Olusanya v London Borough Of Hackney [1998] UKEAT 625_98_0107

EAT
Olusanya v London Borough Of Hackney
[1998] UKEAT 625_98_0107 · 1998-07-01
MR JUSTICE KIRKWOOD : This is an appeal on an interlocutory matter to do with discovery of documents. The appellant has pending before an Industrial Tribunal or Industrial Tribunals a number of complaints. We do not have details of them all, but so far as we understand they arise out of her employment at Jubilee School in the London Borough of Hackney. It appears that the various respondents are the Head Teacher, the Board of Governors, the Chairman of the Board of Governors and the London Borough of Hackney.At the outset I informed Counsel for the appellant in open Court of my acquaintance with the Chairman of the Governors. I have known him for some considerable time in connection with duties I have at the Judicial Studies Board. The Chairman of the Board of Governors is a regular contributor at training conferences. Having taken instructions about that disclosure by myself, Mr Pullen indicated that his client wished the appeal to proceed.The appellant has been acting in person. On 7th July, two days ago, she was granted Legal Aid for this appeal. Counsel was instructed on her behalf less than two days ago. He acted promptly, informing the other side and the Employment Appeal Tribunal of his involvement and he prepared a skeleton argument which is concise and which reflects the appellant's Notice of Appeal.The respondents wrote yesterday to the Employment Appeal Tribunal saying that they had that morning, that is yesterday morning, received the skeleton argument and have had no opportunity to respond. They say that although the Employment Appeal Tribunal's letter of 12th May made quite clear that skeleton arguments were to be lodged not less than 14 days before the hearing together with three copies of any other papers which would be used in Court, they had not received any other papers or bundles, nor a written chronology. In those circumstances, they said, they were not in a position to have sufficient time to prepare for the appeal.The grounds of opposition to the appeal already lodged by the respondent essentially relied upon the reasoning of the Industrial Tribunal. That letter does not in terms contain an application for an adjournment. The respondents had notice of the appeal and, as I have indicated, filed an answer. The respondents had notice of the hearing date, no appearance had been made by the respondents today, and no indication has been given to the Employment Appeal Tribunal why the respondents, (one of the respondents being at least being a public body) is not represented before the Employment Appeal Tribunal today. The respondents were well aware, as I say, of the date and that until very recently the appellant was in person; and we find the absence of any representation by the respondents before us today inexplicable. We resolved to hear the appeal.It seems to us that the relevant chronology, for our purposes, begins with a directions hearing before an Industrial Tribunal on 6th August 1997. On 18th August a letter was sent to the appellant from the Industrial Tribunal which began with these words:
"This letter is to record the matters which were discussed and on which rulings were given by the Chairman at the Interlocutory Hearing on 6 August."
The letter then addresses several matters and proceeds to this paragraph:
"The Applicant had made a request for discovery of 26 items and these were examined and rulings given of them."
The letter then sets out the 26 items in respect of some of which there was to be disclosure, in respect of others which there was not to be disclosure, and in respect of a third group there was to be partial disclosure of such relevant documents as may be found. The letter concludes:
"The Respondents are to complete discovery of documents and to let the Applicant have copies of relevant documents not later than Christmas 1997."
On 27th March 1998 the appellant wrote to the Regional Secretary of the Tribunals, a letter in these terms:
"The Industrial Tribunal ordered discovery of numbered documents 1-22 on 6 August 1997 at an Interlocutory Hearing.
I confirm that I have not received any documents before Christmas or up to now.The London Borough of Hackney sent me a letter stating that "the Council has every intention of completing discovery by 27 March 1998". This is untrue. They have failed to comply with the Chairman's written orders.

I look forward to your imminent reply."

On 8th April 1998 the London Borough of Hackney sent to the appellant a letter with a number of enclosures that purported to be in response to the directions given in August 1997 and, save as expressed within the letter, to be in compliance with it.On 17th April 1998 the appellant wrote a further letter to the Regional Secretary:
"The Industrial Tribunal ordered discovery of numbered documents 1-22 on 6 August 1997 at an Interlocutory Hearing to be given to me before Christmas 1997. These have still not been provided. I believe this to be a serious contempt of court."
In the next paragraph the appellant sets out the ways in which she contends that discovery had not been properly and satisfactorily completed and refers to a number of missing or illegible documents. That same day the Industrial Tribunal, of its own motion, held a further directions hearing and we are informed that the letter of 17th April was handed to the Clerk to the Industrial Tribunal with a copy to the respondents.On 21st April 1998 a letter was sent out to the parties from the Industrial Tribunal which began:
"1 I write on the instructions of the Chairman (Mrs J R Hill) to put on record what was agreed or directed at the hearing for directions on 17 April 1998, attended by the Applicant in person and Ms Matheson Harley, Solicitor for the Respondent."
The letter then details in the following eight paragraphs, numbered 2 to 9, various matters that were dealt with, but makes no reference whatever to the appellant's letter of 17th April 1998 to which I have just referred. The only reference to discovery is to be found at paragraph 10, that deals with a particular letter which was held to be irrelevant. It has nothing whatever to do with the bulk of discovery provided for August 1997, and no point arises on that on the appeal before us.On 6th May 1998 the appellant lodged a Notice of Appeal in which she said:
"The Order for Discovery has not been complied with. At a 4th Interlocutory Hearing the Chairperson denied that any such Order for Discovery was made on 17 April 1998. Mrs Hill was incorrect."
I take that to be a suggestion or allegation that on 17th April 1998 the Chairman denied that any order for discovery had previously been made.I should say that from that Notice of Appeal, we deduce, I think correctly, that the question of compliance with the directions given in August 1997 was raised; that the Chairman held that no order had been made in August 1997 and nothing was done by the Industrial Tribunal to see that it had been followed up as the appellant's letter of 17th April 1998 had sought.The Chairman's comments were sought upon the Notice of Appeal. Mrs Hill wrote to the Employment Appeal Tribunal on 28th May 1998 in these terms:
"1 I refer to the Notice of Appeal above.
2. The letter of 18 August 1997 which sets out what was decided at the directions hearing on 6 August 1997 makes no ORDERS under rule 4 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993. Any orders are accompanied by a penal sanction and can result in a claim or a defence being struck out.3 The Chairman on 6 August 1997, gave directions only, in response to the Respondents agreeing to provide certain documents."The Chairman there appears to draw a distinction between an Order drawn in a formal fashion with a penal notice and a notice of possible consequences, and the directions given by a Chairman on a directions hearing.The relevant rule is to be found at Rule 4 in Schedule 1 to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 . Rule 4(1) reads:
"A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion-
. ..(b) 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,and may appoint the time at or within which and the place at which any act required in pursuance of this rule is to be done."It seems to us that that is precisely what the Chairman did at the August 1997 hearing. We remind ourselves again of the words at the end of the letter "the Respondents are to complete discovery of documents and to let Applicant have copies of relevant documents not later than Christmas 1997". That seems to us to be in mandatory terms.Rule 4(6) of the Rules of Procedure provides, however:
"(6) Every document containing a requirement imposed under paragraph (1)(b) shall contain a reference to the fact that under paragraph 1(7) of Schedule 9 to the 1978 Act, any person who without reasonable excuse fails to comply with any such requirement shall be liable on summary conviction to a fine, and the document shall state the amount of the current maximum fine."
Rule 4(6) is in mandatory terms. Rule 4(7) provides:
"(7) If a requirement under paragraph (1) is not complied with, a tribunal, before or at the hearing, may strike the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether; but a tribunal shall not strike out or direct unless it has sent notice of the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."
That provision does not amount to a mandatory requirement that the order under Rule 4(1)(b) should be endorsed with a caution as to consequences of non-compliance. Rather, it provides that there can be no striking out or the like, without notice first being given that the tribunal is minded to take such a course. That notice can of course follow at a later date, but before the question of striking out or the like is considered.Returning to the Chairman's letter of 28th May 1998, she says that the letter of 18th August 1997 is not an order because it is not accompanied by a penal sanction (that is a reference to Rule 4(6)) and can result in a claim or defence being struck out (that is a reference to Rule 4(7)). The Chairman accordingly held that in the absence of a penal notice endorsed on the document emanating from the tribunal on 18th August 1997, that cannot amount to an order.The drawing of an order is a matter for the Industrial Tribunal and it is not a matter for the appellant, in particular an appellant in person. The directions given in the August 1997 hearing, reflected in the letter of 18th August 1997, plainly comply with Rule 4(1)(b). They are in mandatory terms as we have indicated. In all respect, subject to the absence of a penal notice, they comply with the provisions of the Rule.In our unanimous judgment, the Chairman of the Industrial Tribunal, Mrs Hill, was wrong to hold that an order had not been made in August 1997. There was an order for discovery. The proper course to have been taken at the April 1998 hearing was for the Chairman to address the point raised by the appellant in her letter of 17th April, and to explore the extent to which the directions given in August 1997 had not been complied with and to make provision to ensure the proper compliance with any outstanding matters. Accordingly, we are unanimously of the view that this appeal shall be allowed. It will be allowed for the reasons we have indicated.The result will be that the case must be remitted to the Industrial Tribunal for the question of discovery to be addressed in the way we have said it should be addressed. In remitting it to the tribunal we have in mind that there is a hearing fixed, as we understand, for September 1998. It will behove the Industrial Tribunal accordingly to put this matter in for early hearing to deal with this directions discovery point as a matter of urgency.The application for costs refused.