ARRIVA NORTH WEST LTD v MR J J LESTER [2001] UKEAT 1278_01_2711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1278_01_2711Case No Appeal No. EAT/1278/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ARRIVA NORTH WEST LTDAPPELLANTMR J J LESTERRESPONDENT
Before
Mr Justice Maurice Kay Miss C Holroyd Mr D A C LambertDate 27 November 2001
[1]APPEARANCES For the Appellant Mr Kevin M Smith Representative IRPC Group Ltd Noon Sun Horsforth Lane Greenfield Oldham OL3 7HL MR JUSTICE MAURICE KAY This is an interlocutory appeal from an Order that was made in an Employment Tribunal in Liverpool on 1 October. The Appellant, Arriva North West Limited is appealing the terms of an Order for disclosure that was made that day, and also an Order for costs. We shall refer to the Appellant as "Arriva" and the Respondent as "Mr Lester".[2]Mr Lester's application to the Employment Tribunal is in the form of a claim for unfair dismissal and wrongful dismissal; he was dismissed on 1 August 2000. He had been an Engineering Manager employed by Arriva at their Green Lane depot in Liverpool. In his IT1 he explained the background to his case in this way:
"In March 1999 Arriva's vehicle maintenance system was replaced by a new system known as F.A.C.T. In April 1999 a problem arose in relation to the non-routine maintenance of a number of Marshall Dart vehicles. It was Mr Lester who noticed that some vehicle records were missing. He immediately, on his own initiative, notified all the relevant garages to recall all the buses for service and inspection. This immediately rectified any further delay in maintaining these vehicles. Mr Lester and his colleague Mr David Kerr (Accountant) were asked to investigate how the problem had arisen in the first place. Their investigation concluded that the problem had arise due to a system failure of manual input at the Administration office in St Helens before the vehicles arrived at the depot. The problem would never had been noticed save for Mr Lester's initiative and quick action after which the Applicant thought the matter was concluded."
[3]In their IT3, Arriva took a contrary view and asserted that Mr Lester had been grossly negligent in the performance of his duties. They said they had properly dismissed him on grounds of gross misconduct.[4]If one wants a further identification of Mr Lester's case as it was being advanced before 1 October, one turns to a letter from his solicitors to the Employment Tribunal dated 31 July 2001, seeking an Order for Disclosure under Rule 4(5)(b) of the Employment Tribunals Rules of Procedure 2001 and part 31 of the Civil Procedure Rules. In the letter they explained why they believed that there were other relevant and significant documents in the possession of Arriva. They said:
"This belief is held because the substance of the matter involves failings in Arriva's procedures for vehicle maintenance and it is Mr Lester's case that he was made a scapegoat for inadequate procedures that were beyond his control and we find it inconceivable that Arriva will not have other relevant documents, inter alia, in relation to the internal investigation of the matter and revised procedures as a result of that investigation"
It is plain to see from the documents to which we have referred, how the two sides put their respective cases as to responsibility of what had gone wrong in the Green Lane depot. It is not for us to indicate or hold any views one way or the other about the substantive rights and wrongs of this dispute.[5]So far as disclosure is concerned, Mr Lester's solicitors had set out what we may call a shopping list for disclosure in a letter dated 28 June 2001; it contained twelve headings. That was responded to on behalf of Arriva by their representative on 27 July 2001. It was that response which led to the application to the Employment Tribunal dated 31 July 2001.[6]On 9 August the Employment Tribunal simply directed that within fourteen days, Arriva should provide a list of all documents relevant to the material issues in the case. On 10 September it was clarified that 'relevant' meant 'relevant' irrespective of whose case a particular document may or may not support. It is, perhaps, unnecessary to go into much more detail about the state of play at that time.[7]The point came at which the Employment Tribunal struck out Arriva's Notice of Appearance for non-compliance with the disclosure Order, but that was the subject of a successful appeal by Arriva to the Employment Appeal Tribunal, a judgment having been given on 28 September.[8]1 October 2001 was the date upon which the case was due to be heard. The parties assembled at the Tribunal in Liverpool. It was listed for two days. In the event, it was adjourned to a date in February. It is clear to us that the reason for that is that Arriva had still not disclosed all that which ought to have been disclosed. The events of that day were that the Tribunal went into the disclosure issue and made a disclosure Order. It was inevitable that full and proper disclosure not having taken place, the case could not proceed at that point of time. Indeed, many of the documents which were the subject of the disclosure Order were not physically present in the Tribunal on 1 October.[9]What has happened now is that some three weeks or more after 1 October, the present appeal was lodged by Arriva. Having looked at the correspondence, it is plain to us that it was launched without any prior attempt to clarify matters with Mr Lester's solicitors. The Disclosure Order of 1 October, related to:
"Items 3, 6, 7 the service reports for the period March 1999 to August 2000 for the Green Lane Depot only and items 10 and 11, and any other documents beside notes of interview, relevant to the Marshall Dart vehicles following the introduction of the F.A.C.T system"
Twenty eight days were allowed for that disclosure.[10]We have read and heard submissions from Mr Smith on behalf of Arriva, criticising that disclosure Order. In our judgment, those criticisms are entirely misplaced. The appeal to the Employment Appeal Tribunal was pursued by reference to a Skeleton Argument that asserted that the service reports mentioned in the Order might extend to eighteen thousand pages of documents.[11]It is quite plain to us that that is not what either the Employment Tribunal or Mr Lester's representatives had in mind. The solicitors have made it clear in a recent document that it was, and was understood to be, an Order for disclosure of weekly servicing reports for Green Lane Depot which would run to approximately two pages per week, and therefore approximately a hundred and fifty six pages over a period of eighteen months. They firm up their assertion that that was the sort of thing that everybody knew was being spoken about, by reference to a specimen report which had in fact been disclosed by Arriva, albeit in respect of a different depot. What the solicitors are cogently saying is that everybody should have realised that that is the sort of disclosure that was being sought and that is what the Order meant.[12]We have no doubt that the Order for disclosure that was made in the Employment Appeal Tribunal was a proper one. We do not consider that it was such as ought to have given rise to any misunderstanding, but if misunderstanding there was, then the obvious ways in which to remove that misunderstanding were by approaching Mr Lester's solicitors and/or the Employment Tribunal in Liverpool. Neither of these courses commended themselves to Arriva, instead they launched the present appeal.[13]It seems to us that a proper Order for disclosure having been made, and it now being common ground that service reports referred to are the weekly service reports of the kind we have related, there is no reason why Arriva should not disclose, that is to say list, the documents falling in the categories identified by the Employment Tribunal, in accordance with the usual procedure for disclosure. They will have to provide facilities for inspection. We know not and do not seek to anticipate whether the documents, when disclosed and inspected, will assist one party or the other. That is something that one can simply not tell at this stage, but that is the course of events which must now ensue.[14]The second ground of appeal relates to the Order for costs by the Employment Tribunal.. The power to order costs is, of course, constrained by Rule 14(1). In paragraphs 8 -11 inclusive of the Decision of the Employment Tribunal, there is set out the law, the rival contentions of the parties and the Decision of the Employment Tribunal on the subject of costs.[15]It would only be open to us to disturb that Order if we were of the view that it was plainly wrong and such that no reasonable Employment Tribunal would have made that Order. We do not take that view, accordingly, the appeal in relation to costs must fail. The two grounds of appeal, having therefore failed, the appeal is hereby dismissed.