MR T P CROOK v ROYAL AIR FORCE [2000] UKEAT 256_2000_0903

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 256_2000_0903

Case No Appeal Nos. EAT/256/2000, EAT/257/2000, EAT/258/2000 EAT/259/2000, EAT/260/2000, EAT/261/2000 EAT/263/2000

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR T P CROOKAPPELLANT

ROYAL AIR FORCERESPONDENT

Before

Mr Justice Lindsay

Date 9 March 2000

[1]APPEARANCES For the Appellant IN PERSON For the Respondents MS J FAULKNER (Solicitor) The Treasury Solicitors Queen Anne's Chambers 28 Broadway London SW1H 9JS MR JUSTICE LINDSAY (PRESIDENT) : I have before me seven appeals listed as interlocutory in the matter Crook against the Ministry of Defence, but sometimes listed as Crook against the Royal Air Force. Mr Crook is here in person and the Respondents, be it the MOD or the RAF, are here represented by Ms Faulkner of the Treasury Solicitor's Office. It is necessary to set out something of the procedural history of the matter.

[2]First of all, on 6 September 1999 Mr Crook lodged an IT1 with the Employment Tribunal at London (South). It claimed "harassment" against Group Captain J.D. Bullen, RAF. Mr Crook described himself in box 6 as the "Station Energy Manager". That IT1 was given, as they always are, a number and the last four digits of that were 90/99. There is, of course, no justiciable complaint known as "harassment" as such, but on 12 October the Civilian Personnel Branch at the MOD lodged an IT3, responding to that IT1. It pointed out that Mr Crook was then currently suspended as he was on a disciplinary charge. It said that Mr Crook had not sufficiently particularised his claim and that the MOD would ask for it to be struck out. Well, obviously, there was going to be a contest.

[3]On 27 October that IT3 was retroactively validated, putting aside any possibility of it having been challengeable as being out of time.

[4]On 1 December 1999 Group Captain Bullen was replaced by the MOD as the proper Respondent to those proceedings 90/99. Mr Crook was ordered to supply Further and Better Particulars. The mode in which that order was made was that, first of all the MOD was required to supply a request for particulars to the Employment Tribunal within seven days and then the Employment Tribunal would consider it and endorse it and pass it on to Mr Crook and Mr Crook was then going to have 14 days from the endorsement in order to supply the particulars then ordered.

[5]There was a provision for mutual inspection of documents within 21 days from 9 December, which was actually the date when the order was sent to the parties. The order also set the case down for a full hearing in March or April 2000, but there was no fixed date for the substantive hearing. So that was what had happened in 90/99.

[6]On 9 December 1999 Mr Crook lodged a second IT1, this time directly against the Ministry of Defence, and this was given a number the last four digits of which were 60/99. Box 1, which is the box in which the complaint is summarised, was a little inarticulate in that it said:

"Case Number 1402290/1999" (and that, of course, was a reference back to the 90/99 case) "

Detriment due to". It claimed that Mr Crook had been dismissed that very day, 9 December 1999. What it was claiming was that, in effect, Mr Crook had been unfairly dismissed following and by reason of protected disclosures under the Public Interest Disclosure Act. It also sought interim relief on the grounds of his having been unfairly dismissed.

[7]On 10 December an Employment Tribunal ordered the RAF in the case 90/99 to produce for Inspection by 22 December 1999 "all revelant (sic) documents". On 17 December 1999 the Tribunal, having presumably endorsed the Ministry of Defence's request for Further and Better Particulars, sent on to Mr Crook the request that it had approved and requiring Mr Crook to supply such particulars by 24 December, thereby, of course, not complying with their earlier provisions, which were to give Mr Crook 14 days from the endorsement, rather than 7 days. That, though, was the order.

[8]On 14 January 2000 the Tribunal made an order for production for Inspection by 21 January of documents "As set out at A only in the Applicants letter dated 8 January 2000". I have not seen the letter to which reference is made. Whether it made sense, if that letter was seen, it is hard for me to judge. The Respondent was given as the RAF though, truly, by then it should have been the MOD.

[9]On 27 January 2000 there was a hearing at Bristol in the case 60/99 before Mr C.F. Sara and two Members. The unanimous decision was that the application for interim relief in the case 60/99 was dismissed and Extended Reasons were given, as they had to be. I am not concerned today with the merits or demerits of that dismissal of the application for interim relief. On 4 February 2000 that decision was sent to the parties.

[10]On 16 February 2000 the Bristol Tribunal directed that there should be an interlocutory hearing to take place on 13 March 2000, to deal with four particular subjects and it is important that one should bear in mind what they are. The letter says:

"I am directed to inform you that the Chairman considers that an Interlocutory Hearing should be held in this case to decide: (1) Whether the application should be struck out under r.13 (1) (e) Employment Tribunals Rules of Procedure 1993 on the grounds that the [manner] in which the proceedings have been conducted has been scandalous, frivolous or vexatious, or alternatively (2) To conduct a pre-hearing review under r.7 Employment Tribunals Rules of Procedure 1993 (3) To consider whether any further order for discovery and inspection should be made. (4) To give directions for the hearing of the application."

And it gives notice that that hearing is to be at 10. 00 am on Monday 13 March 2000.

[11]There then begins the chapter of appeals raised by Mr Crook. On 2 March he lodged an appeal against a refusal by Mr Tickle to order discovery from (what I will call at this stage) the first firm of Solicitors.

[12]Then, the second appeal on 2 March, Mr Crook lodged an appeal against Mr Tickle's refusal to adjourn the hearing that had been fixed for 13 March.

[13]Then, thirdly, on 3 March, Mr Crook lodged an appeal against Mr Tickle's refusal to order discovery from ACAS.

[14]Fourthly, still on 3 March, there is an appeal lodged against Mr Tickle's refusal to bar the defendant from defending.

[15]Fifthly, on 4 March, Mr Crook lodged an appeal against a refusal by Mr Tickle to grant an order for Discovery against a second firm of Solicitors.

[16]Sixthly, on 5 March, Mr Crook lodged an appeal against Mr Tickle's refusal to order Discovery from a third firm of Solicitors.

[17]Finally, the seventh of the appeals is on 8 March. Mr Crook appealed against the refusal to grant him interim relief.

[18]Those are the seven separate matters that come in front of me this morning and we have to look at them separately.

[19]Looking first at Mr Tickle's failure to order disclosure against a Solicitor, Mr Millbourn, that is one of the appeals of 2 March. I have not seen in just what terms Mr Crook applied to the Tribunal for that relief. I have not seen the evidence, if any, that was adduced in support of it. If an order was made by Mr Tickle, the Chairman, I have not seen that either. But most importantly, the hearing of 13 March has, as one of its subjects, whether any further order for Discovery should be made. There is no reason at all why here the EAT should intervene ahead of the hearing of 13 March and, even if there was, there would be no sufficient material to permit me to act in any informed way.

[20]The second appeal of 2 March, which is concerned with Mr Tickle's refusal to adjourn the hearing of 13 March. Again I have not seen just in what terms application was made to Mr Tickle for such relief, nor any evidence in support of it, nor, indeed, any order refusing it, nor any reasons set out by the Employment Tribunal for refusing it. But it is important to note that Mr Crook's reasons for appealing, although not entirely consisting of complaints about disclosure, are very largely concerned about complaints on that subject and this is one of the very subjects which the hearing of 13 March has been convened to deal with. He will be able to complain of inadequate disclosure at the hearing on 13 March and he will be able to seek what order is appropriate, having regard to the terms of Employment Tribunals Rule 4 (1) (b). I have no conceivable ground upon which to intervene at this stage to adjourn the hearing of 13 March 2000, but I do pause to point out that Mr Crook's fears are, in some respects, misplaced.

[21]The first matter, as I have indicated, to be ruled upon on 13 March as things stand is the question under Rule 13 (1) (e) as to whether, upon the application of the MOD, Mr Crook's case is to be struck out on the ground that the manner in which the proceedings have been conducted has been scandalous, frivolous or vexatious. Mr Crook fears that without very substantial disclosure to him before 13 March, he will, so to speak, have his hands tied behind his back in meeting that complaint. But that, as it seems to me, is a misunderstanding of the nature of a strike-out under Rule 13 (1) (e). It is concerned (and concerned only) with the question of whether the manner in which the proceedings have been conducted has been scandalous, frivolous or vexatious. It is not an application which involves any great enquiry into the underlying merits, or demerits, of the case. If it were, then any striking out application would all too easily require the substantive hearing itself to take place, and that would be quite wrong.

[22]I am told by Ms Faulkner that already posted and shortly to arrive at Mr Crook's address will be a bundle of the papers on which the MOD is relying, in support of that first head coming up for dealing with on 13 March but if, when the hearing begins, Mr Crook wishes to argue that he has been put to a real disadvantage by not having had papers sooner, well, of course, that is an application that he can make to the Chairman on the day. I see no reason whatsoever to intervene and to adjourn the hearing of 13 March. So far from it being against Mr Crook's interests to have that hearing, it seems to me that it is vital that he should have it, so that he can argue the case on disclosure which he very much wishes to do. True it is that at the moment the order of play, so to speak, for that day begins with the striking out and only after that there would be the pre-hearing review and the consideration of Discovery and Inspection and so on. But he will be able to argue on the 13 th that that order is inappropriate and can make whatever case he can to suggest that that is so. The Chairman will not be bound simply by the order of play set out in the letter of 16 February if he feels that the order there set out is inappropriate. So much for that second appeal.

[23]The third appeal of 3 March is against Mr Tickle's refusal to debar the defence. Again, the application made, if there was one, to the Employment Tribunal for such relief has not been shown to me, nor any evidence that was relied on, nor have I seen the order, if there was one made by the Employment Tribunal, nor any reasons given for the order. There is, of course, a power to strike out but a formal procedure is required to be complied with - see Rule 13 (3) - and I have no papers to indicate one way or another, whether it was or was not.

[24]The question of whether Mr Crook is to be struck out is, of course, before the Tribunal on 13 March. Mr Crook tells me that he has already raised a counter-strike out, so to speak, asserting that it would be proper that the Ministry of Defence should be struck out, but it is not for hearing on 13 March. But, in the absence of the papers that I have described, it seems to me quite impossible for me to indicate that there was some error of law involved in Mr Tickle's refusal to debar the defence. It is only if I can detect an error of law that I have power to overturn any order of the Employment Tribunal.

[25]The fourth appeal is that of 3 March 2000 and it concerns Mr Tickle's refusal to grant an order for discovery and other relief against ACAS. Again, no application to the Tribunal for that relief is actually shown to me. The evidence used, if any, to support it, is not shown to me. I have not got an order from the Tribunal declining to give such relief, nor the reasons for declining to give such relief. I reiterate that the question of whether there should be some further order for Discovery and Inspection is already lined up to be argued at the hearing on 13 March.

[26]The fifth and six appeals, those of the 4 and 5 March 200, are against Mr Tickle's refusal to order Disclosure against two firms of Solicitors. I am not entirely sure of the names, I could not read them. It looks like Messrs Thring and Long and Messrs Burningham and Brown and my reasons here are mutatis mutandis , exactly the same as they were in the case of the first Solicitor's, Mr Millbourn's, case. Further Discovery can be dealt with, as it is planned to be, on 13 March.

[27]That leaves the appeal of 8 March against the Tribunal's decision to refuse interim relief. Now here I do have the Tribunal's Order and the Tribunal's Extended Reasons. But this is not proper to be listed as an interlocutory appeal. There is no reason why the appeal on this subject should not take its ordinary course, first being listed as a preliminary hearing and coming up before a full panel of three here at the EAT. Particularly is that so, given that very many of Mr Crook's reasons for urging his appeal are tied up with the refusal to him of documents, a matter that may look very different after 13 March.

[28]At several points in his address to me Mr Crook has said that he needs documents to prove his case and I have no doubt, ultimately, that that may well be the position but "proving his case" is the language of the main full substantive hearing. We are a long way I fear, perhaps a very long way, from that; we are still at the procedural stages and the fact that he will need more documents to prove his case is very much a matter which he can urge before the Employment Tribunal at the hearing of 13 March, at which, as I have indicated more than once, that is one of the particular subjects coming up for discussion.

[29]So the position is that appeals (1) to (6) inclusive are dismissed and appeal number (7), which is the one about the refusal to grant interim relief, is adjourned in order to come on, in the ordinary way, at a preliminary hearing before a panel of three. That, I think, is all I can do at this stage.