Lazarus v London Borough Of Hackney [1998] UKEAT 796_98_0107

EAT
Lazarus v London Borough Of Hackney
[1998] UKEAT 796_98_0107 · 1998-07-01
MR JUSTICE KIRKWOOD : This is an appeal by an employee, Mrs Lazarus, against an interlocutory decision of an Industrial Tribunal sitting at London (North) in May 1998. The decision was to refuse leave to Mrs Lazarus and her Counsel for him to take her instructions on certain documents after the examination-in-chief of Mrs Lazarus had commenced. The hearing was on 6th and 7th May and the extended reasons for the decision were given on 19th May 1998.What seems to have happened is that on 27th August 1997 Mrs Lazarus complained to an Industrial Tribunal of discrimination on the ground of race. That is said to have arisen out of her part-time employment in administration by the London Borough of Haringey. The case came on for hearing before the Industrial Tribunal on 6th May 1998, set down for three days.At the beginning of the first day Mr Panesar, Counsel for Mrs Lazarus, told the Industrial Tribunal that he had just received a set of documents from the respondent and needed time to study them with his client. The respondent explained that copies of the documents had in fact been supplied to a representative of Mrs Lazarus with the information that the originals would be brought to the tribunal. From correspondence it appears indeed that the documents supplied were supplied, or first supplied, in June 1997 in the context of disciplinary proceedings. On 24th April 1998 the Commission for Racial Equality who were representing Mrs Lazarus wrote a letter:
"Please could you have available at the hearing, the originals of the documents copied to Mrs Lazarus with the letter to her from Mr Colin Williams dated 16 June 1997; and the original of the "Personal Personnel record" copied with your letter under reply. Please confirm by return that those originals will be available."
Apparently no requests had been made for inspection of the originals at the respondents' offices, and no application had been made to the tribunal for discovery. That is a matter referred to by the Industrial Tribunal. It is in a sense all the more surprising to us since the copies that had been made available and were available to the advisers contain marginal notes, apparently made by Mrs Lazarus' union representative, which indicate in certain instances that the document is or may not be complete. However, that is the state of affairs that was reached. So Mr Panesar asked for time to look at the material handed to him that morning. The tribunal gave him 45 minutes.At the end of that period, the tribunal was informed that in the light of Mrs Lazarus' witness statement and the documents to which we have referred, the possibility of settlement was being discussed and the Industrial Tribunal allowed Counsel another 15 minutes to see where that possibility might lead.At the end of that time Counsel informed the Industrial Tribunal that they had not been able to agree a settlement, but they were agreed that in the light of the further documents that would now need to be disclosed and the matters those documents raised or would raise, the case would take six days rather than the three allowed. Both Counsel, therefore, applied for the case to be adjourned at that stage and refixed.The Industrial Tribunal decided to proceed.It was by now 11.45 a.m.. Mr Panesar asked for further time to consider and take instructions on the documents he had had that morning, and the Industrial Tribunal gave him until 2 p.m.At 2 p.m. it appears, so far as we can ascertain, that no further request for time was made. Nor was submission made at 2 p.m. that the original documents, in fact produced that morning, were more voluminous than the documents previously disclosed. So the hearing began at 2 p.m. on 6th May 1998.The afternoon was taken up with Mrs Lazarus going through her written statement of evidence and being asked questions on it both by Mr Panesar in chief and the Chairman. The case was adjourned, with that exercise not yet complete, until the next day, 7th May 1998.The second day began with the respondent producing more documents and a sheaf of computer printouts. We have been told that the documents produced on the second day were documents relevant to Mrs Lazarus' comparator.Mr Panesar was a little late that morning and did not have a chance to look as those fresh documents before the tribunal sat at 10.15 a.m..At the end of the morning sitting, Mrs Lazarus was still giving evidence-in-chief. Mr Panesar asked to be allowed to speak to his client over the adjournment both about the new sheaf of computer printouts produced that morning and the documents that had come to him the previous morning.As to that latter, the tribunal took the view that Mr Panesar had had ample time to take instructions the previous day and, indeed, could have done so before that if Mrs Lazarus' advisers had taken one or other of the steps available to them, namely, inspection of the documents or a formal request for discovery.The Industrial Tribunal said this in its extended reasons:
"9 In conducting these proceedings the Tribunal always endeavours to be fair to both sides. In this case both the Applicant and the Respondents are represented by experienced counsel. Concessions were made to the Applicant by giving her counsel ample time to review the documentation before she commenced giving her evidence. It is a basic rule, which the representatives well understand, that once a witness had commenced giving evidence to the Tribunal, there should be no further instructions or advice passing between that witness and her representatives. The documents presented on 6 May are the original of copy documents which were in the possession of Mrs Lazarus's representatives well before the hearing. The originals comprised only a handful of documents which could have been perused and on which instructions could have been taken, in our view well within the time allowed to Mr Panesar on 6 May."
So the tribunal did not allow Mr Panesar to take further instructions on those documents. It did, exceptionally, allow him to take instructions on the computer printouts produced that morning, as well as on any other documents produced consequentially.We have today an affidavit sworn by Miss Grant, a solicitor, employed by the Commission for Racial Equality, in which she says that the Commission had become involved in August 1997, that a complaints officer prepared a report for committee in November 1997 and the committee decided on 26th January 1998 to grant legal representation to Mrs Lazarus. The case was allocated to Miss Grant in February 1998 and she made arrangements to and did see the appellant on several occasions. One of those occasions was 23rd April, when she discussed with the appellant papers recently received and continued with the appellant the preparation of her statement of evidence for the hearing. She says that:
"During the course of those discussions it became apparent that some of the fourteen copy pages which the Respondent had enclosed in the letter dated 16 June 1997 to the Appellant had been or may have been altered prior to the making of copies which were sent to my Client. It was for that reason, in order to look at the face of the original of each of those documents and identify places on each or any of them where alterations might have been made that I asked the Respondent's solicitor, in my letter of 24 April, to bring the originals to those documents along to the hearing on 6 May."
Miss Grant said that she had not any reason at that time to believe or suspect that any of those documents would have writing on the back of any of the fourteen pages; nor that any of the documents would consist of more than one page. Miss Grant says that the reason she did not inspect was because she was too busy and the reason she did not apply for discovery was that by then the hearing was close and she thought that with the proximity of the hearing her application might be unsuccessful. Those are the matters that she indicates to us lie behind the circumstances in which the tribunal disallowed the taking of instructions on 6th May documents when it came to the lunch time adjournment on 7th May. The reason that those matters were not particularly put before the Industrial Tribunal was because Miss Grant was not present at the Industrial Tribunal hearing beyond the morning of the first day.At the end of the second day of the hearing Mrs Lazarus had completed going through her written statement of evidence but she was still being examined-in-chief by Mr Panesar. The tribunal saw that examination-in-chief lasting until the middle of the following third day. The tribunal took the view that it would not be practical for Mr Panesar to continue his examination-in-chief until he had the chance to confer with his client not only upon the computer printout produced on 7th May, but also on documents that may emerge from a consideration of the printout. Also the tribunal thought that the case would take another five or six days to hear. So in the result, it adjourned at that stage at the end of the second day, and fixed the adjourned hearing for six days in August 1998.In the meantime, pursuant to the directions of the tribunal, Mr Panesar was to be and is free to take instructions from Mrs Lazarus on the printout produced on 7th May and documents arising subsequently as a result of perusing the printout, but Mr Panesar was not to be and is not free to discuss with Mrs Lazarus the documents that came into his hand on the morning of the 6th May 1998.Mrs Lazarus appeals against that ruling about the documents. In her Notice of Appeal and skeleton argument it is argued that it was an inconsistent ruling by the Industrial Tribunal, with the bizarre result that during the period of adjournment of examination-in-chief instructions may be taken on one class of documents and not on another.Further, it is said on Mrs Lazarus' behalf that the copies supplied in advance of 6th May hearing were not true copies, in the sense that some of the originals had marking on them that did not appear on the copies, in particular on the reverse side of the originals.It is not clear to us to what extent, if at all, Mr Panesar put before the Industrial Tribunal a submission that the originals differed significantly from the copies or the extent to which the documentation supplied on the morning of 6th May exceeded in quantity the documentation that had previously been copied.The further submission is made that the tribunal appear to be punishing Mrs Lazarus for the fact that her advisers did not arrange to inspect the documents or apply for discovery in advance of the hearing. It is said that the tribunal has not weighed in the balance the prejudice to Mrs Lazarus of not allowing her to give her lawyers instructions on the documents.Counsel presenting the appeal today for Mrs Lazarus made the broad submission that the decision of the tribunal was unreasonable or perverse. He told us, frankly, that the 45 minutes allowed for perusal of the documents on 6th May was not in fact used for that purpose but for the purpose of discussions.That is a point, it seems to us, the tribunal had in mind in allowing a further two hours and 15 minutes from 11.45 a.m. to 2 p.m..Counsel today says that Mr Panesar had not in fact finished reading and taking instructions on the documents by 2 p.m. on 6th May, although, as we have observed, there is no indication that he asked the tribunal for any further time.We have been shown in a bundle the documents in fact available to Mrs Lazarus and her advisers in advance of the hearing on 6th May (it has to be said, very well in advance of the hearing on 6th May) which run to some 14 pages. The documents produced on the morning of 6th May which, contain originals of those produced in copy form earlier, but together with other documents associated with them, run to something like 58 pages.We have been at pains to try to ascertain the extent to which the documents produced on 6th May in fact call for the taking of specific instructions. That is something that will have been in the mind of the Industrial Tribunal and we have tried to understand the point about it.However, neither Counsel is able to show us today the respects in which instructions need to be taken, otherwise than in a purely speculative way, or why it was that the 2¼ hours allowed by the Industrial Tribunal, which the tribunal regarded as ample time, was not in fact sufficient.As the tribunal itself said it is really highly unusual for provision to be made for instructions to be taken once evidence-in-chief is underway. It is a rule of practice that is very well known to all practitioners and applied in virtually all litigation. Exceptions to the rule can only be allowed with the leave of the court or tribunal hearing the case. The reason for the rule is obvious. It is because of the risk that even, inadvertantly, the evidence yet to be given by the witness may become coloured by the course of discussion with legal advisers.The granting of leave to take such an exceptional course is a matter within the discretion of the Industrial Tribunal who have to do their best to provide a balance of justice to both parties. The Industrial Tribunal here was clearly of the view that ample time had been allowed in respect of the 6th May documents and we are in no position at all to make any sort of finding that the tribunal was wrong in that regard.Having reached that decision, and exercising its discretion in the light of it, its seems to us that the conclusion that there should be no further discussion on those documents, whilst there might be discussion in relation to documents produced on 7th May and subsequently during the period of adjournment until August, was a decision that lay within the ambit of discretionary decision of to the Industrial Tribunal.We are unpersuaded of any error of law. We are satisfied that it cannot properly be described as a perverse decision in any meaning of that word. The result is that this appeal will be dismissed.