Pillay v Eurostar (UK) Ltd [1998] UKEAT 1492_98_1712

EAT
Pillay v Eurostar (UK) Ltd
[1998] UKEAT 1492_98_1712 · 1998-12-17
THE HONOURABLE MR JUSTICE LINDSAY: We have before us as an interlocutory matter, an appeal by Mr A Pillay in the matter of Pillay v Eurostar (UK) Limited. Mr Pillay has attended before us in person and notice has been given of the appeal to the Respondent's solicitors, that is to say to Eurostar's solicitors. They have not attended but have given a brief response.The procedural background is unusual in that what we are concerned about is an application for discovery, not before the hearing, but now well after part of the hearing. The procedural background is necessary to be understood.Mr Pillay, by his IT1, complains of race discrimination against the Eurostar company. On 3 and 4 October of this year, there was a hearing in which he presented his case to the Employment Tribunal. Mr Pillay's case was concluded by the end of those two days and the matter was adjourned until 7 January. One can therefore expect that the remaining part of the case will consist first of all of the Eurostar evidence-in-chief, then Mr Pillay's cross-examination of that evidence and then final speeches and, moving on, the decision. So, well after the 3 and 4 October, in other words after Mr Pillay's case was concluded, on 9 November he made by letter a long request to the Industrial Tribunal for an order for discovery. He pointed out in that letter that confidentiality was not itself a necessary bar to a document being discovered and cited the Nassé case. He set out categories of documents which he said he wished to have discovery of. Some seem to have been received, but some have not.On 16 November, Eurostar's solicitors wrote to Mr Pillay offering him inspection of some documents and raising questions as to the relevance of the documents which he was requesting and also taking points that some documents were confidential. On 17 November, Mr Pillay wrote again to the Industrial Tribunal requesting an order for discovery and drawing attention to the Eurostar letter of 16 November. On 19 November, Eurostar offered inspection of the originals of some documents which had earlier been inspected at a time when Mr Pillay was acting by solicitors. At the hearing of the 3 and 4 October and thereafter, and, I apprehend, for some time before the hearing of 3 and 4 October, Mr Pillay had been in person.On 20 November the Chairman dealt with the application for an order for discovery and his letter of 20 November says:
"The Chairman has considered the Applicant's request containing his letters of 9th, 12th and 17th November. The Chairman has also considered the Respondent's letter of 19 November. The Chairman has asked me to point out that the Tribunal has already heard evidence over two days and the Applicant's case is closed. The Chairman considers that the Respondent's letter of 19 November deals with the Applicant's request adequately and the Chairman declines to make any further order"
and then there is a mention of copies of exchange of correspondence.There was no appeal against that decision of 20 November. On 23 November Mr Pillay wrote again to the Industrial Tribunal pointing out that he wanted legible copies of the documents which Eurostar had already produced at the hearing of the 3 and 4 October and he wanted legible copies of the Respondent's bundle for use in cross-examination. He again referred to a request for other documents.On 25 November, Eurostar's solicitors wrote to say that they had already provided a legible Respondent's bundle and pointed out that some documents were difficult to photocopy. On 26 November, there was the decision against which Mr Pillay appeals. It says this:
"The Chairman has considered the Applicant's letter of 23 November but declines to make any further order for discovery of any new documents"

and then it continued:-

"The Chairman agrees that the Applicant should have legible copies of the documents on R1 and that we apprehend it is the Respondent's bundle to which I have referred. I note not only the offer made by the Respondent's solicitor in their letter of 19 November 1998 but also undercover of their letter of 25 November 1998, the Respondent's solicitors have now sent the Applicant a fresh bundle. The Chairman hopes this will resolve one of the Applicant's main complaints."
On 9 December, Mr Pillay wrote to Eurostar's solicitors saying that the copies that he had were still difficult to read and on 13 November Mr Pillay appealed to the EAT. The appeal is in fact directed only to the decision of 26 November. That is the background. As I mentioned earlier, we have heard Mr Pillay this morning.In Employment Tribunals discovery is not automatic as it would be in the High Court. There is plainly a policy to avoid the cost and delay that is so often an accompaniment to discovery. Discovery in the Employment Tribunal is only ordered when truly necessary on the facts of the particular case. An unusual feature here is that the Applicant's case is already closed after two days of evidence and in that circumstance, and bearing in mind the policy of avoiding the cost and delay of discovery save where truly necessary, one has a situation in which a truly exceptional case would need to be made for discovery at this very late stage.Mr Pillay argues in his written skeleton that the principle audi alteram partem has not been honoured by the Tribunal. Well, strictly speaking, neither side has been heard if one takes heard literally, because there was no oral application in relation to discovery. But both sides have been able to address and have addressed the Employment Tribunal on the question of discovery and there is no indication that Mr Pillay's correspondence on the subject is being ignored or has not been duly considered. It seems to us that there is nothing in this "natural justice" point.There has already been a fairly wide ranging discovery allowed in this matter. At this very late stage it is hard to resist the conclusion that what Mr Pillay is embarking upon, or seeking to embark upon, is what is commonly called a "fishing expedition", hoping that the documents that the other side might have in their custody include documents that might help his cross-examination. Well, a fishing expedition is not permitted even at an early stage and is even more difficult to obtain at a later stage such as this.It is quite plain that Mr Pillay is entitled to a legible version of the Respondent's bundle, but that has already been offered. It is very difficult for us to judge whether a legible version of the Respondent's bundle has already in fact been produced to Mr Pillay. He has held up one or two documents. We have not got copies of them and the better course, so far as concerns the legible production of the Respondent's bundle, is for us to leave that to be adjudged by the Industrial Tribunal at the adjourned hearing on 7 January or thereafter. The Employment Tribunal has already made quite plain that Mr Pillay is entitled to a legible copy of the Respondent's bundle, and if, when it is shown the papers, it adjudges that he has not had a legible bundle, and if it further adjudges that he has been prejudiced by not having it, well, Mr Pillay will, at the adjourned hearing, be in a position to ask for the matter to be adjourned. If it is the case that he has not been provided with a legible bundle, he will be able to say that the cost of the adjournment should be borne by Eurostar and that will be an application that the Tribunal below can respond to as they see fit, if it is made. But we emphasise that in our view he is entitled to a legible version and of course, the Employment Tribunal has not otherwise ordered.But, looking beyond that, to the wider range of documents which Mr Pillay would wish to have, there is a difficulty in our path and that is that we cannot hope to be in as good a position as the Tribunal below in judging what documents are truly relevant to his case. We have, as is common, a rather short form IT1 and a short form IT3 but what is relevant now, after two days of evidence, is not a matter that we could usefully judge. The better course is for us, as we said, to indicate that if at the adjourned hearing Mr Pillay makes a strong case for the production of particular documents and shows their relevance, well then, that will be a matter that he will be able to raise at the adjourned hearing and which those hearing the matter can respond to. They will have a far better idea than we could hope to have of what is truly relevant at this stage of the case. But at this late stage of the case, it does seem to us right that it should be incumbent on Mr Pillay, if he does make a specific application for specific documents, to support that by affidavit. In other words, it will be for him to set down in writing which particular documents he requires and to say on affidavit - that is to say that he will need to swear on the subject - precisely why that document or that class of documents is relevant at this late stage of the case and is believed to be in the possession custody or control of Eurostar. Nothing we say precludes the Industrial Tribunal from hearing such an application supported by affidavit should Mr Pillay make such an application.Looking more generally to the matter that is before us, in the absence of our being able to detect at this stage a true case for relevance and a true case for the necessity for any particular documents at this late stage of the case, we do not see it as right to upset the order which the Chairman made on 26 November. We do not set aside the Chairman's order of 26 November, which is the only order appealed against, but we indicate, as we mentioned, that Mr Pillay will not, by anything we say, be stopped from making a fresh application, supported by evidence , on the 7 January.With that indication, we otherwise dismiss the appeal.