DAVID NEELY v ABBEY NATIONAL PLC [2003] UKEAT 0045_03_2611
[1]APPEARANCES For the Appellant Miss L Murphy, Solicitor Of- The PRG Partnership Solicitors 12 Royal Crescent GLASGOW G3 7SL For the Respondents Mr R Bradley, Solicitor Of- DLA Solicitors Napier House 27 Thistle Street EDINBURGH EH2 1BS LORD JOHNSTON: This is an appeal at the instance of the applicant appellant against two interlocutory decisions of the Employment Tribunal sitting in Glasgow, regarding, firstly, a request for a document order and secondly a request for a questions order on behalf of the applicant both of which were denied by the Tribunal.[2]Dealing first with the questions order which can be summarily considered, it relates to questions submitted for consideration by the respondents with regard to a report prepared by the appellant's solicitor into the marketing practices of the respondents during the relevant period which forms the basis of the claim for constructive dismissal by the appellant, the details of which we need not go into.[3]We are not prepared to entertain this issue because we consider that it offends against the rule that a party cannot be compelled into making admission against their interests as a matter of fundamental right. A questions order can relate to facts known to be within the knowledge of the other party but cannot, in our view, be extended to cover what is a document prepared by the proponent of the questions order which may well be contentious, and, in any event, may contain conclusions not acceptable to the other side. Thus it is inappropriate to make them declare their position in that respect if that be the case. Accordingly, as a matter of principle, we consider the questions order in this case is misconceived and we will refuse the appeal in that respect.[4]The main issue concerns the recovery of documents the order for which is quoted by the Tribunal and is to be found on page 55 of the bundle. It is in very broad terms but, nevertheless, would be at least potentially relevant if it was not for the fact, as the Tribunal state, that the respondents have indicated that they have no further material to lodge beyond that which has been provided and that they will take their stand on that position. We therefore agree with the Tribunal that no further purpose would be served in granting an order standing that position.[5]In so stating, however, we would record that the respondents are accordingly bound by that undertaking and should not be permitted to depart from it to the extent of lodging any further material in support of their position. If such is attempted, the Tribunal should refuse to accept it and that is a direction from this Tribunal with regard to the hearing which is still to take place on the merits of the case.[6]With that rider, we accordingly refuse the appeal.