MR M O'CONNELL v LEO ABSE & COHEN [2001] UKEAT 332_01_2404

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 332_01_2404

Case No Appeal No. EAT/332/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR M O'CONNELLAPPELLANT

LEO ABSE & COHENRESPONDENT

Before

Mr Justice Lindsay

Date 24 April 2001

[1]APPEARANCES For the Appellant THE APPELLANT In Person For the Respondent MR D McCARTHY (Of Counsel) MR JUSTICE LINDSAY (PRESIDENT) We have before us an Interlocutory Appeal by Mr Michael O'Connell in the matter O'Connell v Messrs Leo Abse & Cohen , a firm of solicitors; today Mr O'Connell, who has some legal training, is before us in person and Mr McCarthy appears for Leo Abse & Cohen, the Respondent firm of solicitors. Mr O'Connell has been refused disclosure of identified documents by the Employment Tribunal and he appeals to us. He says he needs the documents.

[2]There had been a hearing appointed for the substantive hearing of the case on 30 April. That was notified to the parties on 8 March but because of this Appeal and, no doubt, perhaps other considerations, it has been abandoned. The chronology of the matter is that on 16 June 2000 Mr O'Connell presented an IT1 for constructive dismissal. He said of his relationship with his employers, the firm of solicitors that:- "it was an implied term of the Applicant's employment that the Respondent would not act so as to damage their relationship of mutual trust and confidence between it and the Applicant as its employee." He continued:

"On 25 February 2000 the Applicant was requested to attend a meeting by the Senior Partner, John Sherratt, in the company of the Human Resources Manager, Lesley Richards. The Applicant was informed by Mr Sherratt that as a result of a review into the structuring of the firm a decision had been made that staffing was to be reduced in the firm by two people. The Applicant was informed a decision had been made to reduce staffing by one Solicitor and one Legal Executive who would be made redundant."

A little later in paragraph 12 Mr O'Connell says:

"The Applicant contends he was placed in a position where the Respondent firm was giving the Applicant no alternative but to resign or risk being dismissed by reason of redundancy. The Applicant contends this amounted to a breach of the implied term to maintain trust and confidence."

And he gives some sub paragraphs of explanation of that and then towards the end of his complaint he says:

"In due course the Applicant resigned under cover of a letter dated 19 March whereby he confirmed his intention to resign with immediate effect due to a breach in the mutual obligation of trust and confidence. In the circumstances, the Applicant considers he had been constructively and unfairly dismissed and that the Respondent firm Messrs Leo Abse & Cohen acted unreasonably in all the circumstances."

[3]There were no events suggestive of breach of contract or of unfairness against Mr O'Connell pleaded prior to 25 February 2000 in that first form (as it will transpire to be) of the IT1.

[4]On 7 July the Respondent firm of solicitors put in their IT3. They said, amongst other things:

"In these circumstances, the Respondents maintain that the Applicant made a conscious decision to terminate his employment by way of resignation and cannot justify a complaint of "constructive unfair dismissal."

[5]On the same day, 17 July, the solicitors wrote to the Employment Tribunal a letter accompanying their IT3 and they say:

"We would be grateful if our response could be placed before a Chairman of the Tribunal who may wish to consider whether: 1. This application is suitable for an Interlocutory Hearing as to whether the circumstances justify a complaint of constructive dismissal; and 2. Whether the venue of the hearing of this complaint should be Cardiff or elsewhere. We look forward to hearing from you."

[6]It does not appear in our papers exactly what happened in relation to that letter or the question of whether the complaint should be in Cardiff or not but on 24 November 2000 an Order was made by the Employment Tribunal as follows:

"The Tribunal orders the applicant (that is Mr O'Connell) to pay a deposit of an amount of £150 not later than 21 days from the date of receipt of this Order as a condition of being permitted to continue to take part in the proceedings relating to the matter referred to above."

And Reasons were given for that decision and that decision was sent to the parties on 29 November. That sum of £150 was paid and so Mr O'Connell was, of course, in a position therefore to proceed further.

[7]At 15 January 2000 Mr O'Connell asked for leave to amend the IT1 and he sent to the Employment Tribunal very lengthy particulars of alleged breach of contract and further allegations as to unfair dismissal and the reasons for it. In this amended form he raises allegations relating to events of 1992, 1993, 1994, 1995, 1998, 1999 and 2000, in other words, events going back far earlier than those canvassed in the original IT1, which, as I mentioned, only went back to 25 February 2000. On 18 January 2001 the Employment Tribunal allowed the amendment that Mr O'Connell had sought subject to objection. It was a very strange formula that the Tribunal used. They said, writing to Mr O'Connell with a copy to Leo Abse & Cohen:

"Your application to amend is allowed ….."

So that, so far, Mr O'Connell would have thought "Well, I have won" and they went on :

" subject to any objection from the respondents on the ground of relevance or statutory time limit."

[8]It is a strange letter because, amongst other things, it makes no time limit provision for the deadline by which Leo Abse & Cohen were to raise any objection on the grounds of relevance or as to the statutory time limit. But no immediate objection was generated by Leo Abse & Cohen and Mr O'Connell has indicated that he took the view that any provision of a Tribunal must surely have had implied into it some requirement that there should be a time limit and that, in the absence of anything expressed, surely, he would say, a reasonable time only was to be given for the raising of objections by Leo Abse & Cohen and that whatever time was reasonable it had certainly expired fairly early. He has thus had in mind since 18 January 2001 or so that his amended IT1 has been accepted as his explanation of the case which is to be raised. With that in mind it is not therefore surprising that on 4 February 2001 Mr O'Connell applied for disclosure of a good number of documents. They are not specified in any loose way. They are specified in quite an orderly way and certainly many of them relate and can be seen to relate to periods prior to 25 February 2000, which, as I mentioned, was the earliest date that seemed to be relevant in the original complaint of 16 June.

[9]At the end of his letter asking for disclosure Mr O'Connell said: "If the Tribunal require detailed reasons for the discovery sought I am happy (and then the grammar goes a little off and what he really means is) I am [ready] to prepare [the] same by return." and he adds:- "…much of the reasoning will follow from the amended details of complaint." meaning thereby that if one had in mind the amended IT1 the relevance of the documents would be readily seen.

[10]That generated a response from the Employment Tribunal on 8 February simply declining the request for discovery:

"Your application for discovery is refused on the ground that none of the documents requested appear to be necessary to your case."

The Tribunal did not respond by saying, in response to Mr O'Connell's last paragraph, that he really ought to set out detailed reasons for the discovery. They simply say that none of the documents requested appeared to be necessary to his case.

[11]On 20 February Mr O'Connell wrote again to the Employment Tribunal asking that, in effect, the decision of 8 February should be reviewed. On 5 March the Tribunal wrote again to Mr O'Connell saying:

"The chairman has re-read the list of documents requested and fails to see how any of them as described can have any relevance to the case as a whole, or can be of any assistance to your case. The application for discovery is refused."

[12]On 12 March the Employment Appeal Tribunal received Mr O'Connell's Notice of Appeal and on 2 April received the Respondent's answer. That, I would hope, is enough of the chronological background to the matter but it is important to bear in mind how disclosure should be dealt with in Employment Tribunals. It is not dealt with as it is in the High Court where there are rules for automatic disclosure. In the Employment Tribunals a different code applies and one has to have it in mind. There are a number of statutory and other provisions which we need first to get out of the way. The first is the Extension of Jurisdiction Order 1994 Article 7, because this is the provision which regulates whether contractual claims are or are not time barred. Article 7 of the Employment Tribunal Extension Jurisdiction Order 1994 says:

"An Employment Tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented (a) within the period of 3 months beginning with the effective date of termination of the contract giving rise to the claim"

And then there is further provision at (b) and (c) but normally speaking one has a 3 months maximum period between the effective date of termination and the date by which an IT1 needs to be lodged. That is one thing to have in mind.

[13]Another provision which deals not with contractual claims but with unfair dismissal claims is to be found in the Employment Rights Act 1996, Section 111, which, dealing with complaints to Employment Tribunals for unfair dismissals, says at Section 111 sub section 2, subject to sub section 3:

"An Employment Tribunal shall not consider a complaint under this section unless it is presented to the Tribunal before the end of the period of 3 months beginning with the effective date of termination or (b) within such further period as the Tribunal considers reasonable in the case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of 3 months "

So, again, one has a 3 months time bar point that can be raised in cases. That is enough background for any complaint as to any barring of the contractual or the unfair dismissal claims for lateness of time.

[14]Dealing with the Employment Tribunal rules so far as they relate to disclosure of documents, Rule 4 sub rule 1 says:

"(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 (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 acts required in pursuance of this rule is to be done."

[15]That does not tell you very much because it does not tell you what is the County Court practice in relation to disclosure of documents and so one has to go to other works to find what that is. It is first convenient to refer to the Civil Procedure Rules 1998 part 31 paragraph 5.1. That, under the heading of specific disclosure says:

"If a party believes the disclosure of documents given by a disclosing parties is inadequate he may make an application for an Order for specific disclosure."

[16]The note in the White Book that deals with the position says this, amongst other things:

"The new rules do not involve any reduction of the present jurisdiction of the Court to order discovery."

A little later:

"The Case Management Powers of the Court give the Court the responsibility and the means for ensuring that discovery is limited to what is really necessary in individual cases. Accordingly procedure for "the automatic discovery" of non specified documents without order is abolished."

That provision does not apply here because we do not have any automatic discovery in any case and under the heading at 31.0.6, headed "the primacy of the necessity principal", the notes says:

"The overriding principle is that disclosure should be restricted to what is necessary in the individual case. In the past the necessity principle as stated in former rules of the Supreme Court Order 24 rule 8 was on the whole not applied effectively. The intention is that it should be applied rigorously in the future."

[17]That is the procedure in the High Court. The old Green Book that dealt with County Court practice, quoting Order 24 of the Supreme Court rules which are adopted in the County Court says:

"On the hearing of an Application for an Order (and then it specified certain rules) the Court, if satisfied that discovery is not necessary or not necessary at that stage of the cause or matter, may dismiss the application … and shall in any case refuse to make such an Order if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter of the saving cost."

[18]That, I hope suffice for the formal background to this case. Against that background we must note firstly that what one might call "the pleadings" here are not yet settled down. Unconditional leave to amend has not been given but, equally, it has not been the case that Mr O'Connell's application for amendment has been refused because the letter made it clear that it had been allowed, albeit conditionally. There has yet been no ruling on what, if anything, is barred by time under the provisions which we have described or by irrelevance and accordingly it is impossible at this stage to say what will be the issues in the case because what are the issues in the case must be a question that is determined by reference to the "pleadings".

[19]At any rate it is as yet impossible to say what are the issues save for the rather limited ones that relate to events or before the 25 February 2000, which was the starting date for complaints in the original unamended IT1. Since one cannot say what the "pleadings" will ultimately disclose to be the issues, it is impossible yet to say what disclosure may be necessary. Necessity in this part of the law means not merely necessary as part of the Applicant's case nor necessity of any other kind save for necessity either for fairly disposing of the cause or matter or for saving cost. To that extent the Employment Tribunal's letter of 8 February which said: "that none of the documents requested appear to be necessary to your case." may well be a letter which is applying the wrong test in law because the right test is not necessity relative solely to the Applicant's case but, as we have just mentioned, for fairly disposing of the cause or matter or for saving costs.

[20]Equally, the Employment Tribunal's letter of 5 March which says that the documents do not appear to the Tribunal to be relevant to the case as a whole, or of assistance to the Applicant's case, may, again, be an error of law as not reflecting the correct test. However, it is unnecessary for us to dwell on what may be errors of law in that area because Mr O'Connell had never put in any evidence in explaining why disclosure of the particular documents of which he sought disclosure was necessary in any sense of the word necessary. The practice in the County Court which is adopted in the Employment Tribunals is that an obligation is upon he who seeks disclosure to set out in adequate detail why it is that the documents of which discovery is sought are indeed relevant to the issues raised in the case or otherwise necessary in the sense we have described. In other words, whether the Employment Tribunal applied the right test to what should be disclosed or not is something of a side issue because, given that Mr O'Connell never made out a proper case for disclosure, the Tribunal was in law entitled to refuse him disclosure.

[21]We therefore will not set aside the Employment Tribunal's refusal to give disclosure. However, it would be extremely unsatisfactory to leave the matter in that way, especially since in his letter of 4 February Mr O'Connell had said, as we quoted earlier, that if the tribunal required detailed reasons for the discovery sought that he was prepared to give such detailed reasons yet he was never asked to do so. That invitation was never taken up. Moreover, it would be very unsatisfactory to leave matters in that way given that the extremely strange letter of the Tribunal of 18 January (which allowed his application to amend subject to objection) specified no time limit for the raising of objections and that Mr O'Connell not unnaturally had in mind, after a while, that there were to be no objections and that therefore the amended IT1 was the ruling form of claim that he was to be allowed to pursue.

[22]So, it would be very unsatisfactory simply to refuse to overturn the decision below. Fortunately though, one failed Interlocutory application does not, of itself, preclude another fresh Interlocutory application because in Interlocutory cases it is recognised that circumstances can change and they would here change very significantly if the pleadings were to settle down so that one could see the issues and if Mr O'Connell, once the pleadings had emerged and settled down, had indicated (the obligation being on him) in evidence precisely why this document or that was said to be relevant to his case and necessary to be disclosed.

[23]So, we therefore think it right to set out a possible procedural course in the hope that it might assist the Tribunal and the parties. We have no need to vacate the date of 30 April because that has already been done and it transpires that the parties have already been told of that. But, firstly the Respondent firm of solicitors should be asked by the Employment Tribunal if they intend to object, either on time bar or relevance principles, to the amendments which Mr O'Connell sought and of which he has given particulars.

[24]If they do object (and it seems that they will) they should then set out in best detail to what passages of the amended IT1 they object and on what grounds the objections are raised. The Employment Tribunal should specify a time limit by which objections by Leo Abse & Cohen should be raised and they should also specify a time by which Mr O'Connell should respond to those objections in writing, if writing is the best way of dealing with the case. That is entirely a matter for the Tribunal to specify.

[25]Secondly, a Preliminary Hearing can then be arranged to deal first with those objections. It transpires from what Mr McCarthy has said that there will be objections. That same Preliminary Oral Hearing could also then move on to deal with a fresh application by Mr O'Connell for disclosure. That disclosure can then be judged in the light of whatever has by then been ruled upon as being acceptable or not acceptable out of the total contents of his amended IT1 and as to Leo Abse & Cohen's intended response thereto. In other words, disclosure will be ruled on at a point at which the pleadings will have settled down. The Employment Tribunal may need to give disclosures as to such a Preliminary Hearing. That will be entirely a matter for them.

[26]If Mr O'Connell persists with a request for disclosure (and it sounds rather as if he will because he regards these papers essential to his case as made in the amended IT1) he will need to swear an affidavit setting out exactly why disclosure is necessary, in his view, of each of the documents or classes of documents as to which he persists with an application for disclosure. Necessity, in this part of the case, is to be given the meaning that we have read out from the Green Book, namely for a fair disposal of the case or for the saving of costs.

[27]The Tribunal will need to specify a time limit for the filing of such evidence by Mr O'Connell on the issue of disclosure and for an answer to that evidence by the Respondents and for a reply, if so advised, by Mr O'Connell. Mr O'Connell cannot expect that the Tribunal will itself consider the documents by reading them or looking at them before ruling on whether or not they should be disclosed. It is relatively unusual for a Court to do that. It is by no means unknown but it is relatively unusual and the duty on an applicant for disclosure is to make out his case for the relevance of the documents in his affidavit explaining precisely why they are needed. So he must bear in mind, when he swears an affidavit on the subject, that he can expect the Tribunal not to look at the documents and therefore that the detail which he needs to go into in satisfying the Tribunal as to the relevance and necessity for the documents has to be detail such as to convince them even without the documents being read.

[28]We must not be thought to be indicating that disclosure is necessary in the sense which we have explained it. We cannot tell what the issues will be because, for the reason that we have given, the pleadings have not yet settled down. We do not advise Mr O'Connell to reapply for disclosure nor do we advise him against it. It is a matter entirely for him to choose. If he does reapply he has to be aware that he might be at risk as to costs. We do not say that he will be at any unusual risk to costs. That is entirely a matter for the Tribunal and neither he nor his opponents will be able to rely on this present judgment which we are now giving as any part of an argument that he has or has not acted reasonably or unreasonably.

[29]We leave those issues entirely to the Tribunal. We would hope that the parties and the Employment Tribunal will consider the suggestions that we have here made but, simply to return to the immediate business of the interlocutory notice of appeal, for the reasons we have given we dismiss the appeal but we would hope that a procedure such as that which we have just indicated or something like it should thereafter be followed.