Bruce v. Thomas Miller & Co [1999] UKEAT 451_99_2804

EAT
Bruce v. Thomas Miller & Co
[1999] UKEAT 451_99_2804 · 1999-04-28
THE HONOURABLE MR JUSTICE LINDSAY: We have before us by way of an interlocutory appeal, an appeal by Mr V M Bruce in the matter Bruce - v - Thomas Miller & Co Limited .Mr Bruce's Notice of Appeal is dated 5 April and he describes the decisions appealed against in that he says:

"Paragraph 3, the decisions are dated

3.1 3rd March [extended reasons dated 31st march 1999] refusing to order3.1.1 exchange of witness statements 14 days before the hearing date - the Chair's reason being that Counsel is usually involved late and may wish to change the statements3.1.2 all the Particulars and Discovery sought by letter dated 29th December 1998 except number 1.4.2]3.2 15th March 1999 refusing to order the provision of the information sought by the Appellant's letters of 4th and 13th March 1999."Mr Bruce has appeared before us in person and Mr Booth has appeared for the Respondent, Thomas Miller & Co Ltd. A rather full look at the procedural background is necessary to understand the foreground and I regret that it will take a little time to go through the history of the matter, but I think the history has to be understood if the present is to be understood.On 28 November 1998, Mr Bruce, a disabled solicitor, instituted proceedings by an IT1 alleging discrimination contrary to the Disability Discrimination Act 1995. The Respondent is Thomas Miller & Co Limited and the alleged date of the discrimination is 30 September 1998. That referred to events which were as follows: on 6 September 1998 Mr Bruce had responded to an advertisement in "The Times" for a Claims Handler in Miller's professional indemnity division. On 30 September he was written to saying that he would not be called for interview. The advertisement, he was told, had attracted a huge response - there was some suggestion that some 57 people responded to that advertisement for the professional indemnity job. On 27 November he sent a 5 page Disability Questionnaire to Miller's.From an early date Miller's accepted that an administrative error had been made in their handling of his response to the advertisement. It was that Mr Bruce's response to the professional indemnity advertisement had been mistakenly been put in with the papers of responses to some other advertisement for different jobs that had been advertised for by Millers, although the advertisement for the other jobs were some weeks apart from the professional indemnity job. The other jobs can be called "Marine" or "MH" under the abbreviations in the papers describing one of the jobs. The other was "THA". It has to be understood that Mr Bruce had not applied for either of those other jobs and it is not, as I understand it, part of his case that he had the appropriate qualities in order to expect acceptance for those other jobs. We do not understand him to be saying that he was discriminated against in relation to those other jobs. It would be very hard to say that one had been discriminated against in respect of a job for which one had not applied, and he had not applied for those other jobs.The parties, Millers on the one hand and Mr Bruce on the other - Miller's being then represented by solicitors, Mr Bruce representing himself - moved forward in correspondence. Mr Bruce pressed for certain particulars. On 28 January 1999, the Employment Tribunal wrote to both sides. It was letter on behalf of the Chairman and it said, so far as is material for present purposes:
"A chairman of the tribunal considers that a hearing for directions is desirable in this case. The hearing will take place at 12pm on Thursday 25 February 1999"
and it gave the address. It said that it would before a Chairman sitting alone, and it said its object was:-
"(a) clarify the issues in the case and give any necessary orders for Further Particulars. (b) consider what, if any, orders are required for disclosure of documents and the attendance of witnesses. (c) arrange if possible for agreement as to documents. (d) consider how long the case is likely to last and give directions as to the date and length of the hearing. (e) give any other directions which may be necessary for the fair and expeditious disposal of the case.
On 29 January, Mr Bruce replied to the London (North) Employment Tribunal and said, inter-alia, "I consider it unreasonable to expect me to spend a day travelling to attend a directions hearing in London." However on 11 February, the Employment Tribunal answered by saying:
"It is a matter for you as to whether you attend the interlocutory hearing. It will proceed in your absence. If you can agree directions with the respondent's solicitors, please confirm, and the correspondence will be put before the chairman at the hearing."
So it looked as if the hearing for 25 February would go forward and indeed that was the case. There was oral argument and attendance by the party or representatives on both sides on 25 February. They were able to address the chair on that day. On 3 March, the Employment Tribunal put into letter form and sent off to both sides what had been orally ordered at that directions hearing on 25 February. The letter of 3 March begins:
"This is to put on record what was decided at the interlocutory hearing which was held at 12 noon on 25 February before Enid Prevezer (Chairman) when the Applicant appeared in person and Ms Melville of Counsel appeared for the Respondents."
The letter, which is not short, sets out the issues in the case, numbering them 1-4. There has been no argument addressed to us that the Employment Tribunal got those issues wrong or specified them in some misunderstood way.Mr Bruce's request for Further and Better Particulars was dealt with in that letter at some length.Paragraph 4 said:
"The Applicant had asked for Further and Better Particulars as contained in the letter of 29 December 1998 and it was ordered that the Respondent give Further and Better Particulars of: (a) who placed the application on the wrong file; ( b) on what date the decision was made not to appoint the Applicant; (c) in which newspapers the jobs advertised; (d) on what date or dates were the short-listing exercises conducted for (i) Claims Handling Marine vacancy (ii) Professional Indemnity vacancy (iii) Trainee Account Vacancy; (e) identification of all the persons who conducted the three separate short-listing exercises.

Such order to be complied with within 14 days i.e. by 12 March."

There was also an order for discovery in that letter. We shall refer to that later.There was an order in relation to witness statements at paragraph 6:
"It was ordered that witness statements should be prepared and exchanged seven days before the hearing which is listed to take place for three days from 26 to 28 May 1999 at 10.00am at 19/29 Woburn Place, London WC1H OLU."
Mr Bruce had, of course, achieved only a partial success and that did not satisfy him. A complaint was made to the Employment Tribunal on 25 February and he asked for extended reasons to be given, as he was entitled to do. On 4 March Mr Bruce sought to tack on a request for some further Further and Better Particulars, being particulars which he had overlooked asking for at the directions hearing. There has not, in fact, been any inter-partes dealing by the Tribunal with any request for those further Particulars that had been overlooked at the directions hearing.On 15 March, and in response, it would seem, to the request for the tacked on Particulars, the Tribunal answered:
"The Chairman of the Tribunal has decided that she will make no orders. The Particulars you require are in her opinion matters of evidence and can be obtained from the witnesses. The orders are to be complied with as stated in the letter of 12 March 1999 for the Further and Better Particulars and all others by 20 March 1999."
No extended reasons had by then been given for the decision made on 25 February 1999. On 16 March Mr Bruce made in correspondence further complaints about the treatment this case was receiving at the hands of the Employment Tribunal and then on 31 March, the "extended" reasons were given for the declining, in part, of Mr Bruce's request for Further and Better Particulars and Discovery at the hearing of 25 February. I say I put "extended" in inverted commas because the reasons were actually very short. What was said was:
"The reason is that the request for Further and Better Particulars and Discovery contained in the letter of 29 January 1999 was too onerous and too wide. The matters raised were matters of evidence and therefore not appropriate for an interlocutory order. It is not in the interest of justice for parties to ask for information which is not in the Chairman's opinion relevant to the issues."
That response excited the Notice of Appeal from Mr Bruce of 5 April, which is the matter before us.We have to remind ourselves of what our role is in cases such as this. It is not our role to ponder on whether we would have declined or would have given the Particulars which are represented by the balance of requested Particulars beyond those which were ordered in Mr Bruce's favour. Nor is it for us to ponder whether we would have granted or declined the request for discovery, or even whether most Employment Tribunals would have done so.The Employment Tribunal was exercising a discretion, both as to discovery and Further and Better Particulars - as conferred by Rule 4.1 of the Industrial Tribunals (constitution etc.) Regulations 1993 Schedule 1. The rule begins "A Tribunal may" - and one has to notice the word "may" , it is the classic way of introducing a discretion. "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:(a) require a party to furnish in writing to the person specified by the Tribunal, Further Particulars of the grounds on which that party relies and of any facts and contentions relevant thereto;(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 pursuant of this Rule is to be done."The question before us is, therefore, whether Mr Bruce has satisfied us that the Chairperson took into account factors which she should not have taken into account or failed to take into account factors that should have been taken into account or otherwise came to a conclusion to which no Employment Tribunal properly directing himself could have arrived.As for Particulars, the original request for them was not one addressed to the Employment Tribunal but to Messrs Miller's Solicitors on 29 December 1998 and it can be seen that some of the requests were what one commonly calls "fishing" requests, not as to the advertisement, for example, to which Mr Bruce had responded or the consequences of that advertisement and the handling of that matter but as to the other jobs and the responses to them and how they had been handled. Miller's had accepted from the outset, or very nearly the outset, that there had been an administrative error and they were not, as it seems to us, relying on their handling of the other jobs as part of their case or not, at any rate, to any extent which justifies the outstanding Particulars of those other jobs.In any event, the order for Particulars which we read, albeit using in different language, gave Mr Bruce a good deal of what he had asked for from Messrs Wragge & Co, Miller's solicitors. We have no reason to conclude that a just and convenient hearing of Mr Bruce's case cannot be had unless delivery of the Particulars not yet ordered but already requested is required as a matter of order in this case. We find it difficult to describe as an error of law the failure to order in Mr Bruce's favour more than he did obtain by way of the order which we have read.So far as concerns discovery, what had been ordered is under the heading of "Discovery of Documents" in the letter of 3 March. It was ordered that the Respondent give the following discovery and inspection of documents:
" (i) the short-listing criteria, including the person specification and job specification and all other relevant documents relating to the short-listing interviews for the post of Professional Indemnity Claims Handler within 21 days i.e. by 20 March (ii) it was ordered also that the application forms with names and addresses deleted etc. of those candidates who were short-listed should be produced by 20 March (iii) the Respondent also to give the dates of the issue of the letter to the interviewed candidates by 20 March."
Again, it is hard to resist the suspicion that Mr Bruce is fishing, hoping that something may be caught. That is not a request for true discovery. Indeed discovery is now, even in the High Court more limited than it used to be. In the course of the hearing I referred to the well-known Peruvian Guano case, a case which will come as no surprise either to Mr Booth or to Mr Bruce. Discovery is now somewhat cut down from the level spoken of in that case and is now chiefly that one is to discover only documents upon which one is intending to rely and also which, upon a reasonable search, one sees to be adversely affecting one's own case or supporting the opponent's case. That is generally thought to be more limited than as under the Peruvian Guano test that has regulated discovery for many years.In the Employment Tribunal discovery has never been automatic and the reason for that, no doubt, is that the expense and delay to which it so often leads has been deliberately sought to be avoided in Employment Tribunal cases. One only has discovery if it is specifically ordered. Certainly there is no reason to expect it to be wider in the Employment Tribunal than it now is in the High Court. Copies of all applications for the other jobs are not relied upon by Millers and if they have concluded after a reasonable search that not only shall they not be relying upon a document but that it does not seem to them materially to advance Mr Bruce's case or damage their own then they are quite right in resisting discovery of such documents. It does not justify a request for discovery that one has a vague hope that something might turn up. One is bound to see the suspicion on that ground reinforced by the document headed "The Appellant's Additional Argument" which Mr Bruce handed us today and which says, amongst other things:
"Properly informed logic dictates that if the Respondent refuses to disclose information it may have something to hide."
That seems to us to be a tacit admission that here we have a case of what , in a slightly different context, was called "Micawberism" - a hope that "something might turn up". As was the case with Particulars, we cannot see that a fair hearing will not be possible unless the unordered discovery material is ordered after all, nor can we see any error of law in the Employment Tribunal's decision.As for witness statements and their exchange only 7 days before the Hearing, Mr Bruce, as a trained and experienced solicitor, will be better able than most quickly to digest whatever material is furnished 7 days before the Hearing. Many tribunals specify 14 days and many, equally, specify 7, but, at all events, one cannot describe as an error of law a preference for 7 days rather than 14 days before the Hearing for the exchange. Of course, nothing we say (I do not wish to encourage such application) precludes Mr Bruce at some later Hearing applying for yet further material, be it by Discovery or by Particulars, if he can make a compelling case out to the Employment Tribunal on the facts as they have then emerged to be that justice requires whatever material he is then pressing for. It could be, one has to accept, that if he were to make a compelling case at some later stage - for example, during the Hearing - that time and cost might then transpire to have been thrown away in that an adjournment then needs to be sought. That is a risk that has to be taken into account whenever material is declined as a matter or earlier order. But the fact that that is a theoretical possibility does not justify an order at this stage. The Employment Tribunal has the present task of trying to anticipate what will prove relevant and what is fair to be required as a matter of order at this early stage and it has, it seems to us, done its best in that regard and only if error of law emerges can we or should we interfere with that discretion. As we have said, it seems to us that a fair and expeditious Hearing is possible without the material that has not been ordered. Manifestly, the orders that have been made by the Tribunal are within the powers of the Tribunal; it has not been urged otherwise. Doing the best we can, we see no error of law that justifies interference by us and accordingly at this interlocutory stage we dismiss the Appeal.We now deal with the costs in the Bruce -v- Thomas Miller & Co Ltd matter. Mr Booth, on behalf of Miller's, has asked that an Order for costs be made against Mr Bruce on the ground that the Appeal was unreasonable in the sense that the Rule requires which embraces other expressions such as scandalous, vexatious, frivolous and so on. We have not found it easy to determine this question but on balance, decide that no order should be made against Mr Bruce. It has been, so to speak, a close run thing. Quite what is reasonable and what is unreasonable is not a matter that can be discerned rather like litmus paper into a chemical substance and having a clear result. One has to have regard to shades of things and here we have found it difficult. The Miller company has handed in the list of Employment Tribunal matters involving Mr Bruce, to indicate his experience in Tribunal and no doubt in Employment Tribunal matters and it is plain that Mr Bruce is very experienced. It may well, at some future application, not necessarily in the Miller case but in some other case, be a factor borne against him, that he has, so to speak, narrowly escaped an order in this Appeal and that that ought to conduce to the making of an order in some other Appeal. We will, of course, leave that consideration to the other Appeal, but in this particular case, narrowly, so to speak, we have decided that no order should be made against Mr Bruce.