SINCLAIR ROCHE & TEMPERLEY (A FIRM) v SIÂN HEARD SIÂN FELLOWS [2005] UKEAT 0637_05_2111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0637_05_2111Case No Appeal No. UKEAT/0637/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SINCLAIR ROCHE & TEMPERLEY (A FIRM)APPELLANTSIÂN HEARD SIÂN FELLOWSRESPONDENT
Before
Mr Justice BurtonDate 21 November 2005
[1]APPEARANCES ` For the Appellant MR IAN GATT QC and MR JEREMY LEWIS (of Counsel) Instructed by: Messrs Stephenson Harwood Solicitors One St Paul's Churchyard London EC4M 8SH For the Respondents MS JENNIFER EADY (of Counsel) SUMMARY Practice & Procedure: Disclosure, Costs & Disposal of Appeal Appeal against interlocutory orders by ET Chairman debarring reliance on some disclosed documents and ordering costs against the Appellant: and restoration of earlier adjourned application for Review of the decision by the EAT, when allowing the original appeal, to remit the appeal to the same Tribunal. Appeal allowed in respect of debarring order and costs: order was flawed as being in substitution for an earlier order which should plainly not have been granted and as made without consideration of the correct legal approach to prejudice caused by late disclosure, in terms of effect on a fair trial and prejudice caused by debarring the evidence: costs order made in respect of the hearing could not be justified on grounds of unreasonable conduct by the Appellant, but was due to the need to revoke the earlier inappropriate order. On the restored application for Review, order reviewed so as to remit the appeal to a freshly-constituted Tribunal, on the grounds that the Sinclair Roche requirements for the exceptional step of remitting to the same Tribunal were not, in the light of subsequent events, now satisfied. THE HONOURABLE MR JUSTICE BURTON This has been the hearing of two matters before us today in this now long-standing dispute between Ms Heard and Ms Fellows, the Claimants, and Sinclair Roche & Temperley, the Respondents. The two matters are, first, an appeal against orders made by the Employment Tribunal chaired by Miss Cook (in this case, sitting alone, on 9 November 2005) and, secondly, the restoration of an application (which originally came before me, sitting alone, at the Employment Appeal Tribunal on 12 April 2005 when I adjourned it) to review the original Decision made by the Employment Appeal Tribunal, constituted as we are today, in a reserved judgment dated 22 July 2004, now reported in 2004 IRLR 763 , when, although allowing the appeal of the Respondents against a decision on liability in favour of the Claimants and remitting the claim of sex discrimination to the Employment Tribunal, we remitted it to the same Tribunal.[2]The application for review was under Rule 33 of the Employment Appeal Tribunal Rules, as amended. That requires the Employment Appeal Tribunal to consider an application for a review of its judgment if an application is made within 14 days. But, under Rule 37, as is accepted, there is power for an extension of time. When the matter came before me on 12 April 2005, I was sitting alone. Under the Employment Appeal Tribunal Practice Direction paragraph 20 (and also under Rule 33) there is power for a judge sitting alone to refuse an application to review, either on the basis that it is out of time or otherwise; but if he is minded to allow such an application, then he must at least consult the members with whom he was sitting, if it is an application to review a decision of a full panel of the EAT. There does not have to be a hearing at which the same constitution is present, but the judge must at least orally, or on paper, consult his fellow members. I had not done that prior to the judgment of 12 April 2005 and in any event, in the circumstances which I there described, I was adjourning the application to review, which occurred in the light of what I described in that judgment as the non-opposition to that course by the Claimants. There was, therefore, not an adjudication of the application to review in April, and that has now been restored, and it is common ground that all matters are therefore available to be considered, including those matters which were before the EAT on 12 April.[3]It is plain, by reference to authorities to which our attention has been drawn by Ms Jennifer Eady on behalf of the Claimants, that the power to review of the Employment Appeal Tribunal is not to be exercised in order to re-argue or re-hear a case. She refers to Blockleys Plc v Miller [1992] ICR 749 per Wood P; and in my judgment in Asda Stores Limited v Thompson No 2 [2004] IRLR 594, I similarly rejected the suggestion that the EAT had a similar power to the Court of Appeal to re-hear a matter. However, it is clear that there is power to review in the light of changed circumstances; and the changed circumstances relied upon here are that the assumptions and conclusions which we made as to the risks resulting from the order for remission have been falsified by events.[4]Our judgment, which set aside the decision of the original Employment Tribunal chaired by Ms Cook sitting with lay members, after a hearing on 31 March and 1-7, 8-10 and 14-17 and 22 April 2003, remitted various matters to the Tribunal, some of which have subsequently been abandoned by the Claimants. But the main two issues, as clarified by our judgment at the Employment Appeal Tribunal, related to the issues of referrals and of indirect discrimination of women solicitors in the Respondent firm.[5]In the circumstances to which we referred at length in our original judgment, we were satisfied that the Tribunal chaired by Ms Cook had mishandled the hearing, had rejected the attempts of both parties to summarise the issues so that in the event they could have been slimmed down and comprehended and, in particular, took insufficient care to ensure that the submissions of the parties had adequate time to be considered, both by the opposite party and by the Tribunal, and were considered. We gave a series of directions as to how the matter should now be dealt with.[6]Our judgment in that case has been recognised subsequently as containing what are now, we hope, helpful guidelines for the Employment Appeal Tribunal in future in addressing the question as to whether a remission should, exceptionally, be to the same tribunal. There is no doubt that the previous practice for many years had been solidly in favour of remitting to a different tribunal, simply on the basis that, otherwise, justice may not be seen to be done.[7]In the bundle of authorities, helpfully put together by the parties, there is a raft of examples of cases going back many years in which the EAT has allowed an appeal and explained why it was remitting to the same tribunal. The unreported judgment of the panel chaired by HHJ Ansell, William Cooke Sheffield Ltd v Bramhall delivered on 14 April 2004 UKEAT/0899/03/RN includes reference to a number of such cases and one of them, namely Dennehy v Sealink UK Ltd [1987] IRLR 120 referred to the difficulty of an industrial tribunal, as it then was, having to "eat its words" and to its being much better in a case such as that was that the case be remitted to a fresh Tribunal.[8]It was similarly in Robson v Commissioners of Inland Revenue & Ors [1998] IRLR 186 the conclusion of Lindsay P that it would be unfair to expect the successful appellant, in that case the Claimant, to have any confidence that she would obtain fair treatment if the matter went back to the same tribunal.[9]In none of those cases was any attempt made to analyse the factors which ought to be considered if a decision needed to be made as to whether to send it back to the same or a different tribunal and our analysis, to which we have referred in Sinclair Roche , as reported, is not only the first such analysis so far as we know, but has subsequently been referred to by the Court of Appeal without disapproval in Barke v Seetec [2005] IRLR 633 . Of course, nothing in that judgment should be regarded as anywhere near holy writ or, in any event, as exclusive of the considerations which may be relevant, but it does list a number of those considerations. We refer to paragraphs 46 and 47 of the judgment.[10]Paragraph 46.1 deals with proportionality, which must always be a relevant consideration. We pointed out that the award here made, on the Remedies Decision of course, which hangs upon the success or otherwise of the appeals by the Respondents, both on liability and on remedy, was for £900,000. There was plainly an issue as to the expenditure of costs on both sides, but it was to be seen in the context both of the amount of money at stake and also the importance to the parties, and, as we pointed out, the stress and inconvenience of the parties in reliving a hearing had also to be taken into account, but were inevitable once there was to be a remission of any kind.[11]In paragraph 46.2 we referred to the problem which could arise in sending back a case to the same tribunal if there was the risk that that same tribunal might have lost its recollection. In paragraph 46.3 we refer to bias or partiality: "It would not be appropriate to send the matter back to the same Tribunal where there was a question of bias or the risk of pre-judgment or partiality. This would obviously be so where the basis of the appeal had depended upon bias or misconduct, but it is not limited to such a case".[12]In paragraph 46.4 we referred to the situation of a totally flawed decision, where it would be inappropriate to think that the appellate tribunal would have confidence in the matter going back to the same tribunal. But there might be a situation in which, nonetheless, the Appeal Tribunal had confidence that, with guidance, the tribunal could get it right second time; but that, clearly, would be the exceptional case.[13]In paragraph 46.5 we referred to the danger of the "second bite at the cherry" as Lord Phillips, now Lord Chief Justice, pointed out in English v Emery Reimbold & Strick Ltd [2003] IRLR 710 . We said this: "If the Tribunal has already made up its mind, on the face of it, in relation to all the matters before it, it may well be a difficult if not impossible task to change it: and in any event there must be the very real risk of an appearance of pre-judgment or bias if that is what a tribunal is asked to do. There must be a very real and very human desire to attempt to reach the same result" and we opined that the Appeal Tribunal would only send the matter back if it had confidence that, with guidance, the tribunal, because there were matters which it had not, or had not yet, considered at the time it apparently reached a conclusion, would be prepared to look fully at such further matters and would be willing and enabled to come to a different conclusion, if so advised.[14]We then referred in paragraph 46.6 to the norm of Tribunal professionalism which one could expect from employment tribunals, and we then concluded as follows: "It follows that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a 'totally flawed' decision described at 46.4), then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal".[15]We found it, as is apparent from that judgment, a difficult and carefully balanced question as to whether in the circumstances of this case, notwithstanding the strength of the conclusions by the Tribunal in certain respects in relation to the evidence it had heard, that it could be said that there was "unfinished business to be done" (paragraph 47.2 of the judgment) so that, so far as the referrals issue was concerned, the Tribunal was "more or less at halfway, although it needs to set out clearly its conclusions, after hearing further evidence, as to the nature and extent of the unfavourable treatment insofar as it so finds it, but it will in any event need then to move on to consider in detail the Respondents' explanations." We then concluded, at paragraph 47.3, that we were confident that the Tribunal would approach its renewed task free of preconceptions and with an open mind, and we emphasised that all bets would be off and the book would be open, encouraging the Tribunal to approach the case from that point of view.[16]We do not believe that there was any doubt about the content of our judgment and its approach, but it appears that the Chairman, Ms Cook, to whom the matter was remitted, was in some degree of uncertainty as to the impact of it, so far as whether any of the findings of fact that the Tribunal had made on the first occasion were still binding; and she wrote a letter to the Employment Appeal Tribunal of 27 October 2004, to ask for such clarification, and we gave that clarification on 8 November, namely that although, of course, the evidence, in so far as before the remitted hearing, would not need to be reheard (save in so far as it could and would be supplemented and further cross-examined) the findings of fact made by the Tribunal on the first occasion were all set aside.[17]It was against that background that we hoped that a remitted hearing would be more speedily dealt with and more efficiently and justly dealt with, despite the risks, if it were sent back to the same Tribunal. It is apparent from my subsequent judgment, to which we have referred, on 12 April 2005 and to which we shall refer later in more detail, that our hopes were not being fulfilled. As we shall describe, I delivered a judgment on that date very concerned at what had occurred in the interim, so far as the management of the case by the Chairman was concerned, saying that my confidence had been shaken by what had occurred. I refer at least three times in the quotations which we have made above from our original judgment where we had referred to the issue of confidence in relation to the continuing hearing by the same Tribunal, and in April I effectively gave what Mr Gatt QC described, using a colloquialism (but one to which we neither take exception, nor did Ms Eady take any objection), as a 'yellow card' to the Chairman in relation to how she had subsequently handled the matter and, as we have described, I adjourned the application to review the order for remission to the same Tribunal.[18]It is clear, as Ms Eady has submitted, that, but for what has now occurred, like it or not, the Respondents would have now remained facing an imminent hearing remitted to the same Tribunal, and, although it is accepted that the fact that the application for review was adjourned rather than disposed of means that all facts are open to be considered, and must be considered, now, nevertheless it is simply the statement of the obvious that, without something more occurring, as it has done, it is unlikely that the application would have been restored. Consequently, without those further matters, this issue, which we now have to decide, would not have fallen to be resolved; and the original application would have remained adjourned, but become moot once the fresh Tribunal hearing took place - now planned for a week today, starting, for 10 days' hearing of evidence, on 28 November. But what has arisen is the series of events of early November 2005, which has led to the independent appeal which is now before us and which we shall now describe.[19]Service of witness statements occurred on 25 October 2005; and attached to the statement of Mr Stockwood, one of the Respondent's witnesses, were some schedules of billings relating to clients of Sinclair Roche, the Respondent firm as it then was, in relation to whom there would be an issue with regard to what we have described as referrals. We do not propose in this judgment to say a great deal as to what that issue amounts to, because it is apparent from our earlier judgment. But, in essence, the issue between the parties is now boiled down to the case for the Claimants that fewer clients of the firm were referred to them and, inexplicably so, than were referred to certain male solicitors, thereby rendering it the more difficult for them to build up sufficient billings to be considered for partnership based upon financial achievement. Consequently, what ought to have been (but was not adequately) the issue at the first hearing, and will plainly be the issue at the remitted hearing, will require a very careful analysis, hopefully much of it done by the parties agreeing schedules and other matters between them based upon the disclosure, so that the Tribunal can make a judgment, in relation to the clients of the firm who are in issue, as to whether there was some inappropriateness of allocation, and whether that inappropriateness of allocation resulted from arguably discriminatory treatment of them as women or has some other justification, such as particular client contact or particular speciality of the lawyer to whom the matter was referred.[20]Mr Stockwood's supplementary statement sought to reach or argue conclusions, or found potential conclusions, from the schedules attached to the statement. Those schedules were in very substantial part based upon documents which were already in disclosure between the parties. But it appeared to the Claimants, on receiving Mr Stockwood's schedules with their explanation attached, that there were or may be documents underlying those billing schedules which had not been disclosed. The Claimants wrote a letter dated 31 October 2005 to Mr Bercow of Stephenson Harwood who is handling the matter on behalf of the Respondent firm. That letter referred to the fourth statement of Michael Stockwood and the schedules appended to his statement. It noted that Mr Stockwood referred in his commentary to billing records which were:
"obtained from a document created for this purpose by the financial administrator from the Hong Kong office who was able to access the old Sinclairs accounts and to whom I had access…earlier this year"
. The letter in those circumstances, entirely without prejudice to other rights, sought from the Respondents disclosure of all documents relied upon in respect of the schedules that were not previously in the bundles of the hearing and sought that disclosure forthwith, and in any event before noon on Wednesday 2 November, failing which they would make the appropriate application to the Tribunal. The letter was without prejudice to its position in respect of the relevance and/or admissibility of certain other documents which were appended to the statements of Mr Morgan and Mr Cawley.[21]No disclosure was given by noon on 2 November which was a period of 1½ days. No criticism is made of the very short timescale imposed, because of the imminence of the hearing, but it was, nevertheless a short period and no response was received; and not surprisingly, in those circumstances, the Claimants made application to the Employment Tribunal, by letter dated 3 November 2005:
"On 31 October 2005 we wrote to Stephenson Harwood identifying the documents that had not been disclosed to us and requested disclosure of the same by noon on Wednesday 2 November. A copy of our letter to Stephenson Harwood is attached. At the time of writing this letter we have not received any response to our letter or disclosure of the documents requested"
. The letter sought from the Tribunal an order that the Respondent give disclosure of the documents identified in their letter of 31 October, that is the Stockwood billings schedules, by no later than 5.30pm on Friday 4 November, failing which the Respondent would be debarred from relying upon the information contained in those documents and any schedules incorporating information from them.[22]The Respondents did not fail to comply with that requirement. At some stage in the morning of Friday 4 November, a letter was sent (the first letter of 4 November) dealing with a large number of issues which had been raised in the two letters from Ms Heard to which we have referred, and enclosing the further billings schedule, attached to a copy of Mr Stockwood's commentary referred to in the letter of 31 October, which contained the statement:
"Unfortunately, by the time I realised that I had not asked for [ the further schedules from a Ms Lau - the financial administrator of the Hong Kong office - who had been able to access the old Sinclairs accounts and to whom he had access for a short period earlier this year when she was temporarily in London ], the window of opportunity [ as it was described ] had closed again [ i.e. Mrs Lau's visit to London had come to an end ]"
. Attached to that commentary was the missing schedule, which ran to 12 pages and was apparently drawn down on what we have been told today is a slow moving programme from the computer records apparently kept in Hong Kong on computer.[23]The reaction from the Claimants was to send a letter of 4 November, that is later on that same Friday, acknowledging that they had received the Stockwood schedules:
"We note that the document referred to in Mr Stockwood's statement, and specifically sought on Monday 31 October, has, following our message to the tribunal yesterday, now been disclosed: four days after it was requested and over two weeks since it was identified in Mr Stockwood's statement."
A short set of points is made arising out of that, but not amounting in any way to any fresh application to the Tribunal. Indeed, it does not, on the face of it, seem that there was any particular need for copying it to the Tribunal, as they did, other than for the purpose of notifying the Tribunal that the documents had been received.[24]Nevertheless, there was a second letter of 4 November in response, again copied to the Employment Tribunal, by Stephenson Harwood on behalf of the Respondents, seeking to meet some of the points made by the Claimants in their letter but indicating, in terms, that "given that the Claimants are not at this stage seeking any further order from the tribunal, we do not propose to burden the tribunal with further detailed correspondence at this stage".[25]Notwithstanding the receipt by the Tribunal of such confirmation from the Claimants that the document that they had sought had been received, within the deadline set by them, and consequently that the only order that they had sought, namely to debar the Respondents from relying on those documents if they were not so produced, fell away, the Chairman made a sweeping Order of 7 November 2005. She did this without giving any notice to the Respondents or, indeed, the Claimants, of any intention to make, or indeed even consider, such an order, which was vastly wider than anything that had been sought by the Claimant and, in particular, without giving the Respondents any opportunity to make submissions with regard to it. That Order reads as follows, in a letter from Mr Edwards for the Regional Secretary of the Tribunal, addressed to both parties:
"The Chairman of the Tribunal, Ms Cook, has instructed me to write to you. Ms Cook has noted the contents of the Claimants' letters to the Tribunal dated 3 November 2005 and to the Respondent dated 31 October 2005, together with the Respondent's faxes and the Claimants' response of 4 November 2005. The parties are reminded that disclosure was to have been complied with by 6 July 2005. Neither party will be allowed to rely on documents produced after that date"
. We have described that as a sweeping order. It was not only sweeping in terms of its intent, object and effect, because a substantial number of documents had been disclosed by the Respondents and a small number by the Claimants, but it was wholly inconsistent with the Order that Ms Cook, if she had turned her mind to it, might have remembered that she had herself made on 15 July 2005 (a matter itself complained of by the Respondents, to which we will return later) on an application by the Claimants for further disclosure when she said this:
"I would expect the Respondent to disclose by copies without further delay all documents in their possession which fall within the first category identified by the Claimants"
. No timescale was given for that Order but, as we have indicated, it was sent to the parties on 15 July and it plainly anticipated, indeed required, that there would be further disclosure as, indeed, there was, in July and early August of 2005.[26]The Order of 7 November 2005, in our judgment, was one that was wholly unjustified. Very stringent criticism has been made of it by Mr Gatt QC orally and Mr Jeremy Lewis in a very lengthy and helpful Skeleton Argument prior to this hearing for the Respondents. No reasons were ever given for the Order. It was not sought by the Claimants: in so far as the Claimant had sought any order that request had been complied with, and it was in any event massively wider than the order which they had sought. It paid no consideration at all to the earlier history, the efforts that both sides had been making to get this case on for November against a very difficult and sensitive background. On the face of it, it did not address at all the statement of Mr Bercow, which had been served and was before the Tribunal, explaining the difficulties in relation to disclosure with regard to referrals, which the Respondents had asserted they had been under, and many of those referral documents would have been ruled out by the Order. Equally, it was made against the background, to which we have referred, of giving no notice to the parties, and no opportunity for the Respondents to make any submissions, notwithstanding having received the second letter of 4 November, from which we have quoted, which, in terms, said that the Respondents understood that the Claimants were not, at this stage, seeking any further order from the Tribunal, which was an accurate understanding, but the effect of which was falsified by the Tribunal's then proceeding to make an order nevertheless. The Respondents have put forward, through Mr Lewis's detailed Skeleton Argument, the arguments they would have made had they been given the opportunity of doing so.[27]Quite apart from such arguments by way of explanation as to the difficulties of disclosure and as to why there had or had not been any delays or failures, there was no consideration by the Chairman of the impact on a fair trial, on the one hand of the absence of any documents that she would thus exclude or of their belated arrival on the scene on the other. The authorities in the Employment Appeal Tribunal are well established. Ms Eady herself has drawn our attention to National Grid Co Ltd v Virdee [1992] IRLR 555 and there is, further, the recent authority of Bolch v Chipman [2004] IRLR 140 . It is necessary, before a Tribunal takes a step which debars evidence on one side or the other, to consider the impact on the hearing of the lateness of the documents on the one hand and of the debarring on the other. None of that was done by this Chairman. Ms Eady has accepted, in the course of argument, that this was – and it is obvious why it was formulated in this way by reference to the judgment that we gave in this case, which we have quoted – an inexplicable lack of professionalism by the Chairman. On any basis, this was an Order which should never have been made.[28]The next matter that arose was a letter by the Respondents - there was no complaint as to the making of the Order by the Claimants. This letter of 7 November requested that the Chairman give reasons for the making of that order. It read as follows:
"We hereby request full written reasons as a matter of urgency, as this ruling will be the subject of an urgent appeal to the Employment Appeal Tribunal"
. The response sent by Mr Edwards of the Employment Tribunal was not to supply reasons for the order but, by letter of 8 November, to say:
"A Chairman of the Tribunal, Ms Cook has instructed me to inform you that there will be a case management discussion on discovery issues at 2pm tomorrow 9 November 2005" and that took place. It is clear that what took place was not an application by the Respondents, and, a fortiori , not by the Claimants, to revoke the order of 7 November. It was, as described by the Chairman herself, in that letter sent on her behalf, a meeting called by her as a "case management discussion on discovery issues"
. Mr Lewis, in the very short time available, put together a Skeleton Argument which made within its text an application to revoke the order.[29]At that hearing the Chairman revoked the order of 7 November, giving no reason or justification for having made it to start with; but it is plain from the note of that hearing, which has helpfully been agreed between the parties, that she did not even begin the hearing by indicating that she was prepared or intending to revoke it. She simply stated that she took Mr Lewis's Skeleton Argument as an application to vary the order.[30]We should pause to say how, as was the case before me in April 2005, the parties have so clearly co-operated in relation to matters before us. We are told that there is a great deal of bitterness between the parties and we have no reason to doubt that. We have already indicated the great amount there is at stake and that the length of time over which the disputes have rankled, but we are also led to believe that there are difficulties in co-operation between the parties at the Tribunal. We have seen no sign of that, and certainly any problem appears to have been caused, on what we have seen, by the Tribunal and not by the parties. At this stage we only exemplify that by the refusal by Ms Cook in March of this year of the joint application by the parties for an adjournment of the hearing date in May which was manifestly unholdable, to which we will later refer, by the rejection by Ms Cook of, or at any rate her objection to, the parties' agreement notified to her in October 2005 to put back the date for exchange of witness statements by a few days and, most obviously, by the making of the order of 7 November, to which we have referred.[31]That co-operation has today been very clearly further exemplified by the parties' agreement of the note of the hearing of 9 November, prepared on behalf of the Respondents and very minimally altered by agreement with the Claimants in the light of their own notes. It has enabled us to give the fullest consideration to this appeal in full knowledge of the facts. The Notice of Appeal was only lodged on Monday last, which is only a week ago, but the parties had, before the Notice of Appeal, co-operated in fixing a date convenient to them for the full hearing of the appeal and, as we have indicated, they have co-operated in the agreement of this note and in the very speedy exchange of Skeleton Arguments, whose fullness and clarity we have already remarked on in respect of Mr Lewis and the same must be said in relation to Ms Eady.[32]What that has meant is that what would in any event not have been possible, given the shortness of time between the lodging of the Notice of Appeal and the full hearing today, namely the operation of Paragraph 11 of the Practice Direction seeking comments, in a case where bias or misconduct is alleged, from the Chairman below, has not been necessary. The purpose of Paragraph 11 is not in order to allow in some way for the Tribunal below to play a role in an appeal or to express an opinion which may be influential upon an appeal or, indeed, to defend any alleged actions taken. It is intended so that there should be no dispute as to fact once the matter comes on for hearing before the Employment Appeal Tribunal, because, although not on affidavit, the account of events by a chairman is always taken as, if not unchallengeable, certainly very likely to be accurate.[33]Because of the agreement of the note between the two parties, there is no issue as to fact for whose resolution Paragraph 11 would have needed to be operated; and both sides have thus accepted that it is unnecessary to have considered Paragraph 11 in this case because of the absence of any disputed fact. We have therefore been able to understand in full, from the very clear agreed transcript, precisely what occurred on 9 November.[34]Reasons for the order that Ms Cook made on 9 November have been very speedily put together by Ms Cook and we are grateful for her speed. Mr Gatt QC has pointed out, and of course, it is right, that she put together those reasons knowing that the matter was coming on for appeal and therefore it was incumbent on her of course to set out all the reasons for her decision knowing that they would be considered by the Employment Appeal Tribunal. In those circumstances, it is to those reasons for her Order, entered on the Register on 15 November, to which we look to find justification for the Order which she made on 9 November. In the event, we have had the benefit of the agreed transcript, but they have added nothing to the document prepared by Ms Cook The reality is that the Reasons, as will appear, are extremely exiguous.[35]We have referred to the fact that the Order of 7 November was abandoned by Ms Cook, in the sense that it was both revoked and never sought to be justified. What was made in its place was a fresh Order of 9 November, which is now the subject matter of the main appeal before us. That Order makes no reference to any other documents than the schedules to the Stockwood statement which had been the subject matter of that letter of 31 October to which we have already referred. We are told by both parties that, at least in relation to one other set of documents, the Maexbic documents, the Tribunal expressly reserved the question as to whether such documents should be admitted at the trial. There is no sign of that in the Order of 9 November or in the Reasons of 15 November. The only order that was made related to the Stockwood schedules. So far as that is concerned, Ms Cook said this in her Order at paragraph 2: "2. Insofar as the statement prepared by Mr Stockwood relies on documents and data drawn from the billing records of [the Respondent], which were produced as a report by Ms Lau, he will not be allowed to rely on it, and this evidence will be excluded. This is because of the Respondent's failure to allow the Claimants to inspect in a timely manner, or at all, the documentation on which the schedule was based. There is no objection to Mr Stockwood's statement so far as his evidence is based on documents which are already contained in the earlier hearing bundles".[36]There is no indication in the Reasons that there was ever a request for inspection or that any such request was refused by the Respondents and we have asked today whether there was any such request, and the parties have confirmed its absence. On the face of it, therefore, the only basis of justification put forward by the Tribunal for making this order related to an inspection never sought nor refused. Ms Eady, however, has drawn our attention to what is said in the Reasons in paragraph 4, as follows: "4. After hearing lengthy submissions from both counsel I directed that part of the documentation produced by the Respondent be excluded… [Ms Eady's] first submission was that the Claimants' rights to a fair trial was prejudiced by the late submissions made by Mr Stockwood. 5. In my view, having considered what was said by Mr Lewis and having looked at the documents, I am satisfied that the Respondents have acted unreasonably in presenting documentation so late".[37]What Ms Eady submits is that, in fact, although the way in which the Tribunal put the matter in paragraph 2 was by reference to inspection, it was in fact intended to refer to the late disclosure, in the context of the explanation given by Mr Stockwood in his covering summary about the "window of opportunity" to which we have referred. There is, however, no explanation by the Tribunal that that is the case, and that covering summary was, of course, before the Tribunal when it made its Order of 7 November (and when it held the hearing of 9 November) and no reference is made to it. The explanation given to us today by Mr Gatt QC and Mr Lewis, which is the explanation which, they say, would have been given to the Tribunal, had it become an issue, is that the reference was a purely historical one to the "window of opportunity" closing. It was part of the explanation given by Mr Stockwood, but the position now would be, if asked, that the computer records, albeit that the programme is a slow one, would be accessible without Ms Lau, although it would have been helpful to have Ms Lau while she was in this country because she can give explanations; but no doubt Ms Lau could give those explanations if needed on the telephone or otherwise from Hong Kong. It is not the case that it is not now feasible to inspect the records.[38]We are clearly unable to know whether that explanation is right or not, but the one clear point is that the Tribunal did not address it. The significance of the fact that it did not address it is that although, in the circumstances to which we have referred, there is thus the most exiguous reference to the right to a fair trial, not by reference to the conclusion of the Tribunal but by reference to Ms Eady's submissions, there was no adequate consideration of the crucial issues (which were even more conspicuously absent with regard to the Order of 7 November but still absent in relation to the substitute Order of 9 November) namely(i) the impact of ruling out the Stockwood documents and(ii) the impact of allowing them in, on the fairness of a trial; and that is the necessary balance of prejudice which is required. Of course there are circumstances in which a tribunal can find that there has been such contumelious conduct by the late-disclosing party that, even though it has no impact on the fairness of a trial, they should nevertheless be punished for their contumeliousness by being disallowed from relying on documents. Not only does that not appear to us to be this case but, in any event, that was not the basis upon which the Tribunal put either its reasoning or its finding.[39]In those circumstances, it is plain to us that what occurred here was a botched-up effort to put something in the place of the Order of 7 November which should never have been made, and there was not on 9 November the correct approach which there should have been. Ms Eady attempts to justify the position almost by asking us to ignore the fact that the Order of 7 November was made, but it is very difficult to do that. Had the 7 November Order not been made, the position would have been that the demand – a very correct and understandable one – made by the Claimants in their letter of 3 November that the documents be produced by 5.30pm on 4 November would have been complied with. The next step would have been, if thought right, a letter saying "well, thank you for those but we have now looked at them and we shall want to inspect the underlying documents. Please give us the most urgent access" and then we would have had to have seen what would occurred. But what, in our judgment, was not permissible was this exercise that occurred on 7 and 9 November. It was plainly completely erroneous in law; it did not address any of the appropriate legal issues. It was not the fault, and we emphasise that, of the Claimants; they simply did their best to cope with the Order of 7 November once it was made, in the sense of accepting it and not objecting to it and then seeking to find something which could take its place on 9 November without, in any way, alienating the Chairman by doing what they must have felt like doing, namely resiling from reliance on what had occurred.[40]But whether or not it was the fault of the Claimants, and we are satisfied that it was not, this is an order which cannot stand and it is coupled with, and exacerbated by, the further Order that the Tribunal made, namely:
"The Respondent is ordered to pay the Claimants' legal costs of today's hearing in the sum of £500 plus VAT because of the unreasonable conduct of this litigation in the manner in which the Respondents have given late disclosure of documents."
The reasons for that Order are set out very shortly in paragraph 6: "In the circumstances I find the Respondent's conduct with regard to disclosure of documents to have been unreasonable. Had it not been for this late disclosure, there would have been no need for the case management discussion. The Claimants are entitled to the costs of instructing Counsel".[41]The reference to the circumstances are to the matters set out in relation to the Stockwood documents in paragraph 4, and to the Cawley and Morgan documents referred to in paragraph 5, with regard to which explanations had been put forward by the Respondents to which no consideration was given, and which were not rejected, by the Chairman, and which documents, in any event, in the result were not ruled out by the Order that she made. It is quite apparent that the £500 plus VAT, which was Ms Eady's brief fee in relation to the hearing on 9 November, was expressly ascribed by the Chairman to the cost of that hearing, in relation to which, the Chairman stated in paragraph 6 of her Reasons: "Had it not been for this late disclosure, there would been no need for this case management discussion".[42]There was no consideration of the Bercow statement before the Tribunal which related the difficulties in relation to disclosure with regard to referrals, right, wrong, material or immaterial; no consideration of the letter of 15 August 2005 in which further explanations were given; no addressing of the arguments by the Respondents seeking, rightly or wrongly, to justify what had occurred. We can see the difficulties under which both parties were labouring in their attempt to get this case on, and the appropriateness of the Claimants' letter of 31 October which restricted itself to the Stockwood documents.[43]Whatever might have been the decision had this question been addressed appropriately -and it would, in our view, much more appropriately have been reserved in any event to the imminent hearing if there was to be any consideration of unreasonable conduct - the one thing that was totally clear was that it was not the conduct by the Respondents which had led to what Ms Cook called the "case management discussion". What that hearing constituted was the revocation of an Order which was made by the Tribunal, not at the instance of the Claimants, and which should never have been made, and which, once made, should have been revoked on review by the Chairman, if such she was willing to do, on paper immediately and without a hearing. There is no question at all of the Respondents being responsible for the cost of that hearing. We have already speculated as to what might have happened had the Tribunal acted properly with regard to dealing with the letter of 3 November; there might or might not have been necessity for a hearing. We doubt it. One thing that would not have been necessary is the blockbusting two hour hearing which it took to revoke an Order which should never have been made. In those circumstances, we are entirely satisfied that the appeal of the Respondents should be allowed with regard to the order of 9 November.[44]We turn then to the history of the matter in the context of the restored application to review our order for remission to the same Tribunal. The background to my judgment of 12 April 2005 is this. There was a directions hearing by Ms Cook on 20 October. At that hearing, a number of issues was raised by both sides with regard to, particularly, the vexed question of referrals, how it should be dealt with both as to the provision of particulars by the Claimants and the responses by the Respondents. There was raised at that Tribunal the possibility that there was some ambiguity in our judgment and Ms Cook said that she would write to the Employment Appeal Tribunal, which she did as we have described, on 27 October and we responded on 8 November. But that ambiguity out of the way, there was no reason why a short answer should not have been given to the very simple interlocutory directions which were required to be given by Ms Cook after that hearing of 20 October.[45]In paragraph 8 of my judgment of 12 April 2005, I explain and criticise the fact that there was no response whatever by the Chairman or the Employment Tribunal to the fairly constant requests and approaches by both sides for Ms Cook to deliver her judgment after the directions hearing on 20 October, notwithstanding her having reviewed, very shortly after request for it, the clarification sought from the EAT. The months were passing and the trial date of May 2005 was approaching. Not only was there no response or explanation, but the totality of that delay amounted to four months' unconscionable and unexplained delay out a total of seven months which remained between 20 October and the trial date.[46]The expiry of that four months which, as I describe in paragraphs 8 and 9 of my judgment, exceeded the amount of time which is ordinarily anticipated to be taken by the most difficult of detailed judgments on liability by an Employment Tribunal Chairman with lay members to consult, ended with the delivery on 15 February of a most unsatisfactory Order. This Order did not deal with the issues that had been raised at the hearing of 20 October and, as I have described in paragraph 9 of my judgment, it sought to impose a retrospective timescale which bore no relationship whatever to the fact that, due to the delay by the Chairman, four months had passed.[47]Both parties requested clarification and a further Order was delivered on 15 March when, to an extent, the issues were addressed. But both in that judgment and the further letters of 18 and 23 March, which were intended to supplement the Order of 15 March, there was a still wholly inadequate addressing of the issues and the directions required. No adequate provision was made for the enablement of proper Further and Better Particulars, and no provision was made for proper responses by the Appellants.[48]On 18 March it appears that the Chairman was simply 'presuming' what the way was in which the Claimants were putting their case (see paragraph 8 of the Tribunal's letter of 18 March) and in the Tribunal's letter of 23 March, the Chairman recorded that she "accepted the Claimants' assurances" that their schedule was compliant with her order, and she adjourned the still unresolved issue of the scope of the schedule to the hearing, both of which I criticised in paragraph 12 of my April judgment. What is wholly clear is that, once faced with what began as a joint application for an adjournment of the hearing in May, the Chairman should have acceded to it and adjourned the hearing, especially as the delay was the fault of the Tribunal, not the parties (see my judgment at paragraph 11). Further, the Chairman inappropriately, in our judgment, described the position taken by the Respondents with regard to that delay as "disingenuous" (see paragraph 5 of the order of 18 March).[49]I described in the April judgment my confidence as having been shaken by what had occurred; but, in the circumstances to which we referred earlier, the application to review was adjourned. Since the adjournment of that application, we shall limit ourselves to referring first briefly to the order of 15 July, which we mentioned with reference to its being inconsistent with the subsequent letter of 7 November. We quoted from it above, and the words appear to us, at any rate, in respect of expecting "the Respondent to disclose without further delay" the documents in the relevant category, to be a criticism of the Respondents. Ms Eady accepts that no criticism ought to have been made. Ms Eady submits that the words are ambiguous. On any basis, they are ill-chosen words and certainly cause an independent reader to conclude that they amounted to an inappropriate criticism. What was up for discussion on 15 July had been important questions, none of which could have merited criticism of the Respondents.[50]But, clearly, against the background of what we have referred to as the "yellow card" in our judgment in April, the events to which we must immediately turn, are those of 7 and 9 November, in relation to which we have been extremely critical. We shall not repeat the conclusions we have come to with regard to the Order of 7 November or the attempted replacement Order of 9 November. But we must conclude our review of the facts by reference to the agreed notes of the hearing as they are now are, on 9 November. Page 15 of that note records Ms Cook asking as to whether there was anything else. It was noted that a reasonably sized room would be made available for the hearing and it would be hoped that it would be the same room. Ms Cook then asked Ms Eady whether she had any further applications. Ms Eady responded "no". Ms Cook then asked what about costs of today and Ms Eady then took instructions and proceeded to make an application for costs. Mr Gatt QC points out that it would appear therefore that the order for costs, which we have already found to be ill-founded in law, was one which was initiated by the Chairman and not by the Claimants.[51]This passage followed, at page 14, statements made by the Chairman as follows. The note says this:
"As to the documents exhibited to Mr Cawley's witness statement, they should remain in as well. However, "it may damage [ Mr Cawley ]'s standing so far as the Employment Tribunal is concerned to disclose these matters so late"." and then the following passage is recorded: "
Ms Cook summarised that the Respondent could not rely on the schedule to Mr Stockwood's witness statement in relation to billings or any information drawn from it and as regards the rest, the Tribunal would hear what is said at the hearing. Ms Cook added:
"I am not impressed by the failure of individuals to disclose highly relevant documents to this case at a late stage. At the least it is indicative of a cavalier attitude towards this litigation. I cannot ever envisage myself ever having been in that position"."
Mr Gatt QC criticises the use of language and the apparent adoption of those views by Ms Cook at a stage when she has not yet tried (but is about to try) the remitted hearing, and at a stage when she could not possibly have reached any conclusions even with regard to the difficulties of disclosure or the causes of them, both because of the shambolic events that had occurred on the previous few days and the fact that she had not, on any basis, adequately considered the explanations given by the Respondents which had been put before her. How could she have done, given the shortage of time?[52]One of the cases which was referred to us in the bundle of authorities, namely William Cooke Sheffield Ltd, to which we have referred, referred to its being inappropriate for a Tribunal to hear a subsequent remitted hearing where they had set out "strident and hard hitting criticism of the employer's actions….", and it appears to us that a fair minded and informed observer could well conclude that, in this case, there was a real concern as to bias if the same Tribunal continued to deal with the case. It is on any basis capable of being asserted that this was "strident and hard hitting criticism" by the Chairman.[53]Ms Eady certainly seeks to defend the remarks made by the Chairman, particularly the first of the two passages that we have quoted. She has made her submissions before us, as she made them before the Chairman on 9 November, by reference to Mr Cawley's statement, and pointed out that it is not right to say that he is a third party to the action simply because, as an ex-partner of the Respondents, he is now employed elsewhere and that albeit, factually, he may not have appreciated the existence of the documents until he annexed them to his witness statement on 25 October, so that it is clear that they had not, until then, come to the attention of Stephenson Harwood, solicitors for the Respondents, nevertheless that indicates a slap-happy way of dealing with the obligation to disclose, which may reflect on the attitude of the Employment Tribunal once the remitted hearing comes to be tried; and it is right to say that the Chairman simply said that it may damage his standing. We can see force in the argument that Ms Eady puts forward. But Ms Cook added the second passage, which appears to us to fall into a different category. It is one thing "not to be impressed", but she clearly has formed a conclusion that there has been "a failure of individuals to disclose". That might be consistent with a non-judgmental conclusion as to failure to disclose, and simply indicating a late disclosure in the sense of later than the date set for the disclosure; but it does not read to us automatically like that, and certainly not when coupled with the following two sentences which are in very strident language. She says "at the least it is indicative of a cavalier attitude towards this litigation". This appears to start with the conclusion of cavalierness but leave open the possibility that the conduct is being worse than cavalier. She then makes a very clear statement about her own practice, presumably as a solicitor, that she "could not ever envisage herself" being in that position, which does appear to rule out any possibility of an open mind, at any rate in relation to the approach to disclosure.[54]Of course there are criticisms made by Ms Eady in relation to the fact that a number of documents were disclosed late. But this by no means appears to be an example of the kind of contumelious conduct, with which Tribunals are dealing on a regular basis, of disregard of orders. It may turn out at the hearing that adverse conclusions should be drawn against the Respondents, which may even impact upon conclusions in relation to alleged discriminatory conduct by them earlier which, in some way, they were seeking to cover up by some inadequacy of disclosure. It must, however, be said that at least in three respects, which have been explained to us by Mr Gatt QC- the Maexbic example, the Shanghai job application and the non-correction of the article about no women partners in the Respondents which was, in fact, corrected by Mr Morgan - the late disclosure was of documents which, on their face, would appear to exonerate the Respondents entirely, and thus it would hardly have been in their interest to make late disclosure of them. To consider those issues requires an open mind.[55]In those circumstances, we stand back and consider whether we are still of the view that we were in 2004 with regard to the risk which arises by virtue of remitting this, exceptionally, to the same Tribunal. We emphasise that this is not, and we accept that it is not, a simple rehearing of that question. We are looking at it again now in the light of the facts that have occurred subsequently. Mr Gatt QC submits (even by reference to our category of totally flawed judgment) that, even if we were not of the view, having addressed the failings of this Tribunal on the first liability hearing, that it was a totally flawed decision, now that we have seen totally flawed decisions by Ms Cook in relation to the decisions in February and March, and now in November of this year, we can no longer have any confidence that there will not be further totally flawed decisions. But leaving that aside, we are no longer, submits Mr Gatt QC, able to conclude that we have confidence that this Tribunal will be chaired with professionalism or without a closed mind.[56]Ms Eady has submitted that even if there has been lack of professionalism - and clearly she cannot defend, and does not seek to defend what occurred in March 2005 nor the Order of 7 November - nevertheless(a) the effect of that Order has been corrected, by its revocation and(b) it is not so serious as to lose confidence in the Chairman, certainly not if it has the result of losing next week's hearing. She submits that if it is only a question of a lack of professionalism, then the issue becomes one of a balancing act in which prejudice to both sides must be considered. She accepts, however, that if it is a question of the appearance of bias or of a closed mind, then it is not a balancing act, and convenience or prejudice must be relegated out of the consideration.[57]This is a situation which has not been brought about, as we have indicated, by the parties. We are satisfied on what we have seen that both parties have been diligently working towards a remitted hearing. There may be errors and oversights in a very large case such as this that is bound to occur, but it is absolutely essential that the remitted hearing is correctly and fairly tried, both in terms of how it is tried and in terms of the Tribunal having all the information. That is not to encourage late disclosure. On the other hand, it is equally not to rule out any documents which can be coped with if disclosed late. We conclude that every effort should be made to make sure that the remitted hearing should have all the information. We accept Mr Gatt QC's submission that if there is an inhibition or a restriction in relation to disclosure from the Respondent, that may impact more heavily upon the Respondent than upon the Claimant, given that the likelihood is, and we say no more, that this is going to be a case which is going to depend upon the transfer of the onus and the duty of the Respondent to give full explanation, the onus having been transferred to it. Thus the ruling out of evidence creates a greater prejudice on the Respondent. Of course set against that must be the prejudice suffered by the Claimants, if there is prejudice, of abbreviated consideration of any such late documents, particularly given that both the Claimants are now not in large firms.[58]Equally, we are satisfied that this situation is not the fault of the Claimants, albeit that they have lost the appeal that has now been brought by the Respondent, any more than it was their fault when they lost the appeal brought by the Respondents in April 2005. Both these have been appeals which had to be brought as a result of errors by the Chairman not of the making of the Claimants, but we are nevertheless faced with a very real problem. If we allow this case to go ahead, as clearly one would wish, next Monday, then it would go ahead in front of a Chairman who has acted as we have described.[59]If the matter does not go ahead next week, then the Tribunal will need to be reconstituted, although the Regional Chairman could almost certainly find a date in January for the three weeks or so which will be necessary for the matter to be heard. If however the matter is adjourned, it is essential that the Claimants first of all do not have their own professional obligations interfered with (and they both have trials to deal with in January) and that they are represented by Ms Eady who is, herself, occupied with important cases, which she is unable to return, through until April. The consequence would be that this case would have to be adjourned, through no fault of the Employment Tribunal or the Employment Appeal Tribunal, to 24 April. That is yet further and distressing delay in the resolution of the issues between these parties which have been going back since 2002. The EAT is now dealing expeditiously with its appeals, not least as can be seen from the speed with which we have dealt with this appeal, and the hearing times which have led in the past to very substantial delays at the appellant level no longer arise. It used to be no surprise that cases started in 2002 or the equivalent might not be resolved until 2006, but now we are pleased to note that is a very rare case. It would be the case here if it were now adjourned to 24 April 2006.[60]We are satisfied first that what has occurred, both in February and March and in November of this year, exhibits serious lack of professionalism by the Chairman, using the word in the context which we used it in our judgment. We cannot be confident that this Chairman will be able to handle this extremely sensitive case. It may be because it is one of those cases which, as sometimes happens, has got on top of someone who is intended to be in charge of it. That may be the explanation for the very substantial delay earlier in the year. It may be a case which has caused, as Ms Eady put it in argument, frustration. It may however simply be a case in which that rare occurrence occurs of a concatenation of mistakes. But we are satisfied that, in the light of what we have described, we cannot have confidence that this case will be handled, on a remitted hearing, with professionalism.[61]Equally, we also consider that there is at least an appearance of a closed mind in relation to the Chairman and her approach to this case. The appeal in March of this year resulted from her refusal of an adjournment which was jointly sought, at least in the first instance; but it was also against the background of orders which appeared to favour the Claimants and to accept assumptions in favour of the Claimants and reject arguments to the contrary by the Respondents. It may be that that was simply a misunderstanding which could be resolved once the matter went back to her. The inappropriate words used in the order of 15 July could have been only a passing remark or error. But as we see it, albeit that it might well have been, in those circumstances, that this case would have come to trial next Monday without any restoration of this application to review, the events of 7 and 9 November have, in our judgment, revealed a real risk that there is a closed mind.[62]Ms Eady has submitted that the Order of 7 November was, on its face, aimed against both parties, in the sense that it ruled out any reliance on documents by either party since 7 November, and Ms Eady submits that she would have wished to have relied on some of the documents disclosed by the Respondents and will now do so, as being helpful to her. The fact remains, however, that that Order was made after an application by the Claimants and, indeed, as we have indicated, going far outside it, and not at the application of the Respondents; that it impacted far more dramatically upon the Respondents, by ruling out evidence upon which it would be likely to want to rely in the circumstances of the transfer of the onus to which we have referred; and that the Claimants made no application to revoke or discharge it - it was the Respondents who did so. The words used at the hearing on 9 November, coupled with the inappropriate order for costs, further emphasise that there is a real risk of the appearance of bias on the part of the Chairman. Leaving aside the fact that our guidance in this case, as to when it was appropriate to send the matter to the same Tribunal, was intended to cope with what was inevitably an exceptional case, because of the numerous decisions in which it has been thought safer to send it back to the same Tribunal, we are satisfied that we cannot and do not have now, in the light of the facts that have occurred, the confidence which we expressed ourselves as having, in relation to this Tribunal being able to continue with an open mind and without pre-judgement. In those circumstances, the balancing act does not arise. We are entirely satisfied that it would be contrary to the interests of justice for this to be heard before the same Chairman. Had we considered the balancing act, we would still have concluded that it was, on balance, the right course to adjourn this until April. We had explained that we would have much preferred to adjourn it to January, but that would have caused prejudice to the Claimants. The further delay causes more prejudice to the Claimants because if they are right, they will receive a very substantial sum which they are being kept out of. On the other hand, there is quite plainly prejudice to both parties in having this very distressing dispute hanging over them yet further and so there is, to that extent, a balance of distress and prejudice and it would not be right to insist that this case goes on in January at a time when there would be real difficulties for the Claimants. It is possible that if this case is further adjourned, two things may happen. One is that there will be no doubt at all but that it will be fully ready for trial, with opportunities for both sides to assess the latest evidence, to seek the necessary inspection and above all, to render the case more manageable by a series of meetings perhaps between Counsel alone, for example, hammering out agreed notes of what occurred on the previous occasion but, in any event, in relation to trying to agree issues, agree the contents of schedules and produce a list of matters that are agreed and not agreed. All this can be resolved in front of a Tribunal which will, by then, have read into the papers.[63]The second thing which may happen is that we are going to incorporate in the Order which we make the provision for ACAS to be supplied with the papers, and expect a report back from the parties as to whether any progress has occurred. We do not necessarily hope or expect that there will be any result from this, but it is quite plain that this is a case where, albeit that so much is at stake, that is all the more reason why this long running and very serious dispute should come to an end without the further expenditure of time and cost. But that is only a hope which we express. It is not, in any way, a requirement that the parties do anything other than follow the directions to be made.[64]The last point that we have considered is that which was raised by Ms Eady, namely if we concluded that it was inappropriate for the matter to continue in front of the same Chairman, that it should be fixed in front of a different Chairman but with the same lay members. The only advantage which Ms Eady put forward in relation to this is one which we hope will not need to arise: that is if there was a dispute as to precisely what occurred at the previous hearing, it might be that lay members might have a recollection or a note. We do not conclude that that is a likely event to occur. Both sides, we understand, have notes taken at the previous hearing which they are in the process of seeking to agree, and we have already encouraged more attempts to agree notes or, at any rate, agree disputes. In so far as there remain disputes, there can and will be an order for the speediest application for the Chairman's notes in that regard, and we are content for any application to be made on paper to this Appeal Tribunal, if thought right, for the order for Chairman's notes, with any dispute between the parties as to their handling to be resolved by this Appeal Tribunal.[65]In those circumstances, there is a real risk that if there is a dispute about what occurred on a previous occasion, which cannot be resolved either by the parties' notes or by the Chairman's notes, that such a course, of seeing whether in those circumstances either of the lay members (assuming that both of them are there and, of course, it may be that there may be only one), has any recollection or note will almost, as it was put by Mr Gatt QC, result in their becoming witnesses in the case. Even if there were any benefit in relation to that, that benefit is outweighed by the real risk of a continued appearance of bias or pre-judgement. Both the lay members were parties to the previous decision, which we were almost minded to order should be sent back to a different Tribunal and we now, on consideration, have decided should be sent to a different Tribunal. To have a fresh Chairman without knowledge of what has occurred before, sitting with two lay members who may at any rate have the appearance of being challenged by what occurred previously, will not be of any benefit and will, in our judgment, put a real risk of the continuing lack of appearance of justice into the scales. In those circumstances, we conclude that the order should be made varying our earlier order that remission be made to the same Tribunal and substituting an order that it be to a different Tribunal. This case will be heard, allowing up to four weeks for the hearing, in the window between 24 April and 20 May. Because we do not require a particular constitution of the Tribunal, I am sure that the Employment Tribunal will ensure that there is a panel of an experienced Chairman and lay members available. Prior to that date, there clearly will have to be the fullest opportunity for further liaison between the parties of which, as we have already indicated, we see every sign of there being at least to some extent a possibility of fruitful result, and once the new Tribunal has read into the case, or at any rate the new Chairman, any necessary further directions can be considered by that Chairman well before the hearing, but at a time when the new Chairman is sufficiently informed.[66]In addition, there ought to be days set aside before 24 April when the full witness statements and supplementary witness statements can be read by that new Tribunal in order to seek to cut down the hearing time. We have already indicated that we believe that that hearing time of 20 days can be considerably reduced by the agreement of issues and the agreement of what is and is not in dispute derived from the schedules, so that it will not, in the event, be necessary for the Tribunal to wade through the schedules themselves.[67]We thank both parties, both for the detail of their submissions and for the speed with which they have been able to prepare what has been a very sensitive appeal and application in respect of a very fraught and difficult matter, and we do hope not only that we do not have the pleasure of seeing the parties again before us on this matter, at least until after the remitted hearing, but further that there really is a possibility of resolution prior to and without that hearing.

Cited in 2 later judgments