MR J L AREAN v SMITHKLINE BEECHAM PLC [1999] UKEAT 1071_99_0510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1071_99_0510Case No Appeal No. EAT/1071/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J L AREANAPPELLANTSMITHKLINE BEECHAM PLCRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 5 October 1999
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the Respondents THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : We have before us a very late interlocutory appeal against the decision of the Chairman alone on 14th September. That decision is to be found in a letter. The appeal is in the case Mr J L Arean v SmithKline Beecham PLC . The appeal is on behalf of Mr Arean. The letter of 14th September says this:
"Thank you for your letter of 8 September 1999, which has been referred to a Chairman, who directs as follows. A Chairman refuses to grant your request for an order on the basis that as far as the Chairman can tell from your letter you are seeking discovery of document in order to bolster your case. This is not the function of a discovery order. Furthermore a Chairman cannot order a party to supply copy documents. Your request is therefore refused."
[2]The chronology appears (I say 'appears' because there is no one before us today) to be as follows: the employee's employment terminated on 28th January 1999. An IT1 was received on 26th April, in part hand-written and part typed, and the IT3 is dated 4th June. On 28th June (it seems, we have not got the letter in front of us) the applicant, Mr Arean, possibly by his friend, Mr J M Perez Sebastia, requested certain documents from the employer. We have not got that list and so we cannot tell how relevant or irrelevant that list of documents was to the issues in the case. On 2nd August 1999, it would seem (and again we have not got the letter) that request for documents was repeated. On 10th August there was an interlocutory order which identified, in greater detail than had hitherto obtained, the issues in the case. Paragraph 2 of the interlocutory order of 10th August says this:
"2 The applicant has provided further particulars of what relevant statutory rights he alleges have been infringed under the provision of Section 104 Employment Rights Act 1996. They relate to:- (i) a question as to whether the applicant received appropriate holiday pay at the termination of his employment; (ii) whether or not the applicant received his proper performance related pay entitlement; (iii) the applicant was not provided with a written statement showing the proper particulars of his employment under the provisions of Section 1 Employment Rights Act 1996; (iv) there were contradictions regarding his pay statement and performance related pay entitlement and that the February and March payments were wrong."
So that sets out, in effect, the issues that were likely to become relevant at the main hearing, which we understand is fixed to begin on 6th October 1999.[3]So far as concerns the provision of documents from one side to another, that order of 10th August did make a provision, namely:
"3 Both parties shall supply to each other within 14 days of this hearing a list of documents that they propose to utilise at the hearing. Appropriate arrangements should be made between the parties for the provision of any copies. … 5 The parties shall agree a bundle of documents for use at the hearing which should be paginated."
[4]Paragraph 3 does not say that the documents to be relied on have to be within the parties' own possession, custody or control. Read literally, A can specify that he intends to rely on a document held by B.[5]We would guess, although it is not altogether clear, that Mr Arean and the friend who has represented him, Mr J Perez Sebastia, are Spanish. It may be that there has been some confusion from linguistic differences; one cannot tell. But it does seem that no list of required documents was supplied within the 14 days within the provision of that order of 10th August 1999. It may be that Mr Arean expected that documents which he had specified in his earlier letters of 28th June and 2nd August would be specified in SmithKline Beecham's list, but there is no reason why SmithKline Beecham should have chosen to specify that they would rely on documents which Mr Arean had requested.[6]On 14th September, as I mentioned earlier, came the decision which is being appealed against. But the appeal was not lodged in any way at all until 1st October. We regard it as significant, when plainly matters should have been proceeded with quickly because of the imminence of the full hearing of the Employment Tribunal, that we have had no explanation whatsoever, that although on 14th September it was indicated to the appellant that his application for discovery was declined, he did nothing by way of appeal until 1st October.[7]Strictly speaking, it seems to us, that the decision of the Chairman to refuse an order for discovery was entirely justified. An opportunity had been given for a specification of a list of document within the period of 14 days specified by the order of 10th August and, so far as we can tell, no list was served by Mr Arean or his friend, Mr Perez Sebastia.[8]We had expected that somebody would appear this morning on Mr Arean's behalf. He would have been in difficulty because he would have had to explain, inter alia, why nothing was done between 14th September and 1st October. He might have improved his case by saying that perhaps because of linguistic or other difficulties there had been some form of misunderstanding, but we have heard nothing whatsoever on that score. We are not in a position to judge whether the documents which have been declined were relevant or irrelevant because we have been given no indication of what precisely they were.[9]It is fair to say that the Chairman's reasons for refusing discovery are a little shaky. He says that the request was refused because "the Chairman can tell from your letter you are seeking discovery of document in order to bolster your case." Well, of course, if every application for discovery which was pursued in order that the seeker might bolster his case was refused there would be virtually no orders for discovery. However, we think that fairly interpreted, what was meant was that this was a "fishing expedition" which was thus properly declined. Certainly we have had no material laid in front of us to suggest otherwise.[10]We are quite unable in the absence of an appearance and argument from the appellant to allow this appeal. Accordingly we must dismiss it. [In the absence of the respondents, no order for costs was made.]