Eclipse (UK) Ltd v Cornwall & Ors [1997] UKEAT 962_96_2603

EAT
Eclipse (UK) Ltd v Cornwall & Ors
[1997] UKEAT 962_96_2603 · 1996-10-10
MRS JUSTICE SMITH : This is an appeal from the decision of a Chairman of Industrial Tribunals sitting alone at Ashford, Kent, on the 29th July 1996.The Chairman struck out the notices of appearance in each of the seven cases before him for failure to comply with an order for discovery made by him on 21st May 1996.There were before him seven claims, previously consolidated, brought by employees or former employees of the appellants Eclipse (UK) Ltd, whom we shall refer to as `Eclipse'. They were Messrs. Cornwall, Fountain, Potter, Cook(deceased), Lissamore, Hobbs and Chamberlain. Until 31st March 1994, each employee had been employed by Hastings Contract Services, the direct works department of Hastings Borough Council. They were skilled men, working mainly on maintenance and repair of council property. Pursuant to a privatisation policy, their employment had been transferred to the appellants. The provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1991 applied to the transfer. In their originating applications lodged in June 1994, the employees alleged that all the terms and conditions of their previous employment should have been transferred to their new employment but that this had not been done. Less favourable terms had been substituted. They sought compensation for the resulting financial loss.In preparation for the hearing, each employee served a schedule of loss covering the period 1st April 1994 to 20th October 1995. Several heads of claim were advanced, some of which were common to all the claims; others were not. It was alleged by all that the employee's basic pay had been reduced. Second a claim for overtime was advanced on the basis that each employee was contractually obliged to work only 37 hours a week but was being paid on the basis of a normal working week of 39 hours. Each employee claimed 2 hours overtime a week at time and a half. Also under this head it was to appear that the employees were claiming that they had lost some pay in respect of weekend work although no such claim was set out in the schedules. The third head of claim was for unpaid bonus. The fourth related to deduction of £1 a week from each employee's wages for overall cleaning. The fifth head of claim alleged that each employee had been obliged under the new contract to buy his own consumables and protective clothing which should have been paid for by the employer.Five of the seven employees alleged they had suffered losses under an all hours emergency maintenance service referred to as a `callout scheme'. Hastings BC had operated such a scheme and Eclipse now did likewise. However, the applicants did not set out the way in which the claim under this head was advanced. The employees did not expressly state that they had worked under the Hastings BC scheme although by claiming a loss they implied that they had done so. Nor did they expressly allege that they had worked under the Eclipse scheme. However, as will be seen, their solicitors claimed that they had done so.Other less important claims were advanced by some of the applicants, the details of which are not relevant to this appeal.One of the issues which was common to all the applicants, the question of whether they were contractually obliged to week 37 hours a week or 39 hours a week, was determined at a preliminary hearing which took place some time in 1995. The issue was decided in favour of the employer who contended that the normal working week was 39 hours. The employees appealed to the Employment Appeal Tribunal who remitted the matter for a further hearing.On 21st May 1996 a directions hearing took place before a Chairman Mr De Saxe. The applicants sought discovery of five categories of documents. On that day the following order was made:
"1. On or before 18th June 1996, the respondents shall provide to the applicants by way of inspection of documents, copies of the following documents (at the expense of the applicants):- (i)(a). Documents showing details of weekends worked by any of the applicants. (b). Mr Cornwall's wages slip for the week ending 27th May 1994. (c) Mr Potter's wages slip for the week ending 30th September 1994. (d) All of Mr Lissamore's payslips for the period after the transfer of undertakings.
(ii) Any documents setting out details of the respondents' callout scheme, together with records showing which of the applicants, who, at the relevant time were on call, had been called out under the scheme and the occasions on which they have been called out."In his reasons attached to the order the Chairman said that the hearing had been called to consider what issues were outstanding between the parties following the decision of the Employment Appeal Tribunal and what action needed to be taken to prepare the case for trial. The representatives on both sides had said that there was a large measure of agreement between the parties but there was a basic disagreement as to whether the applicants should, since the transfer of undertakings on the 1st April 1994, have been paid on the basis of a 39 hour week or a 37 hour week.He recorded that the applicants had asked the respondents to supply certain relevant documents. Mrs Cooke of Peninsular Business Services who appeared for the employers said that she had asked her clients for those documents but they had not been forthcoming. In the circumstances the Chairman had made an order for discovery and inspection of documents. Also by agreement new schedules and counter schedules were to be served.At the end of the Order there was a notice that failure to comply with the Order may result in a fine of up to £1,000 being imposed upon a party under Paragraph 1.7 of Schedule 9 of the Employment Protection (Consolidation) Act 1978 ; further that failure to comply with the Order may result in the application or notice of appearance being dismissed in whole or in part before or at the hearing.During the next few weeks, the payslips were provided. There was some delay and some complaint about the quality of copies but they were provided. Problems arose over documents relating to the applicants' week end work and the operation of the callout scheme. On 17th June, while acknowledging some payslips recently provided, Lawfords threatened to apply to the Tribunal for an order to strike out the notice of appearance if the outstanding information were not received in time.On 18th June, Mrs Cooke wrote to explain her instructions. She said that she was advised by her clients that none of the applicants had worked week-ends for Eclipse. She implied that it followed that her clients had no documents to disclose under paragraph 1(i)(a) of the Order. Second, she said that she was enclosing documentation relating to the Eclipse callout scheme but that she had been advised that none of the applicants had been required to operate that scheme; nor were there any records of any of the applicants having been called out. We interpose to say that the documents disclosed described how the call out scheme operated but did not explain the pay structure.Also on 18th June 1996, Lawfords wrote to the Secretary of Industrial Tribunals enclosing copies of recent correspondence and complaining about the delay in providing the wage slips. They continued:
"Further the respondents have said that none of the applicants were operating callout yet the payslips of at least three of the applicants indicate that they have in fact been doing so. We enclose copies of a selection from Messrs Cornwall, Potter and Fountain with details. In the circumstances it seems to us that the respondents have made little effort to comply with the order and we therefore request that the matter be referred to the Chairman to make an order that the notices of appearance be struck out. We await hearing from you as soon as possible."
Enclosed with that letter were copies of 3 wage slips, one each of Messrs Cornwall, Fountain and Potter. Mr Cornwall's wage slip showed that in the week of 10th June 1994 he had earned £12.27 under the heading of `callout', The calculation showed 3 hours pay at £4.09 per hour. Mr Fountain's wage slip for the week of 13th May showed that he had earned £12.27 for `callout' calculated in the same way as Mr Cornwall's. He had also earned £5.73 for overtime: 0.8 of an hour at £7.16 per hour. Mr Potter's wage slip showed that in the week of 29th July 1994 he had earned £12.27 for `callout' calculated in the same way as the other two workers. He had also earned overtime of £7.96 calculated by reference to 1.5 hours work at £5.30 per hour.On 19th June the Secretary to the Industrial Tribunals sent Mrs Cooke a copy of Lawfords' letter of 18th June and asked for her comments within 7 days.On 21st June 1996 Lawfords wrote to Mrs Cooke saying that they had received instructions on her clients' contention that none of the applicants had worked week-ends. They said:"We have been advised that those applicants who worked callout in particular did work on many weekends and that some week-ends were worked in addition as overtime. Your information is therefore incorrect and we require details of all week-ends worked by the applicants as ordered by the Tribunal".On 25th June 1996 Mrs Cooke wrote to Lawfords enclosing copies of the wage slips in eventual compliance with paragraphs 1(i)(b)(c) and (d) of the Order of the 21st May. Only 1(i)(a) and 2 remained outstanding.The letter went on:
"I have received your recent letters relating to the standby and callout scheme and I am advised again by the respondents that according to their records there is no record of any of the applicants having worked callout under this scheme. I have extensive records from the company which are being forwarded to you under separate cover identifying those employees who were called out in all of the relevant weeks.
I am making enquiries to establish the reason for the information which is held on the payslips and will respond to you and the Industrial Tribunal shortly.I am advised that the information relating to overtime working at week-ends as provided to you previously is correct and the company has no records of the applicants having worked week-end overtime."Mrs Cooke was reasserting Eclipse's contention that they had no documents to disclose under either paragraph 1(i)(a) or paragraph 1(ii) of the Order.Also on the 25th June Mrs Cooke wrote to the Industrial Tribunal enclosing a copy of the letter she had sent to Lawfords. She continued:
"I have spoken to the Managing Director of the company about the anomalies between the information provided which related to callouts and the appearance on a payslip of a payment which is referred to as `callout'. I am advised that the company does operate a callout scheme and that none of the applicants have been required to work under this scheme nor have any of the applicants been called out under this scheme. As indicated in my letter to the applicants solicitors there is extensive record of all callouts and the names of people called out and this information has been forwarded to the solicitors.
I am informed that overtime which is agreed and arranged in advance is paid as overtime by the company. In the event, however, of an employee being out of the office on a call during his normal hours which then necessitates his working beyond those normal hours in order for completion of the work then payment is made to him for that extra period at a rate of 3 hours irrespective of the amount of extra time taken. This is the payment which is indicated on the payslips referred to you. I trust that this explains the situation."In that letter Mrs Cooke was seeking to explain the significance of the payments made to Messrs Cornwall, Fountain and Potter which in each case was for a period of three hours. Although this was referred to on the payslip as `callout', Mrs Cooke was seeking to explain that that work was in fact overtime served at the end of the normal hours of work.On 27th June 1996 the Secretary to the Industrial Tribunals wrote to ask Lawfords if they were now satisfied with discovery. On 1st July Lawfords replied that they were not. They said that they were instructed that the applicants did occasionally work week-ends both under the callout scheme and in addition to their normal hours. They complained that no details had been provided by the respondents. Lawfords also claimed that they had been instructed that Messrs Cornwall, Lissamore and Potter had worked the callout scheme and that Mr Fountain had done so on one occasion in May 1994. So, Eclipse's contention that none of the applicants had worked callout was incorrect. They further complained that Eclipse had not provided details of the pay structure of the callout scheme such as would enable them to calculate the applicants' losses. They complained too that Eclipse had promised to forward records relating to employees called out but that these had not been received. Finally Lawfords invited the Chairman to consider suitable action for breach of the Order.On 2nd July, the Chairman directed that there should be a hearing on 29th July and a notice of hearing was sent to the parties saying that the chairman would consider:
"Whether the notices of appearance should be struck out for the respondents' failure to comply with paragraph 1 of the Tribunal's Order of 21st May 1996 relating to discovery and inspection of documents."
On 3rd July Mrs Cooke sent Lawfords the extensive documentation about the callout scheme to which she had earlier referred. On receipt Lawfords complained that the names in the documents appeared to be the duty officers, not the names of the workmen who carried out the actual work. They said that the employers must have some documentation showing which operatives actually did the work on callout. They demanded to see those documents which, they said, would show that the applicants had done callout duty. We interpose to observe that Eclipse had not been ordered to disclose records showing who had done call out duty; they had been ordered to disclose records showing which of the applicants had been called out and when. Lawfords repeated their various requests.On 11th July Mrs Cooke replied inter alia to say that she was seeking information about the method of payment for callout work but she repeated her instructions that none of the applicants had worked under the Eclipse scheme.On 12th July Lawfords wrote to Mrs Cooke asserting that the applicants were involved in the callout scheme. They had undertaken callouts and they reported back to their supervisor the following day with details of the call by written document. Lawfords suggested that those forms were numbered ECL4O.On 22nd July Mrs Cook replied to Lawfords explaining that form ECL40 had only been introduced in December 1995 and was therefore not available for the period in question. She repeated that she had asked her clients to check if there was any documentation whatsoever which would confirm the names of the employees who had worked on callout. She confirmed that there was no documentation which identified the method of payment of standby and callout but that her clients would provide details of the method of calculation. That information was sent the next day but Lawfords asked for clarification.Also on 22nd July Mrs Cooke wrote to the Industrial Tribunal requesting an adjournment of the hearing on 29th July as the date was inconvenient to the Managing Director of Eclipse who had wished to attend. That application was refused.It appears that Lawfords thought that the notice of hearing for the 29th July was not in proper form. The Chairman considered that it complied with the requirements of rule 4(7) of Schedule 1 to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 but for the avoidance of doubt directed that a further letter be sent to the parties advising that at the hearing they would be given an opportunity to show cause why the notices of appearance should not be struck out.The hearing on 29th July was conducted under Rule 4(7) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . Rule 4(7) provides:
"If a requirement under paragraph (1) or (3) is not complied with, [which deal with orders for the provision of further and better particulars, discovery of documents and the answering of questions] a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that the respondent shall be debarred from defending altogether: but a tribunal shall not so direct or strike out unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."
The Chairman struck out all seven Notices of Appearance. He also directed that the costs incurred by the applicants since 18th June, the day fixed for compliance with the order, were to be paid by Eclipse. It is from that order which the appellants now appeal.It was common ground that the appellants had complied with the parts of the order relating to wage slips. The employees' complaint was that the employers had not complied with the orders to produce documents relating to week-end work and the callout scheme.The Chairman began by summarising the correspondence, noting the disagreement between the parties as to whether the applicants had taken part in the Eclipse callout scheme. Eclipse denied that they had taken part but the Chairman noted the 3 payslips which showed payments in respect of "callout". He recited the employers' explanation for that. Next the Chairman noted the dispute between the parties in respect of week-end working and rehearsed the opposing contentions.The Chairman then summarised the arguments advanced before him. Mr O'Dempsey, counsel for the employees, said that the documents disclosed relating to the callout showed only the names of the duty officers and not the workmen. He submitted that it was not acceptable for the employers to say there were no documents when wage slips referred to `callout'. He asked the Chairman to find that the words `callout' on the wage slips referred to money paid under the callout scheme and did not refer to a form of overtime. He complained that the documentation disclosed had not allowed the applicants to calculate their loss.For the employers Mr Smith asserted that his instructions were that none of the applicants had worked any week-end overtime. Nor had they worked on the callout scheme. He repeated the explanation for the use of the words `callout' on the wage slips of three of the applicants. The Chairman had asked Mr Smith `if he had any evidence to support that interpretation of a perfectly straight-forward English word' and Mr Smith had replied that he had not. Mr Smith had claimed that the wage slips came from a computer and there were no documents to show who had done the actual work on the callout scheme or when.The Chairman then recorded that he had suggested to the parties that the information needed might be gathered by the written answers to questions but Mr O'Dempsey had argued that that would not be appropriate. He submitted that this was a straight- forward case of contumelious non-compliance with the Order.Mr Smith had replied that the respondents' position had been set out in open correspondence and that there could be no doubt as to their case. They had produced all the documents which were in their possession and they were entitled to proceed. Mr Smith then suggested that the Chairman might make a 7 day "unless order" in the hope that the acute pressure applied to his clients might encourage them to produce more documents. Mr O'Dempsey opposed that suggestion. He said that there had here been a failure to comply with the Order and that the explanation put forward by the employers passed belief. It was inconceivable that there would not be documents recording a callout rota and equally inconceivable that there would not be documents from which data had been put in to the computer to prepare wage slips. Those documents should have been produced. He submitted that the way in which the respondents had shifted ground under pressure showed that there had been contumelious default and that the notices of appearance should be struck out. Pausing there, it does seem to us that Mr O'Dempsey's submissions may have been a little over enthusiastic. The order did not require the employers produce records to show who had done callout rota; it only required them to produce documents showing what the applicants had done.In reaching his conclusions the Chairman observed that the remedy sought was a serious one. If he thought that the making of an 'unless' order would meet the requirements of the case, he would have preferred to do that in an effort to avoid striking out the Notices of Appearance. But he accepted Mr O'Dempsey's argument that that would not be appropriate. He observed that the respondents could not say on the one hand that they had no further documents and on the other hand that they might be able to produce further documents if time were allowed. He then said:
"I accept Mr O'Dempsey's argument about the meaning of the word `callout' on the wages slips of three of the applicants as mentioned above. I think `callout' means what it says in the absence of any evidence that it means something different. The respondents have called no such evidence. In my view for reasons best known to themselves the respondents have sought deliberately to evade complying with my order. That amounts to contumelious default. I am driven to the conclusion that I should strike out the Notices of Appearance of the respondents for their failure to comply with sub-paragraph 1(i)(a) and 1(ii) of my Order of the 21st May and I do so order."
In this appeal, the appellants submit that the Chairman's decision was perverse and also that it failed to take proper account of the principles laid down in the case of National Grid Company PLC v Virdee [1992] IRLR 555 to which he had been referred.We will deal first with the question of perversity. In order to reach the conclusion that the appellants were in contumelious breach of paragraph 1(i)(a) the Chairman ought to have made findings of fact that the applicants or at least some of them had carried out week-end work, that the employers had records showing that they had done such work and that they had contumeliously refused to produce them. The Chairman has not made any such findings of fact and indeed there was no evidence upon which he could have done so. He had not heard any evidence from either side. Nor had he seen any document which supported the employees' contention on the issue of week-end working. The only wage slips he had seen did not show any extra payment which appeared to represent week-end work and it was common ground that all the applicants now had all their wage slips. He had only the assertion made by counsel, which repeated the assertions advanced in correspondence, that the applicants had carried out week-end work. As against that, he had the consistent assertions of the employers that they had not. We accept the appellants' submission that the Chairman's conclusion in respect of paragraph 1(i)(a) is unsupported by evidence.Second, for the Chairman to find a contumelious breach of paragraph 1(ii) of the Order, he must have made findings of fact that at least some of the applicants had worked on the callout scheme. In argument before us, Mr O'Dempsey accepted that the only material put before the Chairman, from which he could draw that conclusion, were the 3 wage slips, each of which contained an entry for three hours work at £4.09 per hour against which the words 'callout' appeared, but submitted that this was sufficient to entitle the Chairman to reach a conclusion. He agreed that the there had been no evidence from any applicant that he had worked under the callout scheme. There was only the assertion of counsel repeating the assertion of the applicants' solicitor. Against that, there was the respondents' assertion to the contrary and their explanation, consistently advanced in correspondence, that the words `callout' on the 3 wage slips exhibited related to overtime work carried out after the end of a shift. For the appellants it was submitted that there was no evidence upon which the Chairman could make any finding of fact. With some hesitation we reject that submission and accept that it was open to the Chairman to find, on the balance of probabilities, that Messrs Cornwall, Fountain and Potter had each worked on the callout scheme once.However, in order to reach the conclusion that there had been a contumelious breach of the Order, the Chairman would also have to have found that there were documents in the employers' possession relating to these applicants' work under the call out scheme. To do this he would have to have rejected their assertion that there were no such documents because the wage slips were computer generated. Mr O'Dempsey submitted that the Chairman was entitled to reject this explanation out of hand as being utterly incredible. He would, as Mr O'Dempsey accepted, have to be satisfied that the explanation was false. That plainly entails, in our view, a decision based on a higher standard of proof than the balance of probabilities. Mr O'Dempsey submitted that the Chairman had made such a finding. However, there is no express finding on this issue. One would have to infer that he has rejected the employers' explanation. We do not know whether he has done so, and if so why, or whether he has overlooked the point. He has jumped straight from the finding that the 3 applicants did work on the callout scheme to the general conclusion that the employers have sought deliberately to evade compliance with the order. In our judgment the Chairman's reasoning is not a sufficient basis for a finding of contumelious conduct. Such a finding is a serious matter which may have penal consequences. It is, in effect, a finding of Contempt of Court. We are unanimously of the view that a conclusion such as has been here expressed must be seen to be based upon the necessary findings of primary fact. In our view, this finding of contumelious conduct was not so based. We hold that the Chairman's conclusion was in part unsupported by evidence and in part unsupported by the necessary findings of fact.That is sufficient to dispose of this appeal, which in our view must be allowed. However, we would also allow this appeal on the second ground. We are unanimously of the view that the course taken, to strike out all the Notices of Appearance would not have been appropriate even had the findings of contumelious breach of the order been justified.It is important to remember the principles upon which the Court should act when considering a decision under Rule 4(7) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . We were referred, as was the Chairman, to the case of National Grid Company PLC v. Virdee [1992] IRLR 555. There the EAT said that as discovery is granted by Tribunals on similar principles to those applied in the High Court and County Courts, it is appropriate for tribunals to apply similar principles on enforcement as are adopted by the higher courts. Those principles are summarised in the headnote as follows:`.... the fundamental object of...(enforcement) is to obtain compliance with the orders made and it is only in the most serious cases that punishment should be considered. The discretion to strike out should be utilised only in those cases where any judgment ultimately obtained could not be considered to be fair between the parties.'In the present case, it does not appear that the Chairman took these principles into consideration or acted upon them. First he does not appear to have considered whether the fairness of the hearing would be affected. The orders for discovery related to documents relevant to only two discrete issues within the applicants' claims. There was no reason to suppose that all the issues save for losses arising in respect of week-end work and the call out scheme could not have been properly and fairly tried. One of the major issues, (whether the normal working week was 37 or 39 hours) had already been tried once, without any reported difficulty over documents. Had the Chairman considered the effect which the non-disclosure as found would have had on the hearing, he could only, at the most, have debarred the employers from defending in respect of those discrete issues in the three cases in which there was some evidence that the applicants had done callout work. He could not have struck out the whole of all the Notices of Appearance.Moreover, the Chairman does not appear to have considered whether there was some way in which he could enforce compliance before resorting to a punitive measure. The practice usually followed in the High Court, where a party appears not to have complied with an order for discovery, is to give a final chance after the party has been faced with the evidence of non-compliance and the consequences of it. The nature of the final chance will depend upon the circumstances. The Court may make an `unless' order giving a further opportunity for compliance. Alternatively, the Court may direct the filing of an affidavit, thereby giving the party a last opportunity to satisfy the court that it has in fact complied with the order and really does not have any further documents to disclose. It is very rare indeed for the Court to move in one step from the making of the original order to the striking out of a pleading for non-compliance. If that is ever done, it would be only in the clearest of cases.Here the Chairman moved straight to striking out the Notices of Appearance without giving the employers an additional opportunity either to comply or to adduce evidence in support of their contentions. He did consider making an unless order. We can understand why he considered that inappropriate. The appellants could not attractively ask for more time to produce documents if their case was that they had searched thoroughly and were satisfied that they had no documents of the categories ordered. However, he could have allowed a further short period for the employers to produce evidence (either oral or on affidavit) as to the extent of the search which had been made or as to the system of record keeping which they claim results in there being no documents of the kind in question. We think he should have done so. He resorted too quickly to a punitive measure. He did not follow the practice of the High Court as Tribunals had been directed to do by the President of the EAT in Virdee. For that further reason we would allow this appeal.During the course of the hearing of this appeal, we considered the words of Rule 4(7) and in particular the question of when the jurisdiction arises to issue a notice under that rule. Mr O' Dempsey submitted that the fact that the notice is sent to the `the party who has not complied with the requirement' indicates that the by the time the notice is sent out, it has already been determined that there has been a breach of the order. On a strict construction of the rule, we can see that that might be so. However, it is far from the reality of every day life. What should happen in a case such as this, where the parties disagree as to whether there has been a breach of the order? We think it is right that the Chairman should convene a rule 4(7) hearing but his first task is to decide whether there has been a breach. That may not be clear. Even if it is, he should not proceed immediately to impose the penalty of strike out but should consider giving the kind of opportunity which, as we have already said, is usually given in the High Court.We do not wish to lay down any definite rules as to how a Chairman should proceed in cases of this kind. The approach must be tailored to meet the circumstances of the case. Tribunal Chairmen have a wide discretion as to the way in which they conduct interlocutory proceedings. But they must act in accordance with the principles set out in Virdee. There may be other options open to the tribunal. It may be, for example, in a case in which there is a dispute about whether documents exist, that the Chairman should consider whether there is any other way of obtaining the information which was sought from the discovery of documents. This Chairman did consider whether it would be sensible to order the answering of questions. Such a course will often avoid the difficulty of whether particular types of documents exist. In the circumstances of this case, it seems to us that the Chairman's initial idea of ordering that questions be answered was sensible and it is a pity he was dissuaded from it.For the reasons given earlier, we allow this appeal and quash the order for costs. The Notices of Appearance stand for the present. We understand that a date has been set in the near future for the full hearing of this case. If that had not been so, we would have sent this case back either for re-hearing or for further consideration by the Chairman in the light of this judgment. In the event, we do not do so. We think it is high time this case is disposed of. The hearing should take place as planned before a tribunal of three. A different chairman should preside. The applicants may, if so advised, pursue their arguments at the hearing that the Notices of Appearance or parts of some of them should be struck out for non-compliance with the order for discovery.