned and so far as the Chairman was concerned, the issues which have to be considered for determining whether a document is relevant or not are the issues raised in the pleadings as they stand. There has, as yet, been no application that any passages should be struck out from Mrs Hopkins' complaint on the ground that the complaint is time-barred. Accordingly, we pay no attention to the time-bar point.Another point that Mr Spain takes is that it will be difficult for any Tribunal adequately to be able to compare mitigation factors disclosed in the papers in relation, let us say, to Mr Cowperthwaite or Mr Wood, with the case of Mrs Hopkins and that the Industrial Tribunal, looking only at the cold documents, will not get a sufficient flavour of the mitigations that were presented in the Cowperthwaite and Wood cases. But, if that was an objection of substance it would, almost always, preclude the use of documentary evidence. The Industrial Tribunal has, time after time, to make comparisons in this sort of case between the facts relating to Mr A and the facts relating to Miss B and so on. They are experienced in making the comparisons and the difficulties that are inherent in the comparisons are points that can be argued before the Industrial Tribunal and can be taken into account. We do not see the mere fact that comparisons are difficult is sufficient to preclude discovery of the documents on which such comparisons may be based. Indeed, subject to some trimming (so to speak) of the directions, we see this as a case in which some discovery is not only desirable but, as the Chairman found, necessary for disposing fairly of the proceedings. Unless Mrs Hopkins has access to some, at least, of the papers relating to Mr Cowperthwaite and Mr Wood, how is she able to make good her point that there has been more serious misconduct by males that has not met with dismissal and yet that her less serious offences were met with dismissal?It seems to us that it is legitimate that as full a comparison can be made between her case and those of her chosen comparators as is reasonable; but what does reason involve? The Nassé case, to which we earlier referred, indicates that the mere confidentiality inherent in some classes of documents is not, in itself, a bar to their discovery but yet that the court should have regard to confidentiality, particularly where its breach would be likely to have effect not only in the instant case but in other cases. One can see that if it became widely known that regardless of confidence papers relating to the private considerations of Mr A might nonetheless find their way into the public domain, that would greatly damage the free access of information between parties and the Prison Service.The only aspect of the decision of the Chairman that causes us any difficulties is that the way in which his paragraph 1 of the directions, which I read out in full, is framed. It hardly accords with a conclusion such that he has individually vetted each document that was produced to him and has determined that each document was or was not relevant to the case and necessary for fairly disposing of the proceedings. His order is very much in blanket form and it is hard to believe that every single document that was produced to him was such that it was both necessary for the fair disposition of the case and relevant to the proceedings.We are told by Mr Spain that it was not a case in which there was produced to the Chairman both a full copy of all papers and, as it is now put, a "redacted" copy, with parts sought to be blanked out blanked out. That is a convenient technique whereby the Judge or other person assessing documents for discovery can see whether the redacted blanked-out parts are such that the Applicant for discovery would or might thereby suffer from their blanking out. It could well be that there are passages in the papers (let us say relating to Mr Cowperthwaite or Mr Wood) the disclosure of which would embarrass the Prison Service and yet the blanking out of which would not in any way prejudice Mrs Hopkins. Had we, on reading the directions given on 16 September, taken the view that the Chairman had plainly already conducted such an exercise, we would, of course, in the absence of any error of law, have been obliged to do no more and to dismiss the appeal. But, as I have mentioned, the form of the order seems to be in blanket form and redacted copies were not produced.What we are going to do then is, in part, to allow the appeal. We shall give a direction that there is to be produced to the Chairman both a full copy of all papers which the Prison Service acknowledge to be relevant to Mrs Hopkins' complaints and, at the same time, a redacted copy in which the Prison Service shall have blanked out those parts to the disclosure of which they would take exception. The Chairman will then be in a position to see precisely whether Mrs Hopkins suffers, or might suffer, from the blanking out there disclosed. He can then determine, item by item, which papers need to be discovered in full, which papers do not need discovery at all and which papers can be adequately discovered in redacted form.We do not see any error in principle in the Chairman's directions of 16 September but nonetheless the form in which the matter emerged does not give us confidence that the technique that we have described was applied and that is the technique we see to be the correct one in all the circumstances. So, without finding error in principle, we nonetheless set aside the directions of 16 September 1997 and remit the matter for the technique which we have indicated, which will take a little while to implement because the Prison Service will first have to re-examine the papers to see what redactions it wishes to secure.Having indicated to the parties that that is the principle on which we intend to act, we will invite the parties to discuss in any more detail than already given such particular directions as may be appropriate. We do have it in mind that once the Chairman has had a fresh look at the matter that he will come up with directions that are more specific, so that, for example, one can foresee an order that says by reference to lists or schedules that document 73 shall be discovered, document 17 need not be discovered and document 81 (I am just inventing numbers) is to be discovered but in the redacted form that he will have seen. No doubt there might be cases where he will permit redaction but not quite the redaction which the Prison Service indicates. When he has done that the parties will, of course, be at liberty, either of them, to appeal afresh but, at any rate, the full Nassé principles will, by then, have been observed and will have been seen to be observed.We indicate then that, within 14 days from today, the Prison Service are to produce to the Chairman the full copies and the redacted copies for his consideration.