Lynch & Ors v London General Transport Services Ltd [1998] UKEAT 912_98_0110

EAT

Lynch & Ors v London General Transport Services Ltd

[1998] UKEAT 912_98_0110 · 1998-10-01

THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This appeal arises in relation to an application for further discovery in complicated proceedings relating to transfers which occurred in the late 1980s following privatisation in the transport system. By transfers I do not wish to imply that I am tying the hands of the Tribunal to find that there was a relevant transfer, I mean to use that term in the most general sense.

There was a hearing at the Industrial Tribunal on 18 March 1998, which was attended by Mr Ibekwe who is a trade union representative giving the benefit of his services to the Applicants, and Mr Wagstaff who is appearing as solicitor on behalf of the Respondents. On that occasion, the Industrial Tribunal sought to identify with precision what the issue was and which is contained in paragraph 4 or their letter dated 3rd April 1998 which was sent to both parties following that hearing.

The issue was defined as:

"whether by virtue of the Transfer of Undertakings Regulations 1981 and/or Directive 82/89 of the Council of the European Communities there was in the case of any of the Applicants a relevant Transfer of an Undertaking by reason of the making of the London Regional Transport (Bus Asset) Transfer Scheme 1993 and the carrying out of the transactions therein provided for."

Paragraph 6 required the parties to make discovery by list within 14 days in relation to the identified issue. The Respondents purportedly complied with that order, the Appellants say that there has not been complete compliance and I have no doubt that the learned Chairman concerned, Mr Bano made it clear, as we have been told, that if there were any further discovery applications to be made, then the Tribunal could be invited to deal with them in writing.

The Applicants made an application for further discovery, there are four items referred to in a letter they sent to Mr Wagstaff dated 1 May 1998 and Mr Ibekwe has indicated that he is pressing only matters in numbers 2 and 3 and not items 1 and 4. His application for those documents having been refused by the Industrial Tribunal on 22 June 1998 on the basis that the learned Chairman did not consider that any further order was necessary for disclosure or specific documents.

Item 2 relates to the sale transfer of the shares of London General Transport Services Ltd, that is the Respondents from London Buses Limited to London Regional Transport during April 1994. The response of the Respondents to that request is that they do not have such documents and in any event, such documentation as would evidence the sale or transfer of the shares could be publicly available by conducting full searches of the various companies.

Mr Ibekwe says that they carried out searches, but they do not reveal the transactions referred to. It seems to us that as things stand at the moment, there is no need for a further order for specific discovery, parties cannot be required to disclose that which they do not have in their custody possession or power and if there are publicly available documents which will provide the applicants with the assistance that they are seeking from these documents, then that would also be a good reason for refusing an order for discovery at this time.

In relation to category 3, we wish to record what we were told this morning on behalf of the Respondents, namely, that the payment of £14m approximately, was in respect of a debt owed by London General Transport Services Limited which was paid by Mokett Ltd to London Regional Transport in about November 1994. It was submitted by the Respondents that the transaction in question was not something that was relevant to the issue as defined at the hearing to which I have referred. It is apparent to us as a result of the submissions which have been made in this case that the Industrial Tribunal may have to be asked to further define what the issues are, because it would obviously be unsatisfactory that the very clear order that has been made should be interpreted differently by the parties, but that is not a matter with which we can deal at this time.

There is an issue as to whether Directive 82/891 applies in the circumstances of this case. It seems to us that it may be appropriate that that issue should be considered separately and if the Tribunal is satisfied that it has an application in this case, then the question of what further documentation would be required should then be considered. It does not seem to us likely that the documents mentioned in category 3 are necessary to form a determination of the issues as to the Directive applies or to whether it does not apply, but that said, if at any stage of these proceedings it should become plain to the Industrial Tribunal that it would be necessary to look at those documents in the context of the preliminary issues. We have no doubt that the Industrial Tribunal will consider any such application even though it is made during the course of the proceedings themselves, and will no doubt recognise that in complicated litigation of this kind, it is not a sufficient reason to refuse to make an order for discovery during the course of proceedings merely because it has been made at a late stage. Although of course they will wish to exercise their discretion as to whether to make an order in all the circumstances.

This is complicated litigation as we understand it, and it seems to us in those circumstances that it might not be at all surprising if a late application for discovery did emerge during the course of the hearing itself.

Accordingly, we are not satisfied that the Industrial Tribunal Chairman has erred in the way in which he has exercised his discretion in refusing to make an order for discovery of these documents at this time, but we repeat that it may be that a different order would be made if the circumstances are justified at a later time.