THE CHIEF CONSTABLE OF NORTHUMBRIA POLICE v MS J D ORD [2001] UKEAT 0478_01_3004
EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0478_01_3004Case No Appeal No. EAT/0478/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE CHIEF CONSTABLE OF NORTHUMBRIA POLICEAPPELLANTMS J D ORDRESPONDENT
Before
Her Honour Judge Wakefield Mrs J M Matthias Mr H SinghDate 30 April 2001
[1]APPEARANCES For the Appellant MR R P CAPE (Of Counsel) Instructed by Northumbria Police Legal Services Dept Force Headquarters Ponteland Newcastle upon Tyne NE20 OBL For the Respondent MR C BREEN (Of Counsel) Instructed by Messrs Russell Jones & Walker Solicitors 6th Floor Minerva House 29 East Parade Leeds LS1 5PS HER HONOUR JUDGE WAKEFIELD This is an Appeal on an interlocutory point by the Chief Constable of Northumbria Police, against the decision of an Employment Tribunal held at Newcastle upon Tyne on 24 April 2001 by which it was ordered that:
" the third origination application (case number 2500280/01) shall be listed for hearing at the same time as cases number 6400496/99 and 6402166/00 commencing 27 April 2001;"
[2]The grounds of the Appeal are that the consolidation of the three originating applications in this way would compel the Appellant in defending itself on the first two applications to disclose material, which would otherwise be the subject of legal professional privilege.[3]The issue arises factually in this way: by the originating application presented in 1999, which I shall call the first application, the present Respondent, (the Applicant below) complains of sex discrimination, race discrimination and victimisation. By the originating application presented in 2000, the second application, she complains of victimisation. In preparing for the hearing of these two applications, which were always to be heard together, the Appellant's solicitor pursued certain lines of enquiry in the evidence-gathering process. This included, amongst other things, the questioning of colleagues or former colleagues of the present Respondent.[4]By the originating application presented in 2001, the third application, the present Respondent alleges that she has been victimised and has had her human rights violated by reason of those questions being asked which she asserts related to aspects of her personal and social life which should not properly have been investigated.[5]On the application for consolidation the Employment Tribunal apparently undertook a balancing exercise in terms of likely prejudice to either party of consolidation or non- consolidation of the third application with the other two. They decided in favour of consolidation. Although no reasons were given for the Order made by the Employment Tribunal that there should be consolidation it is apparent from notes taken by Counsel for the Appellant that the view of the Tribunal was that there would be no potential breach of the Appellant's legal privilege if that course were followed.[6]We consider that in reaching that conclusion the Employment Tribunal erred in law. Although we are concerned that to sever the third application from the other two will make necessary a further hearing and thereby prolong the time before final determination of the issues between the parties, we are of the view that to place the Appellant in a position whereby it either discloses its sources of enquiry relating to applications 1 and 2 during the hearing of those applications or effectively is unable to defend application 3, is inconsistent with its right to legal professional privilege.[7]That right and its importance is highlighted in the two cases to which we have been referred today by Counsel for the Appellant that is Lee v South West Thames Regional Health Authority [1985] 2 ALL ER 385 and Regina v Derby Magistrates' Court, Ex Parte B [1996] 1 AC, 487. The Appeal is therefore allowed as regards paragraph 3 of the Employment Tribunal Order made on 24 April 2001.[8]Applications 1 and 2 are to be determined first, with application 3 following only when all appeals or opportunities for such appeals on those first two applications have been exhausted.