WENDY COMFORT v DEPARTMENT OF CONSTITUTIONAL AFFAIRS [2005] UKEAT 0137_05_0407

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0137_05_0407Case No Appeal No. UKEAT/0137/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
WENDY COMFORTAPPELLANTDEPARTMENT OF CONSTITUTIONAL AFFAIRSRESPONDENT
Before
Mr Justice BurtonDate 4 July 2005
[1]APPEARANCES For the Appellant MS NAOMI CUNNINGHAM (of Counsel) Instructed by: Charles Russell LLP 8-10 New Fetter Lane London EC4A 1RS For the Respondent MS INGRID SIMLER (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS SUMMARY DISCLOSURE Full notes of evidence taken by a solicitor at an ET hearing, excluding any comments or annotations, are not protected by privilege: but are not ordinarily to be the subject of an order for disclosure or exchange. On the facts of this case, where(i) a rehearing of some of the Applicant's claims is to be heard after remission by the Court of Appeal,(ii) the Chairman's notes are inadequate,(iii) there has already been voluntary disclosure of the notes of evidence relating to 2 witnesses (which were patently full and not the subject of selectivity or selective judgment) and(iv) there may be a case of previous inconsistent statement to be put, an order for disclosure for the notes of evidence given by the two further witnesses to be recalled was made as potentially relevant, but they were not to be included into the hearing bundle, their use if any at the remitted hearing being subject to the case management decision of the fresh Tribunal. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by the Appellant, Wendy Comfort, against a Decision of the Regional Chairman, Mr Latham, sitting as a Chairman alone at the Employment Tribunal at London (Central) at what is described as a case management discussion, which took place on 14 October 2004, but in relation to which a Decision was not handed down until 17 December 2004, more than two months later.[2]It relates to an original Decision by the Employment Tribunal at Cardiff, differently constituted, which reached decisions between Miss Comfort, as Claimant (then described as "Applicant") and the Lord Chancellor's Department, as it was then called, now the Department for Constitutional Affairs, as Respondent, after a hearing which took place 4-6 February, 29 April and 10 May 2002, in a Judgment handed down to the parties on 21 May 2002. By that Decision, the Tribunal, inter alia, dismissed the Claimant's application for unlawful disability discrimination and also dismissed her application for unfair constructive dismissal and for breach of contract by reference to alleged redundancy. There was an appeal by the Claimant against that Decision which went to the Employment Appeal Tribunal which, by a Judgment given on 2 July 2003, after a hearing on 29 May 2003, dismissed the appeal.[3]The Claimant took her case to the Court of Appeal, and the Court of Appeal allowed the appeal in respect of unfair constructive dismissal and breach of contract, though not in respect of disability discrimination. The basis of the Court of Appeal's conclusion was that there was important evidence which had not been properly addressed by the Employment Tribunal. The findings of the Employment Tribunal, which were in paragraph 18 of its original Judgment, are set out at paragraph 9 of the Court of Appeal's Judgment. Suffice it to say for the purposes of this Judgment that the most significant of such findings were as follows: [I use the numbered sub-paragraphs, as did Peter Gibson LJ, of the original paragraph 18 of the Employment Tribunal's Judgment]. "(8) The Tribunal accepts, as stated by Mr McNally in evidence, that from June to the end of August 2000, Mr Risk and Mr Pickett were both 'bending over backwards' to try to give the applicant a post that she wanted and that by March or April 2001, a post would have become vacant. Quite apart from any other post, Mr Risk confirmed that right up to 28 April 2001, if the applicant had said that she would accept Cardiff, he would have given her that position rather than her staying off work. Relative to that, Miss Comfort agreed that if there were no other jobs available, she would have gone to Cardiff and that she could not dictate that she went to a post at a particular time. (9) The applicant's contention that she did not consider that there was a vacant post in Cardiff for her is not accepted because Mr Risk expressly stated that first, there was a vacancy there and secondly, in any case, in his position then, as the respondent's Administrator for the Wales and Chester circuit, he could have created posts up to Span 8, the former Principal Officer grade. (10) The respondent, through its senior management personnel, did its very utmost to resolve the applicant's position despite her only being prepared to consider the Newport Court Manager's post and the practical impossibility, for the respondent, to concede to that because it was not vacant".[4]Without having explained in this judgment the full factual context, the nature of the issue, which the Tribunal so clearly resolved against the Appellant, appears to be that the Appellant was alleging both unfairness and redundancy by reference to what had occurred, in relation to a situation in which there was, on any basis, a slimming down of staff by the Respondent. The Respondent was denying both unfairness and redundancy by reference to the steps that it had taken, so far as offering alternatives were concerned, and asserted that, in any event, if all else failed, there was a post available, or able to be created, as the Applicant well knew, at Cardiff.[5]That was the finding by the Tribunal. The Court of Appeal, having recited it, then set out what it concluded to be the failure of the Tribunal to address properly the evidence of Mr Risk, in the following paragraphs of Peter Gibson LJ's Judgment. "24 In the present case, Mr Gatt complains the ET failed to set out the evidential issues between the parties as to the content of two meetings". I interpose: there were two meetings, one in September as to which there was an issue as to the date – whether is was 18 September or 28 September - and one on 19 October 2000. "..or to follow it through to a reasoned conclusion. If the ET had formed the view that the issues [ that is the issues as to what occurred at those meetings] had become otiose, it neither stated nor explained that view." Then Peter Gibson LJ explains that more fully in the following paragraphs:
"28. If it be the case that on 19th October 2000 she was informed that at the end of the proposed training period there was no job available in any event and that Mr Risk said that he was not aware of any fourth HEO post in Cardiff, that would plainly be of great materiality to whether she was constructively dismissed. It is idle to argue, as Mr Coppel has done [that is Counsel then acting for the Respondent] that it was for Mr Pickett to decide who should go where and that everything had been resolved before the two meetings, when Mr Risk, the very top official of the respondent in the circuit, had chosen to become involved with the appellant's future by calling for and holding the two meetings with her in September and October. 29. The differences in the evidence of Mr Risk and the appellant over the two meetings was likely to have important consequences to the ET's Decision. The credibility of each witness was at stake. Indeed, Mr Coppel had cross-examined the appellant on her failure to keep notes of the meetings. The Chairman had, according to the appellant, complimented Mr Risk for his efficiency in making notes and committing them to the computer very promptly. The Chairman commented on that allegation. 'Any remark by me to Mr Risk about his efficiency was merely a reference to him having stated that he had committed his handwritten notes to the computer within ten minutes of his return to his office. Reference to the Applicant not having taken notes of the meeting was a matter of evidence because Miss Comfort was in considerable dispute with Mr Risk's evidence regarding those meetings'. 30. The Chairman showed himself to be well aware of that considerable factual dispute. How could he not be?"
At paragraph 31, Peter Gibson LJ says: "31. …It was plain that there was a sharp conflict of evidence as to what was said at those meetings in September and October 2000, and it is to be noted that no later event is relied on by the appellant in her originating application for her claim of constructive dismissal".[6]What, in fact, became clear during the course of the hearing before the Employment Tribunal, and what was not addressed by that Tribunal, was a considerable doubt as to the authenticity of Mr Risk's notes of those meetings upon which he so heavily relied, upon which the Tribunal placed such credence and by whose contemporariness the Tribunal were so understandably impressed. What became apparent was that there was at least the probability, if not the certainty, in the light of the evidence of a Miss Mulhern, who was Mr Risk's assistant or secretary, that the alleged contemporaneous notes were not in fact produced until very considerably later because, as is recorded in Peter Gibson LJ's Judgment, when she typed the notes in 2001, she had assumed that 3 January 2001 was the date the documents were created and she typed the notes on that day. If that issue was to be resolved, it could only have been resolved by the Tribunal, and, of course, it was open to the Tribunal no doubt to have found that it still believed Mr Risk's evidence notwithstanding the fact that the notes were not contemporaneous, as he had asserted in evidence, but that was a matter, the Court of Appeal concluded, which at the very least ought to have been addressed by the Tribunal in its Judgment.[7]It was against that background that the appeal was allowed and the case remitted to a differently constituted Employment Tribunal. For the purpose of that appeal, there have been notes of evidence ordered from the Chairman in their totality. Unfortunately, when they were produced, they were not very full, and as an entirely voluntary matter and to assist the parties and the Court, the Respondent, acting by the Treasury Solicitor, agreed to disclose and did disclose the Treasury Solicitor's representative's notes of the evidence, both in chief and cross-examination and re-examination, given at the Employment Tribunal by Mr Risk and Miss Mulhern; and those notes included, it appears because they were on the same page, some part of the notes of evidence of Mr Pickett. It would appear, and this is not necessarily what one would expect, but certainly what one would hope for, from an experienced solicitor, those notes were extremely full and helpful and, of course, although it has suited Ms Cunningham, acting today for the Claimant to laud their efficiency and fullness, for reasons to which I will refer, nevertheless I am sure that the notes deserve those compliments and they appear, on a quick reading by me also, to be more full than one could possibly have hoped for from a contemporaneous note taken of evidence in an Employment Tribunal.[8]They have been supplied, as I have indicated, voluntarily to the Claimant. The Claimant sought the balance of the solicitor's notes of evidence taken at the Tribunal hearing. There was to be, and in the event was, a case management hearing at London (South) to which I have referred earlier and, for the purpose of that case management hearing, at which a number of matters were to be discussed, notice was given by the Free Representation Unit, who were instructing Ms Cunningham, on 1 July as follows:
"Treasury Solicitor's notes of the previous hearing – I understand that the Respondent intends to call the same witnesses as before. In those circumstances, I suggest that the evidence previously given by the same witnesses is highly relevant. Treasury Solicitor's notes of the previous hearing fall slightly short of being a full verbatim transcript, but they are a very full and accurate record of proceedings"
. The transcript of the notes that had been supplied, if it had ever included the kind of thing one might well expect in terms of such a note, namely underlinings or highlightings or comments or queries, no longer contained those annotations or underlinings, as is absolutely proper, when they were supplied i.e. any matter which might have incorporated a view by the solicitor was no longer present, if it ever had been.[9]That directions hearing which was originally to be heard, as I understand it, in July and then at an earlier date in October, was only eventually heard on 14 October as referred to earlier. There was nothing particularly difficult or contentious in the decisions which the Chairman had to take at the hearing save, no doubt, in respect of this one point. At the stage in October when the hearing took place, the fresh witness statements which were to be served for the purposes of the remitted hearing had not yet been served, and so there was no opportunity for any kind of comparison to be carried out in front of Mr Latham of the contents of the old witness statements and the new. Equally, as I have indicated from the letter of 1 July, it appears that it was, at that stage, expected, at any rate by the Claimant, that the cast of witnesses would be identical second time round to what it had been first time round; and it now appears, as I shall describe that, in fact, the cast will be slightly different both by way of one omission and one or two additions.[10]It does not appear as though the argument before Mr Latham ranged, as it has ranged before me, by reference to the facts of the case or the identity of the witnesses, but more by way of matters of principle. The position taken by the Respondent was a perfectly understandable one, first that the notes of evidence taken by the solicitor were privileged, and secondly that, in any event, they were not relevant and certainly not appropriate to disclose.[11]The decision of Mr Latham, although it took two months to produce, when delivered was very short and I read it in total:
"16. Having perused the file and ascertained what might be available to the Tribunal if they thought it so relevant and having considered the rights of all parties, including the witness, Mr Risk, the authorities cited before the Tribunal and the relevant skeleton arguments, the Tribunal Orders that the Treasury Solicitor's Notes of Evidence taken at the original hearing (in transcript form) should be so provided to the Claimant's representative in advance of the hearing, with four copies being made available for use by the Tribunal at the hearing"
. If the Order had stopped there, it would have appeared that the Claimant had succeeded in her application in its totality, but Mr Latham then continued as follows: "However, it is not considered by the Tribunal that it is practicable for the whole of the notes of the Treasury Solicitor's evidence to be so Ordered. Only the relevant part of the notes needs to be so transcribed. In that regard, it is the relevant part of the Treasury Solicitor's notes as taken at that hearing (and insofar as they do not contain any privileged comments or observations) in respect of the evidence given by Mr Risk, any cross-examination or re-examination thereof and any evidence given by Mrs D Mulhern being again, the evidence, cross-examination and re-examination. In both cases, it should also encompass any questions asked by the Tribunal of such witnesses. These transcribed notes should be sent to the Claimant's representatives by the close of business on 5 January 2005".[12]The following can be said about that conclusion:(1) It appears to ignore that all the documents whose disclosure was now being ordered had, in fact, already been voluntarily provided many months before. Indeed, it was on the back of the accuracy and apparent reliability of the notes of evidence by the Treasury Solicitor which have already been provided, that Ms Cunningham was now asking for the balance. It may be that what the Chairman had in mind to say was there should not be disclosure of any notes in addition to those that had already been provided, but that is not what, on the face of it, the Judgment states. But it may be that the delay had caused the Chairman to forget that that had been the case.(2) In any event, in so far as he was ordering production of certain parts of the notes, albeit those which had already been disclosed, he was implicitly rejecting the argument of privilege put forward by Ms Warrender, then appearing as Counsel on behalf of the Respondent. Indeed, that is made even clearer by the reference by the Chairman to the omission of any privileged comments or observations which had already been removed, if there ever had been any, as I have earlier described, from the notes which had previously been supplied. There would thus appear to be a dismissal without any reasons of the argument for the Respondent that the notes were not discoverable because privileged.(3) The refusal, if that is what it was, of the balance of the notes of evidence was delivered without any reasons at all, other than the reference to it not being practicable for them to be disclosed. Plainly, if it was practicable to have disclosed the notes of evidence of Mr Risk and Mrs Mulhern, there was no reason given why it would not be practicable to disclose the rest, and no other reason is given for the refusal or for the distinction. What is perhaps to be deduced is a conclusion by Mr Latham that there was no relevant basis on which any other notes of evidence should be disclosed other than in respect of Mr Risk and Mrs Mulhern, but no explanation was given for that distinction.[13]In that regard, it does appear to me that much can be ascribed to the fact that there does not appear to have been the full argument put forward by Mr Gatt QC and Ms Warrender on that occasion of which I have had the benefit today from Ms Cunningham and Ms Simler. No point, however, is taken by Ms Simler, and properly so, by reference to Kumchyk v Derby City Council [1978] ICR 1116 . If the only basis on which the outcome of today depended was that there was no argument put before the Tribunal, but if there had been the argument put before me now, then the Tribunal would have exercised its discretion differently then a) I can and do, with the agreement of the parties, exercise that discretion and b) in any event, this being an application for disclosure, the matter could have returned to the Tribunal, supported by the arguments and/or evidence before me today - always subject to an appeal, back to the Employment Appeal Tribunal - with the same eventual result, it is to be hoped, as will occur today, but with the expenditure of a great deal more time, and delay. Although I point to the brevity of the reasoning by Mr Latham, much of it can be explained by what I have described, and I have not suffered from the same difficulty as that from which he suffered.[14]I turn then first to the question of privilege. Given my analysis of the decision of Mr Latham, namely that he rejected Ms Warrender's arguments on privilege, there ought, it seems to me, to have been a Respondent's Notice of Cross-Appeal to that decision, but no point has been taken by Ms Cunningham on this, and the argument has been fully addressed before me, effectively ab initio, and so I shall reach a conclusion about it. That conclusion will, in fact, be the same as the conclusion arrived at by Mr Latham.[15]There is the general rubric of legal professional privilege, but it is now fully recognised if, in fact, it was not so recognised 100 years ago, that there are two compartments of legal professional privilege: namely legal advice privilege, which depends upon communications of or for the purpose of obtaining legal advice (but such legal advice can be litigious or non-litigious advice) and can apply at any time whether litigation is in prospect or existence or not, and litigation privilege, which attaches only where litigation is in prospect or in existence but is wider than the communications of or for the purpose of obtaining advice, and will extend, for example, to communications with witnesses and the collection of evidence.[16]Ms Simler has helpfully drawn my attention to the recent decision of the House of Lords in Three Rivers District Council & Others v The Governor and Company of the Bank of England [2004] UKHL 48 , apparently as yet unreported, in which legal professional privilege is addressed by their Lordships, and from the point of view of both compartments of it. Litigation privilege, as opposed to legal advice privilege, is specifically addressed by Lord Carswell in his speech in paragraph 85, by reference to what he calls the classic statement of Sir George Jessel MR in Anderson v Bank of British Columbia [1876] 2 Ch D 644 at 649:
"The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule."
[17]In this case, the notes of evidence that were taken by the solicitor are not relied upon as protected by reference to legal advice privilege, but by reference to litigation privilege; and although the words of Sir George Jessel, there cited by Lord Carswell, are purportedly justifying the doctrine of litigation privilege, it is all expressed in the context of the giving and receiving of advice. As I have indicated earlier, these notes attempt to be a verbatim record simply of what was said, and any comments or queries will have been removed. However Ms Simler submits that, although they may not have qualified for legal advice privilege but for the existence of litigation, they plainly qualify for litigation privilege, as they are the product of the work and labour of an experienced solicitor, and are, in fact, what she has called a litigation tool.[18]Lord Carswell summarises the main authorities which set out the concept of litigation privilege in the nineteenth century. I do not propose to repeat the learned passages to which he takes the reader. He returns again to quote Anderson in paragraph 97, and Anderson is the first of the three main cases setting out in detail the nature of litigation privilege, in the nineteenth century. The second of the three main cases is Southwark and Vauxhall Water Company v Quick [1878] 3 QBD 315 to which Lord Carswell refers in paragraph 98. The words of Brett LJ in that case concentrate on his reference to words which had originally been used by James LJ in Anderson , namely "documents which came into existence merely as the 'materials for the brief'" and he enlarges that description. The third case described by Lord Carswell in paragraph 99 of his speech is Wheeler v Le Marchant [1881] 17 Ch D 675 , which related to reports obtained by solicitors from proposed experts.[19]Lord Carswell's summary of what he calls the trilogy of nineteenth century cases is in paragraph 102 of his speech as follows: "The conclusion to be drawn from the trilogy of 19 th century cases to which I have referred and the qualifications expressed in the modern case-law is that communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: a) litigation must be in progress or in contemplation; b) the communications must have been made for the sole or dominant purpose of conducting that litigation; c) the litigation must be adversarial, not investigative or inquisitorial".[20]Ms Simler also drew my attention to two paragraphs in the speech of Lord Scott, namely paragraphs 27-28. In paragraph 27 he stated that legal advice privilege has an undoubted relationship with litigation privilege, but he then comes to what he describes as being the policy which appears to him to lie behind both of the two compartments of legal professional privilege. "28. So I must now come to policy. Why is it that the law has afforded this special privilege to communications between lawyers and their clients that it has denied to all other confidential communications?" He then refers to such other confidential communications and he continues: "…..In relation to all these other confidential communications the law requires the public interest in the preservation of confidences and the private interest of the parties in maintaining the confidentiality of their communications to be balanced against the administration of justice reasons for requiring disclosure of the confidential material. There is a strong public interest that in criminal cases the innocent should be acquitted and the guilty convicted, that in civil cases the claimant should succeed if he is entitled to do so and should fail if he is not, but every trial should be a fair trial and that to provide the best chance of these desiderata being achieved all relevant material should be available to be taken into account. These are the administration of justice reasons to be placed in the balance. They will usually prevail".[21]Ms Simler summarises the position by saying that the notes of evidence are the work of solicitors, that experience and skill is required for that purpose and that, unlike the case of a shorthand writer, inevitably there must be some subjective element in note taking; that, in any event, the notes of evidence are required if and as necessary for the taking and giving of advice, because decisions will be taken by reference to those notes as a case proceeds, as to whether to call a witness or as to whether to abandon a case in whole or in part or to attempt a settlement. She further holds out the potential problem if notes of evidence of this kind are not privileged, that there will be an encouragement for solicitors or Counsel taking notes to be more selective in their note taking, so that they will then be able to allege that there has been a degree of evaluative selectivity which would amount, on any basis, to a privileged task, and, consequently, prevent the disclosure of the notes.[22]She took me to the old nineteenth century authorities in answer to Ms Cunningham's reliance on the last of those nineteenth century authorities to which I shall, in due course, come, namely Lambert v Home [1914] 3 KB 86 CA. The first of the nineteenth century authorities is Nordon v Defries [1882] 8 QBD 508 and the second is Lyell v Kennedy [1884] 27 Ch D 1. Lyell v Kennedy is, on any basis, not helpful for the purpose of comparison in this case. It was a case in which privilege plainly attached to the collection of evidence by a solicitor who was noting down, in the days before photocopying was available, relevant extracts of documents or records for the purpose putting together a case for Court.[23]Nordon, however, was on its face much more helpful to Ms Simler, and this is a case in which it was concluded that short-hand notes taken of an original hearing were originally, and consequently remained, for the purpose of a second hearing at which it was sought to adduce them, privileged. The learned Judge in the case, Mathew J, said (at 510): "We think that it does appear that the document came into existence with a view to and in contemplation of the present action and in order to assist the plaintiff, who is a solicitor, in its conduct and prosecution. If the plaintiff has a cause of action against the defendants it is manifest that it would be most important for the plaintiff to be enabled to submit to his counsel a full and precise statement of the evidence given by the defendants and their witnesses at the former trial".[24]That stands on one side as being supportive of the argument which Ms Simler would wish to put forward. However, ranged against her is a substantial and, in the end, overruling line of authority. In the following year after the second of her cases, Lyell , was Rawstone v Preston Corporation [1885] 30 Ch D 117, in which it was plain that, although the concept of privilege was well understood by Kay J, he concluded (at 118) that "The evidence was given [ in relation to a transcript which was sought to be disclosed] and the speeches were made in the presence of the corporation and their advisers who, if they had happened to have a shorthand writer in the room, could have had shorthand notes taken for themselves, which they would have had a perfect right to use, and although they had not notes taken, it is not a valid objection to the production by the plaintiff of his transcript of the notes which were taken for him. When the facts are stated, it must be seen at once that the transcript does not come within any of the cases of privilege, the principles of which are recognised."[25]In 1888 was the case of In Re Worswick 38 Ch D 370 and there, although, as Ms Simler points out, it would appear strictly obiter, North J concluded (at 373):
"A mere verbatim report of the evidence, whether by the solicitor's clerk, the solicitor, or counsel, would not in my opinion be privileged" but with regard to the ratio, what North J also said was: "
What was taken down by the shorthand writers was taken in open Court, and there can be nothing privileged or confidential in what passes in open Court".[26]Then there is Ainsworth v Wilding [1900] 2 Ch 315 . That was a case in which it appears that disclosure was being sought of documents which were themselves annexures to a bill of costs, and, while rejecting disclosure of a number of items on the grounds of privilege, Stirling J ordered unsealing of one particular entry, which he described (at 325) as follows: "They may, for example, contain a simple note by the solicitor or his clerk of the proceedings at chambers on the occasions as to which discovery is sought…there is a portion of it which can be entirely severed from the rest, and consists of a simple statement of what took place at chambers".[27]On that basis the overwhelming weight of authority places Nordon on its own, albeit that there might have been argument raised in relation to whether all that was said in the cases which support Ms Cunningham was ratio. However, the matter was put beyond doubt in 1913 by Lambert , to which I have referred, because the Court of Appeal in Lambert per Cozens-Hardy MR and Buckley LJ, with Chanell J bravely dissenting, overruled the decision in Nordon . That was a case where there was a transcript taken by a shorthand writer. Cozens-Hardy MR said (at 90) as follows: "Now the proceedings in the county court were public. Any one present could listen and take a note of what the witnesses said. The transcript did not involve any such 'professional knowledge, research and skill' as Bowen LJ referred to in Lyell v Kennedy . There is no original composition in the document. It is a mere transcript of that which was publici juris. A defendant who has obtained at his own cost a copy of a document, not in his possession, which is not itself privileged, cannot decline to produce the copy, although he obtained it in anticipation of future litigation" and he refers, among other cases, to Rawstone, Worswick and Ainsworth with approval and, as I have indicated, expressly overrules Nordon , which he describes as having been questioned by textbook writers in any event.[28]Ms Simler seeks to avoid the consequences of the Lambert v Home decision, 90 years ago as it was. First, she seeks to distinguish what occurred there, which were notes taken by short-hand writers, somewhat belittlingly described as "not having required any professional knowledge, research or skill to prepare" whereas here the notes were taken by solicitors. It is clear, however, that if Ainsworth is correct, and Ainsworth was approved by the Court of Appeal in Lambert v Home in terms, there is no such relevant distinction, because in Ainsworth it was a solicitor who took the relevant note.[29]Secondly, she points out that there is no reference in Lambert to the trilogy of litigation privilege cases, described by Lord Carswell, by the Court of Appeal. That, it seems to me is a very limited basis upon which to argue that in some way the Court of Appeal was per incuriam. It is quite plain to me that, although the majority of the Court of Appeal in Lambert may not have referred to any direct authority on the nature and existence of litigation privilege, they full well understood its nature, which was fully canvassed in the earlier cases which they did approve.[30]Thirdly, and lastly, she submits that in these day of the emphasis on human rights, the concept of privilege has been re-emphasised as an important one, not least in Three Rivers itself, and that there should be no in-road into the concept of legal and professional privilege; and that in so far as the Court of Appeal in 1914 made some in-road into it, it should be reconsidered in the light of a more modern approach. I do not agree. It appears to me that even if I had the authority to disregard the decision of the Court of Appeal simply because it is 90 years old, it would not be appropriate for me to do so on the grounds that she puts forward nor, indeed, necessary. As Ms Cunningham submits, the fact that legal and professional privilege may be an important human right makes it all the more important that it be carefully and comprehensively delineated, and that to uphold the importance of the principle is not necessarily the same as to extend its ambit. It is not a new concept, it does not depend upon human rights; indeed, it has been very much part of common law tradition, both in this country and, indeed, in the United States. Its ambit is well understood and defined and it is not required, in order to defend the principle, to extend it further than it needs to be extended. Indeed, the very passages from Lord Scott's speech, to which Ms Simler took me, underline that, even in relation to the concept of privilege in its clearest form, there is always a balancing act or public interest to be met.[31]In any event, Ms Cunningham, while relying on the fact that there is binding Court of Appeal authority in her favour which is not capable of being distinguished, relies upon two further factors, one relevant to this case in particular and one more general. The first is that she submits, again by reference to the very passages in Three Rivers to which I have referred, but to the other authorities also, that a fundamental part of the doctrine of privilege is confidentiality, and if the information is not confidential, as here, because it relates to evidence that was given in open Court - and, indeed, in this case in the presence of the Claimant, herself - then it does not become confidential simply by being recorded.[32]Secondly, she submits, by reference to the facts of this particular case, that we have the proof of the pudding in relation to what these notes are. Of course the solicitor who took them was a skilful recorder. They would not be as good as they are if he was not; but they do not involve any evaluation or subjectivity, they purport to be the record of what occurred. Inevitably one does not get every word down, inevitably sentences will be run together, questions will be blended into answers, but they do purport to be, and amount to, a full record, and not a subjective description of what occurred. In those circumstances, even if there might well, in some cases, be a doubt about disclosability, be a challenge on grounds of privilege successfully put forward on the basis that the notes in question are not simply narrative notes, that cannot be run in this case. In those circumstances, I agree with the Chairman that, with his implicit finding, these notes of evidence that are sought were not privileged. The circumstances in which they are sought are that the Claimant had her own Counsel for the first three days, but then he appears to have left in circumstances I know not of, leaving behind a solicitor. Again, there was no reason why that solicitor should not have taken notes, but it appears that he did not, and the underlying purpose behind the desire to obtain all the notes of evidence must inevitably be the desire of the Claimant and her advisers to put herself in the best position she can be, given the apparent absence of her own side's notes, although no explanation has been given as to what steps had been taken to obtain any from Counsel, of the original hearing. That, however, is not a proper or even conceivable basis upon which the documents sought can become discoverable. The fact that they are not privileged is only the starting point.[33]Ms Cunningham did raise an argument in her Skeleton Argument which she did not pursue orally that, effectively in any hearing, the notes of evidence taken by one side or the other or both should become disclosable or perhaps exchangeable. I am entirely clear that that would be a wholly unhelpful and, indeed, unsupportable course. If we are talking about a final hearing itself, which we are of course, because notes are only taken at the hearing, then disclosure would, in any event by that stage, have come to an end; and an application for disclosure in the middle, or towards the end, of the hearing of the other side's notes taken during the hearing would not fall within the ordinary concept of disclosure in any event. But quite apart from that, there are good reasons why such a course would be quite inappropriate. First, it does not seem to me that it would be relevant for each side to see the other's notes or, indeed, for one side who has not bothered, or been in a position, to take notes, to have the advantage of seeing those diligently, or possibly at greater expense, taken by the other side or the other side's advisers.[34]There may come a point – there sometimes does – in a hearing when there is a dispute about one particular question, namely what was said by a witness on the eighth day of the hearing which is now into its twelfth. In those circumstances, almost always the matter will be resolved by a reference to the Chairman's notes. There may of course be rare occasions when it is helpful to consider the notes of one or other of the litigants or their advisers, and at that stage, for the matter to become clear, it may well be appropriate and helpful for that particular passage which has now become in public dispute to be disclosed so that each side has a copy of the other's relevant note. But save in such an exceptional case, it does not appear to me to be a relevant matter to be allowed to have copies of the other side's notes.[35]Indeed, it appears to be wholly counterproductive. It would mean, for example, that before closing speeches at the end of a tribunal hearing, there would need to be trawling through by each side of the other's notes of evidence in order to see whether some precise way in which something was said is differently recorded in the other side's notes from those of one's own side, or, in the case of someone who has not taken their own notes, trawling through the other side's notes. It will lead to a very considerable extended time for the preparation and, indeed, the giving of closing submissions, and sometimes to trials within trials.[36]Further, it will lead to an increased complexity of appeals, because we have become in the last few years very discouraging even of the obtaining of Chairmen's notes; and if on top of Chairmen's Notes, we are now going to have automatic production of the party's own notes or rival copies, appeals will spiral out of all control. I am entirely clear then that there is not only no policy in favour of the exchange or disclosure of notes taken at hearings, but their exchange or disclosure should be very much the exception and only if there is a good ground of relevance to support it.[37]Secondly, one asks the same in relation to an appeal. There, we have, in order to discourage Chairmen's notes being obtained, developed the procedure under paragraph 7 of the Practice Direction, whereby parties are encouraged to see if they can agree matters, rather than call for the Chairman's Notes, by reference to their own notes. But this, of course, again is totally counterindicative of the production of both parties' notes as a matter of compulsion. It depends upon voluntary disclosure to each other, in order to avoid the obtaining of a Chairman's Notes, of relevant parts of notes of evidence, with a view to reaching an agreement, which will mean that the notes do not need to be put in on an appeal at all. That is again totally different from an Order for the compulsory disclosure of the totality of the notes.[38]The third area where this question may arise, is the situation in which it has in fact arisen, namely not with regard to the hearing itself in the course of it, and not in relation to an appeal against the hearing itself. but in relation to those rare cases where, as a result of an appeal, there is remission for a re-hearing of the same matter. So far as that is concerned, it is here submitted by Ms Cunningham, or is subject to her wider argument which has not found favour and, indeed, as I submitted, has hardly been pursued, that for the purpose of the remitted hearing there is relevance in the production of these notes of evidence over and above the Notes which have already been produced. The context, I have already referred to. 1) The very full and helpful notes of the evidence of Mr Risk and Ms Mulhern have been produced, together with a small part of the evidence of Mr Pickett, and therefore we have a taster, and can know with some confidence that the balance, if produced, will be of help. 2) The Chairman's Notes are, in this case, not as full as one would have wished. That, I am quite satisfied, is not enough of itself to lead to the disclosure of notes of evidence, and it may be that that was all that was relied upon before the Chairman when, below, he made the decision he did. But in her Skeleton Argument, as developed orally before me today, Ms Cunningham has relied upon a particular relevance for these notes of evidence, by reference to the concept of previous inconsistent statement.[39]I have already described how the Court of Appeal concentrated on the two meetings of September and October 2000, and the inadequate findings, as it found, of the Employment Tribunal in relation to them, and the apparent difficulty that Mr Risk was in in relation to his notes. Ms Cunningham refers to the Notice of Appearance, or Grounds of Resistance as it was then called, the Respondent's Response to the Originating Application of 30 July 2001. While setting out its substantive case that there was no unfairness and no breach, the Respondent said this:
"4. The Respondent continued to make efforts to find an appropriate post which was acceptable to the Applicant and for which she was qualified. The most suitable alternative post at the correct grade was at the Cardiff Civil Justice Centre. The Applicant however had expressed a wish to take up that post. On 28 September 2000, the Applicant met with Mr Risk in order to resolve the situation. Mr Risk informed the Applicant that she would require a period of re-training and work shadowing before she would be qualified to take up a court manager post. 5. A further meeting took place between the Applicant and Mr Risk on 19 October 2000. The Applicant was notified that the appropriate training and shadowing had been arranged. She was further told that a decision as to which permanent post she would take up with effect from 1 April 2001 would be made in March 2001. The Applicant was asked to contact Mr Risk with a date when she would be ready to commence training, but no such contact was ever made"
. Therefore this summary of the Respondent's case, although of course it was considerably expanded when it came to the service of witness statements and, in due course, oral evidence, placed heavy emphasis, Ms Cunningham submits, on the events of those two meetings.[40]In the witness statements now served for the remitted hearing, there is a much fuller account given by the witnesses to be called for the Respondent. There are, according to the list available to me, three witnesses to be served in respect of whom witness statements were not previously supplied and consequently who were not called. Then there is Mr Risk and then there is Mr Pickett and Mr McNally. In respect of all those, particularly I refer to Mr McNally and Mr Pickett, fresh witness statements have been served in an expanded form for the purposes of the hearing. They were all served in December 2004. No fresh witness statement has been served from Ms Thomas because, it is now understood, Ms Thomas is no longer with the Respondent and is not intended to give evidence.[41]Ms Cunningham submits that she suspects from the way in which the new witness statements are formulated, and from her knowledge of the embarrassment which the Respondents must have in relation to Mr Risk and the challenge to contemporariness of his notes - and, indeed, an investigation that has been carried out into the genuineness or otherwise of those notes - that an attempt will or may be made by the Respondent to, as it was put colloquially in the course of argument, "re-write history" by, at any rate, shading the way in which the case is put so as to place less reliance on the role of Mr Risk. She submits that it is only if she has the full notes of evidence produced by the Treasury Solicitor from the first hearing that she will be in a position to be able to pounce at the hearing on any statement which can be seen as being inconsistent with what was said before. She has the witness statements from the first hearing, but she has not the notes of what was actually said orally, other than the admittedly inadequate Notes of the Chairman.[42]I turn then to conclude whether her application can be supported in this regard. First, it was apparent to me from her submissions that none of that argument could support the production of the notes of evidence taken of the Claimant herself at the first hearing. Quite apart from the fact that she was called at a time when her own Counsel was present and would or should have been taking notes which may still be available, nothing that was said by the Claimant at the first hearing could be relevant to this argument of previous inconsistent statement. Indeed, if there were any inconsistencies by her, that would of course redound to the advantage of the Respondent, who might be in a position to cross-examine about previous inconsistent statements. If they do wish to, at that stage, rely upon their own notes, they will have to have supplied them, no doubt prior to asking any relevant line of questioning, under the guidance of case management by the Chairman, but I refuse any Order for production of those notes of evidence now.[43]The claim that is made that there or may be previous inconsistent statements is, of course, far too early at this stage to judge. I have been shown passages in the new statements which, Ms Cunningham submits, indicates a potential change of case but, on the other hand, Ms Simler has extremely persuasively argued that all that has occurred in the new statements is expansion, and that the issue of the availability of a post at Cardiff was made clear to the Claimant, not only by others than Mr Risk, but at dates prior to the conversations in September and October 2000; and, in any event, it would not be determinative of the issue as between the Respondent and the Appellant even if it were found, which it may not be, that the alleged lack of contemporariness of the notes of the two meetings necessarily reflects upon the conclusion by the Tribunal as to what occurred. It may damage Mr Risk's credibility, but it does not mean that the Tribunal will, in the end, fail to find, as the first Tribunal found, that what occurred at that meeting is indeed what he says occurred, rather than what the Claimant said occurred.[44]Questions of previous inconsistent statements must be a matter for the Chairman exercising powers of case management. It may well be that robust case management is going to be necessary here on a remission where it is clear that there is a great deal of ill-feeling between the two sides. That robust case management will have, of course, to be carried out sensitively, but it is not an inconsistency for an experienced Employment Tribunal to be simultaneously both robust and sensitive. But I am satisfied that the Claimant must be put in a position in which she can discover whether this is even the argument of previous inconsistent statement. I am not satisfied that there is that argument but equally, I cannot, at this stage, exercising the discretion that I would have exercised, as I am invited to do, as the chairman of an employment tribunal at the interlocutory stage, conclude that there is not the possibility of such an argument. It is quite clear that what must not happen is that the remitted hearing must not descend into nit-picking and pernickety dissecting of precise phraseology used either in previous witness statements or according to notes of evidence on previous occasions orally. The Chairman and members will be well able to judge whether there really is a change of case or simply an expansion or re-wording of essentially the same account of what occurred. But this is much better done prior to the hearing than in the middle of it. The notes of evidence, if disclosed now, would not go into the bundle of documents as relevant documents for the hearing – I understand it is already agreed that the notes of evidence which have previously been disclosed should go into an agreed bundle - but I am entirely satisfied that any further and possibly peripherally relevant notes of evidence that I now order should not go into the bundle. They should, however, be supplied to the Claimant, so that her advisers can take the opportunity, sensibly and restrainedly, to decide whether there is really some argument in relation to a particular witness that there is some previous inconsistent statement or some material change of account. It is only if Counsel or solicitors are so satisfied that the matter will be raised, and it is only if the Chairman is satisfied that he or she will be interested in getting into the exercise of nit-picking comparisons that it will be pursued.[45]So far as Mr Pickett and Mr McNally are concerned, they are to be called, and although I have been shown nothing which persuade me that there is anything in the fresh witness statement which is materially different from what was in the earlier statement, I can see the possibility that, together with the notes of evidence to be disclosed, there may just possibly be an opportunity for a cross-examination along those lines if so advised. In addition, there is another reason for disclosure of the notes of evidence of Mr McNally. It is common ground that at some stage in oral evidence, Mr McNally referred to a business plan which would be of some relevance in relation to possible alternative jobs for the Appellant. The Respondent, at the request of the Claimant, has made disclosure of a business plan, but it is clear that both sides believe that that is not the relevant business plan. It may be that on the sight of precisely what was said by Mr McNally in the witness box, as accurately recorded in the notes of his evidence, more assistance may be given to the Claimant to try and work out what business plan it was, in order to be able to pursue specific disclosure of some further document.[46]In those circumstances, I propose to order the disclosure of the notes of evidence in relation to both Mr Pickett and Mr McNally. However, I am not minded to order disclosure of the notes of evidence of Ms Thomas. As I indicated earlier, she is not, at any rate at present, to be called at the hearing. If there were to be some change of mind, then the matter would be different, and it would follow that she would fall into the same category as Messrs Pickett and McNally. But I am persuaded by Ms Simler that to go the step further, which Ms Cunningham herself accepts it would be, to allow pursuit with witnesses who are called of alleged previous inconsistent statements by witnesses who are not called, would be a step further even by way of disclosure, never mind by way of case management if it ever got to it, than is justified by the very slimline nature of the argument which the Claimant at the moment is able to mount. If I were satisfied that there was a really strong case that there was some kind of concerted effort to re-write history, then it might be that the evidence, of Ms Thomas would be more significant. but I am not persuaded of that case. It appears to me that, although it is right that the Appellant should be given the opportunity by way of specific disclosure in relation to the production of documents that may be relevant, namely these notes of evidence, to take advice as to whether to pursue this case of previous inconsistent statement in relation to witnesses who are to be called, that should not be done in relation to a witness who is not to be called.[47]I can only conclude by emphasising that this has been intended, as any interlocutory application in the Employment Tribunal would be, both to be facilitative and to avoid, if possible, arguments at the full hearing. I am not in any encouraging any pursuit of the case of previous inconsistent statement, even with the benefit of such notes of evidence that may be forthcoming when it finally comes to it and I am sure that, unless the Tribunal thinks that they will be assisted, they will do their very best to limit or exclude any such arguments, and to concentrate on the evidence that is, in fact, given before it, and reach its own conclusion as to what did, in fact, occur, giving due credence to the credibility of the witnesses that it hears. To that extent, this appeal is allowed and there will be production of the notes of evidence of Mr McNally and Mr Pickett.