K v SIR JOHN STEVENS COMMISSIONER METROPOLITAN POLICE SERVICE [2001] UKEAT 0960_01_0712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0960_01_0712Case No Appeal No. EAT/0960/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
KAPPELLANTSIR JOHN STEVENS COMMISSIONER METROPOLITAN POLICE SERVICERESPONDENT
Before
Mr Justice LindsayDate 7 December 2001
[1]APPEARANCES For the Appellant K (The Appellant in Person) THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) K - who I refer to as 'K' because there has been an order as to publicity here, or its absence – has had male-to-female gender reassignment surgery, although the exact description of it is said by K to be inaccurately described by the expression 'gender reassignment surgery', I mention this only to give an indication of the sort of area that we are in. She applied to join the police but was not accepted. What she seeks today is a search order of the 'Anton Piller' variety to be made against the Respondent to her Employment Tribunal proceedings, namely Sir John Stevens, Commissioner of the Metropolitan Police Service. K is in person before me today.[2]On 6 June 2001 K launched an IT1 against Sir John Stevens for sex discrimination and victimisation and possibly also racial discrimination. She sought a Restricted Reporting Order. On 9 August 2001 Mrs J R Hill, Chairman of the Employment Tribunal at London Central, declined to make a Restricted Reporting Order on the ground that she believed she had no jurisdiction. Attention was drawn to a case - Chief Constable of West Yorkshire Police v 'A' [2000] IRLR 465 - which also concerned a transsexual. The reasoning in that case, be it right or wrong, suggested that whereas the Employment Tribunal had no jurisdiction to make a Restricted Reporting Order on the sort of facts that were there in play, it was at least arguable (indeed the Employment Appeal Tribunal suggested) that the EAT had such jurisdiction. Accordingly K went to the EAT. The matter came up as a matter of urgency on 10 August 2001, in the long vacation. It came before His Honour Judge Wilkie QC who made a Restricted Reporting Order adopting the view expressed in the West Yorkshire Police case that, whereas the Employment Tribunal had not had jurisdiction, the Employment Appeal Tribunal did have it.[3]In the course of that hearing before Judge Wilkie the Employment Appeal Tribunal also dealt with an application which K then made for further and better discovery. Judge Wilkie ordered:
"THE TRIBUNAL DIRECTS that the Metropolitan Police Commissioner do within 14 days of the seal date of this Order file and serve full particulars of the information provided by the Greater Manchester Police in respect of the Applicant which is referred to in paragraph 9(a) of their Notice of Appearance in the phrase 'inter alia' and to any other information provided by the Cheshire Constabulary and the Lancashire Constabulary in respect of the Applicant. THE TRIBUNAL FURTHER DIRECTS that the Metropolitan Police Commissioner do give discovery and inspection by the giving of copies to the Applicant of all documents which were provided by the Greater Manchester Police and the Cheshire Constabulary and the Lancashire Constabulary in providing that information."
I should say that the police did not oppose the making of the Restricted Reporting Order by the EAT by His Honour Judge Wilkie QC. It was then, and has remained, K's case that there has been very much less than full compliance with those discovery provisions in His Honour Judge Wilkie QC's order.[4]On 10 October 2001 a large crop of applications which K had made came before me, Inter Partes. No order was made there and then as to whether the discovery so far made had been inadequate or not but some directions were given on the subject. I should say that on that date I was not sitting alone but with Mrs Marsland and Mr Thomas. I directed that:
"THE TRIBUNAL DIRECTS that the Appellant do serve on the Respondent and the Employment Appeal Tribunal within 14 days a sworn affidavit/statement of truth that includes but is limited to all allegations K wishes to rely upon in support of her application for further discovery; 14 days thereafter the Respondent do answer by way of a sworn affidavit/statement of truth and 7 days thereafter the appellant do reply by way of sworn affidavit/statement of truth. THE TRIBUNAL ORDERS that the aforesaid application do be stood over generally with liberty to restore after the expiry of 35 days."
This afternoon K has told me that that timetable has been worked through, that she has put her affidavit or statement of truth in reply, but that that was only in the last 2 or 3 weeks and it sounds from what I have been told that there has not yet been an application for a hearing date. Certainly none has yet been given for the hearing. It is therefore a subject that can come back.[5]On 16 October 2001 K put in a Notice of Appeal appealing against Mrs Hill's order that, as I mentioned, turned down the Restricted Reporting Order on the grounds of Jurisdiction. On 8 November 2001 K applied for a Search Order. There is a long letter headed 'Notice of Application' that begins as follows:
"This is a Notice of Application promulgated by the Appellant "
K" to the Employment Appeal Tribunal seeking an Anton Piller Order against the Respondent, Sir John Stevens, Commissioner, Metropolitan Police Service …" At paragraph 5.1 the nature of the application is explained:
"The Appellant hereby applies for an Order of the EAT whereby utilising the element of surprise the Appellant (and her Agents) may be permitted under the terms of the proposed Order to gain entry to the Respondent's premises – namely a) Sir John Stevens's/The Executive's Office at New Scotland Yard, (b) the Directorate of Legal Services (separate building situate around the corner from New Scotland Yard, and c) the Recruitment and Selection Centre at 26 Aybrook St, London W1U 4AN whereby the Appellant seeks authority to conduct a determined search of the Respondent's files, in search of information that is alleged to have been retained by the Respondent in contravention of the originating Order for Discovery cast against the Respondent by His Honour Judge Wilkie on 10/8/01 (Sealed Order of the EAT dated 15/8/01)."
Today was as early as the Employment Appeal Tribunal could arrange for a hearing of that application.[6]The first question I have to ask is whether I have jurisdiction to make such an order. Section 21 of The Employment Tribunals Act 1996 begins:
"21 Jurisdiction of Appeal Tribunal (1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an [employment tribunal] under or by virtue of –…."
Then listed at (a)-(j) is a whole series of separate statutory jurisdictions. It is hard to see how a question of law can arise from a decision of the Employment Tribunal as to an 'Anton Piller' order because there has not been one; nor how a question of law can arise in any proceedings before the Employment Tribunal when the question has not yet been before the Employment Tribunal under any of those jurisdictions. The powers of the Employment Appeal Tribunal are set out in Section 35 where is says: 35 Powers of Appeal Tribunal (1) For the purpose of disposing of an appeal, the Appeal Tribunal may – (a) exercise any of the powers of the body or officer from whom the appeal was brought, or (b) remit the case to that body or officer. (2) Any decision or award of the Appeal Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision or award of the body or officer from whom the appeal was brought."[7]It does not seem to me that this Appeal Tribunal has jurisdiction to make an 'Anton Piller' order. Looking to see whether it could do so on the ground that the Employment Tribunal could do so, then one has to look at the recent rules of the Employment Appeal Tribunal; Schedule1, Rule 4 begins by saying under the heading :
"Case Management (1) A Tribunal may at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with the proceedings as appears to the Tribunal to be appropriate. ….. (3) Directions under paragraph (1) may include any requirement relating to evidence (including the provision and exchange of witness statements), the provision of further particulars, and the provision of written answers to questions put to a party by the Tribunal."
Paragraph 5 says:
"(5) A Tribunal may, on the application of a party or of its own motion, - (a) require the attendance of any person in Great Britain, including a party, either to give evidence or to produce documents or both and may appoint the time and place at which the person is to attend and, if so required, to produce any document; or (b) require one party to grant to another such disclosure or inspection (including the taking of copies) of documents as might be granted by a court under rule 31 of the Civil Procedure Rules 1998(a). and paragraph 7 says: "
Where a requirement is being imposed under paragraph (1) or (5) – (a) on a party in his absence; [and of course that would be the case in an Anton Piller application] or …. that party or person may apply to the tribunal by notice to the Secretary to vary or set aside the requirement. Such notice shall be given before the time at which or, as the case may be, the expiration of the time within which the requirement is to be complied with, and the Secretary shall give notice of the application to each party, or where applicable, each party other than the party making the application." So it is of the nature of the rules that an 'Anton Piller' is not contemplated because that sub rule (7) provides that the notice to set aside or vary the provision has to be given before the expiry of the time within which the requirement is to be complied with, so it follows from that that the 'Anton Piller' surprise type of search cannot be ordered.[8]Having looked at the position of the Employment Appeal Tribunal and the position of the Employment Tribunal one next looks to see whether there is some general overriding jurisdiction in relation to search orders, and the answer is that, yes, there is. It is to be found in Section 7 of the Civil Procedure Act 1997 Section 1 says:
"The court may make an order under this section for the purposes of securing in the case of any existing or proposed proceedings in the court – (a) the preservation of evidence which is or may be relevant, or (b) the preservation of property … [but we are not concerned with that] (2) A person who is or appears to the court likely to be a party to proceedings in the court may make an application for such an order. Such an order may direct any person to permit any person described in the order, or secure that any person so described is permitted – (a) to enter premises in England and Wales, and (b) while on the premises to take in accordance with the terms of the order any of the following steps. ….. (4) Those steps are – (a) to carry out a search for or inspection of anything described in the order and (b) to make or obtain a copy, photograph, sample or other record of anything so described. …. (8) In this section Court means the High Court… [there are then other definitions we do not need]."
So it is only the High Court that can make that sort of order. This is not the High Court. It is a Court but it is not the High Court and I can only conclude that sitting here I have no jurisdiction to make an order of the 'Anton Piller' variety. That, in a way, is the end of the matter for immediate purposes but if, contrary to that, I did have a jurisdiction I would have to consider whether in point of discretion it should be exercised.[9]There are a number of factors that would need to be considered. First of all the appeal to the Employment Appeal Tribunal is of a limited and technical nature, chiefly going as to jurisdiction; it is not an appeal which is likely itself to generate a need for documents. Indeed (although I would not wish K to be held to this) it is, as I have understood it, K's own view that the documents for which she presses are truly needed for the Employment Tribunal proceedings rather than the Employment Appeal Tribunal proceeding. That is one factor.[10]The second is that the question whether there is any need for further discovery pursuant to His Honour Judge Wilkie QC's order is already ordered to be a subject of an Inter Partes Hearing and has been a subject for the provision of evidence. I cannot simply assume that there has been a failure to discover when on the 10 October the application for further discovery was refused and the matter was adjourned for further evidence and for further hearing.[11]Thirdly (and this is a factor that sometimes arises by way of a sort of logical dilemma when 'Anton Piller' Orders are not sought at the very outset of proceedings, before the Respondent knows of them) a position arises in which if - and I have to emphasise the word 'if' – if the Commissioner was indeed involved in a criminal conspiracy or was otherwise minded to destroy papers or to delete or change references within them, which seems to be part at least of K's case, he will have been that evil at least since 10 August when His Honour Judge Wilkie QC made the order. If he is, indeed, that evil, he surely would have set about destroying documents irrevocably from 10 August. In which case a search would now yield nothing. If, contrary to that, he is not that evil, then there is no real ground for an 'Anton Piller' Order. That is perhaps a rather crude way of expressing the dilemma that arises when an 'Anton Piller' is not sought at a time when the Respondent to it does know of the existence of proceedings. That is a factor that needs to be taken into account in the exercise of the discretion.[12]Another factor that has to be born in mind is that a well prepared application for an 'Anton Piller' Order requires the identification of a supervising solicitor who is expected to be able to describe himself as an experienced solicitor with personal experience of 'Anton Piller' practice and indicating his willingness to be the supervising solicitor and thereafter to report to Court – see Universal ThermoSensors Ltd v Hibben [1992] 1WLR 840 at 861. No such supervising solicitor has been identified. If I did have jurisdiction those are amongst the factors that I would have to take into account. I am bound to say that although we have not needed to address how the discretion would be exercised were it to be open to me, my present view would be that I would have had to decline to make the Order.[13]Therefor the application that K makes this afternoon is refused. The question of how far, if at all, the obligations cast upon the Respondent by the Order of His Honour Judge Wilkie QC on 10 August have been adequately performed can come back pursuant to the directions that were foreshadowed in the hearing earlier to which I referred.