MRS S E COLDRIDGE v H M PRISON SERVICE [2005] UKEAT 0728_04_2004

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0728_04_2004

Case No Appeal No. UKEAT/0728/04/TM & UKEAT/0729/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS S E COLDRIDGEAPPELLANT

H M PRISON SERVICERESPONDENT

Before

Mr Justice Burton

Date 20 April 2005

The rule in Sealy v Consignia plc

[2002] 3 All ER 801

, that when an Originating Application is posted by first class post it is deemed to be presented at the employment tribunal two posting days later (ie excluding Sundays and Bank Holidays), is still the rule in employment tribunals, notwithstanding Anderton v Clywd County Council

[2002] 3 All ER 813

(and is now enshrined in the 2004 Rules 61(2)(a)). Thus an application posted on Friday, which did not arrive at the employment tribunal until Monday, is not deemed to have been presented at the employment tribunal on the Sunday (when there is no post). The Employment Appeal Tribunal Rule 37(2) expressly providing for an extension to Monday in such a circumstance is recommended as infinitely preferable. Appeal against ruling that application out of time dismissed.

Disclosure of Respondent's expert's report, unused and unserved because of abandonment of issue, rightly refused.

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

This has been the hearing of two appeals against Decisions of the Employment Tribunal at Southampton, after hearings on 13 August and 9 September 2003. Orders were made in respect of both of those two hearings (in the first case by way of an interlocutory Order by the Chairman, Mr Cowling, and in the second case by way of a unanimous Decision of a full panel on a hearing on the preliminary issue of jurisdiction) in relation to a claim brought by the Applicant, Mrs Coldridge, against the Respondent, Her Majesty's Prison Service.

The claims that were made by the Applicant were, so far as primarily relevant for our purposes, of disability discrimination. In fact there was what she alleged to be an unfair dismissal, in addition, and the Originating Application also included claims for wrongful dismissal, and what was described as personal injury, so far as the Originating Application itself was concerned, although that was later clarified as being a claim for disability discrimination, the unfavourable treatment being the dismissal. The conclusion, so far as concerns the substantive Decision with which we shall primarily deal in this judgment, on the preliminary point was that the claims for unfair dismissal, wrongful dismissal and disability discrimination were all presented out of time. There was also, by then, a claim in respect of sex discrimination, and that too was concluded to be out of time.

The appeal which arises out of that preliminary point is that which we have referred to as the "jurisdiction issue", which we will describe. There is also an appeal which arises out of the earlier interlocutory Order of Mr Cowling, which was a refusal of an order for disclosure, and that we shall refer to as the "disclosure issue". It is apparent, of course, that if the jurisdiction issue continues to be resolved, as it was by the Tribunal, against the Applicant, then the actions come to an end, and there will be no continuing action in any event, in relation to which the disclosure issue could be relevant; and so it would, in any event, fall away as moot and academic. But we have considered the point quite independently of the jurisdiction issue in any event.

A large number of points was raised by Mr Coldridge, a solicitor and the son of the Applicant, at the jurisdiction hearing in September 2003, to urge that the Tribunal should accept jurisdiction in relation to the various claims. In particular, so far as the unfair dismissal is concerned, there was his assertion that it was not reasonably practicable to have brought the claim in time. There were just and equitable points made in relation to the sex and disability discrimination cases.

The Tribunal resolved all the issues against the Applicant, and a Notice of Appeal was put in to the Employment Appeal Tribunal, which sought to challenge many if not all of those findings. An issue which was also included was a dispute which the Tribunal again resolved against the Applicant, as to when the effective date of termination of her employment was. There were also issues of promissory estoppel.

All those grounds contained in the Notice of Appeal were dismissed at a preliminary hearing of this Appeal Tribunal, differently constituted and presided over by Judge Reid QC, on 2 February 2005, and there was no appeal against the dismissal of those grounds. By then, however, a new ground had been put forward by proposed amendment of the Notice of Appeal, and on that ground alone, so far as the jurisdiction issue is concerned, the Employment Appeal Tribunal permitted the matter to go forward. We shall describe that issue in a moment. But it is obvious that it carried with it a procedural complication, to say the least, arising out of the fact that it was not argued below. Indeed, as will appear, it was common ground below that the position was contrary to that which is now sought to be argued by the Applicant. Further, it was not in the original Notice of Appeal, but only came in by way of the proposed amendment of a new paragraph 1.8 to the Notice of Appeal. The fact that it was allowed to go forward a full hearing, in the absence of the Respondent (because of course the preliminary hearing was, as is usual, ex parte ) does not permit the matter to be heard on the appeal; it simply enables it to be heard if the Appeal Tribunal so decides. There is substantial jurisprudence in this Appeal Tribunal, and in the Court of Appeal, in relation to when points can be taken afresh in an appeal tribunal (in particular the Employment Appeal Tribunal) when they were not taken below. The normal rule, hallowed since 1978, is that in Kumchyk v Derby City Council

[1978] ICR 1116

, which prevents the taking of new points on appeal which were not argued below.

There is an exception to that rule which is an exceptional exception, if we can use the expression. It is addressed in Glennie v Independent Magazines (UK) Ltd

[1999] IRLR 719

. It is summarised by Laws LJ at paragraph 18:

"A new point ought only to be permitted to be raised in exceptional circumstances…. If the new issue goes to the jurisdiction of the Employment Appeal Tribunal… that may be an exceptional circumstance, but only, in my judgment, if the issue raised is a discrete one of pure or hard edged law requiring no or no further factual inquiry. There is a public interest, beyond the interests of individual parties, that statutory tribunals exercise the whole of but exceed none of the jurisdiction which Parliament has given them upon such facts as are proved or admitted before them."

There appears to be a slight misprint in that judgment, hence the dots that we have included in the quotation, because we suspect that what Laws LJ meant or said is "if the issue goes to the jurisdiction of the Employment Tribunal below…", and perhaps he added "or of the Employment Appeal Tribunal". But it suffices to say that that is well understood now to be a proper exception to Kumchyk . It plainly applies here; namely where it is sought to be asserted, and successfully so by the Respondent below, that the Employment Tribunal had no jurisdiction, and the issue that is raised by the Appellant goes to the question as to whether there was jurisdiction, albeit that it was not an argument that was run. However, even if it is an argument as to jurisdiction, it is not appropriate, in the light of Laws LJ's words and common sense, for permission to be given to take the exceptional course of addressing for the first time at an Appeal Tribunal if it requires exploration of the facts which was not carried out, and could not be carried out, by an Appeal Tribunal. That does not apply here.

We are satisfied, and in the event Miss Warrender, for the Respondent Prison Service, did not seek to press her opposition, that we should permit the running and deciding of this point before us today. That is, as we have indicated, thus the only surviving jurisdiction issue raised to challenge the Decision by the Employment Tribunal; and if it were successful it would, of course, lead to the setting aside of the Employment Tribunal's Decision on the basis of a point that was not raised before it, so that it could hardly be said that the Tribunal was in error. But nevertheless that would be the consequence.

The facts, insofar as jurisdiction is concerned, can be set in very short compass. The three month period for service of proceedings in respect of unfair dismissal, wrongful dismissal, sex discrimination and disability discrimination expired on Sunday 30 June 2002. As can be seen, that was a Sunday and, so far as the employment tribunals are concerned (and indeed the ordinary courts) time limits can and do expire on a Sunday; and proceedings have, subject always to the various exceptions that are available (none of which, as the Employment Tribunal has, now unappealably, found, applied to the Claimant in this case) steps must be taken to lodge or serve those proceedings (in the case of an employment tribunal by way of presenting them at the employment tribunal office) before the expiry of the three month period, which in this case would be midnight on a Sunday. The employment tribunal, unlike the High Court, has no restriction to business hours, and consequently there can be service of a document at a tribunal office at any time between midnight and the following midnight.

The proceedings here, brought, or sought to be brought, by the Appellant, Mrs Coldridge, are handled by her son, the solicitor Mr Coldridge, were thus required to be presented at the Southampton Tribunal Office before midnight on Sunday 30 June. What in fact occurred was that it seems Mr Coldridge tried, unavailingly, to fax the documents during the Friday. No sufficient explanation was given by him as to why he delayed so long, and that is why the exception of no reasonable practicability failed before the Tribunal. But at any rate, if the faxing had been successful on the Friday, that would have resulted in presentation within the period. Why he took no further step in relation either to further faxing or hand-delivering is not clear to us. But he did not, and chose instead to post the Originating Application on Friday 28 June. It did not arrive until Monday 1 July, and was thus a day out of time.

As we have indicated, in those circumstances all kinds of other issues were raised by the Applicant to justify or explain the delay, or to seek to argue that there was not a delay in any event. None of those worked and they are now moot before us. So the only issue is whether the arrival at the Tribunal of an application on the Monday, with regard to proceedings which required to be served or presented on the Sunday at the latest, can somehow be said to be in time.

Two points must be made, therefore, before we address this issue, which are dedicated to extracting from the proceedings any wider question than that which is directed towards the particular point here raised. First, as we have indicated, this does not arise, and would not have arisen, in respect of the delivery of the Originating Application either by fax, or by hand delivery through the letter box, or otherwise by hand. Secondly, and this is a matter which we mention now but to which we will return because it may be an important policy question for consideration in the future, this problem would not arise in the Employment Appeal Tribunal. The rule in the Employment Appeal Tribunal is, and was, prior to the recent amendment to the Rules (by which nothing has changed), provided by Rule 37(2) as follows:

"(2)Where the last day for the doing of any act falls on a day on which the appropriate office of the Tribunal is closed and by reason thereof the act cannot be done on that day, it may be done on the next day on which that office is open."

Similarly by way of express provision in the Practice Direction, paragraph 1.8.3 states:

"…if a time limit expires on a day when the central office of the EAT, or the EAT office in Edinburgh (as appropriate), is closed, it is extended to the next working day."

What that means is that if a relevant period expires on a Sunday (or indeed for that matter on a Saturday or a Bank Holiday Monday), then for service the period is automatically extended to the following working day. If that had applied in the employment tribunals, then there would have been no issue here as to the proceedings being presented out of time.

It makes it, of course, far easier, so far as the Employment Appeal Tribunal is concerned, that all or most periods would not end on a Sunday, in any event, because the periods of time laid down by the Employment Appeal Tribunal tend to be in periods of weeks, for example six weeks from a decision in the employment tribunal, or six weeks from the date when a document is sent (namely a judgment or an order) by the employment tribunal to a party, so that it is overwhelmingly likely, if not inevitable, that time will run from a weekday, and thus to expire on a weekday. But if there are periods which otherwise expire on a Sunday (or indeed on a Monday which, at the relevant period, turns out to be a bank holiday) then provision for this is made, as we have described.

In relation to employment tribunals, it was, as we have indicated, common ground before this Employment Tribunal that the situation was as described by the Tribunal in paragraph 25.3 of its judgment, which we quote (although of course the context of this paragraph is by way of critique of the failure by the Applicant, but it is not for that purpose for which we quote the paragraph):

"There was no attempt at retransmission [that is of the failed fax] , no attempt to call the Tribunal and no attempt at hand delivery. Instead the applications were posted on a Friday evening when Mr Coldridge should have known that service is assumed to take place on the second day after first class posting excluding Sundays and public holidays (in this case that second day is Monday 1 July when, in the event, the application was date stamped by the Tribunal). This is the very point in the Consignia plc case."

We turn to the Consignia case because, as we have indicated, that formed the common ground upon which that proposition was argued, and as to which no exception was taken by the Applicant below. That is a reference to a case Sealy v Consignia plc

[2002] 3 All ER 801

. It was a decision of the Court of Appeal, on appeal, with its permission, from the Employment Appeal Tribunal. The issue there was very similar indeed to the facts here, and the dispute revolved around the arrival of the application on the Monday at the employment tribunal. As will appear, Brooke LJ, who presided over the court, although giving the third judgment, gave what he described as "helpful guidance" to employment tribunals; and he based himself upon what he refers to as the "ordinary course of post" rule. This he derived from section 7 of the Interpretation Act 1978 , which reads as follows:

"Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

"Ordinary course of post", of course, is a phraseology, the effect of which has changed over the years. No doubt in the 18 th century, "ordinary course of post", depending upon post chaises, might have involved seven days or perhaps longer. For many years in the 20 th century one anticipates that "ordinary course of post" (particularly once the new first class post delivery was introduced) would mean 24 hours. The expectation has settled down over the last 10 or 20 years as meaning two posting days from the date of posting, assuming of course that the document was posted within posting hours, and thus that its envelope was date-stamped with the relevant day. Therefore, if a letter is posted on a Monday, not being a Bank Holiday, it would be expected, in "ordinary course of post", to arrive no later than Wednesday; and if it did in fact arrive later than Wednesday, the poster would have the benefit of the "ordinary course of post" rule so as to be able to rely on arrival on the Wednesday. It is plainly a concept which is not only derived from the Interpretation Act , but from the concept of reasonable expectation. That is what a poster of a letter is entitled to expect.

In Brooke LJ's judgment, he began, at paragraph 29, by referring to the Civil Procedure Rules ("CPR"). The CPR provide in Part 6 for service, and in particular in 6.7 for what he there calls "deemed service" of documents. Rule 6.7 reads then, and still reads now, under the heading "Deemed service", as follows:

"6.7 (1) A document which is served in accordance with these rules or any relevant practice direction shall be deemed to be served on the day shown in the following table –

(Rule 2.8 excludes a Saturday, Sunday, a Bank Holiday, Christmas Day or Good Friday from calculations of periods of 5 days or less)"

and then in the schedule underneath that statement, under the two headings "Method of service" and "Deemed day of service", there is an entry for "First class post" under "Method of service"; and under "Deemed day of service" it states "The second day after it was posted". There is no reference, in that schedule, in relation to the words "The second day after it was posted", to "second business day" or "second posting day" or "second day after it was posted ( if there is a post on that day )". But it would certainly have appeared that the parenthesis in the body of Rule 6.7, which we have quoted above, referring to Rule 2.8, would have been intended, at any rate by the editor of the CPR, to govern the content of the schedule.

That is certainly how Brooke LJ understood it in paragraph 29 of his judgment. He set out in paragraph 29 that interpretation of Part 6 in these words:

"CPR Part 6 has introduced into the conduct of civil litigation in this country a clear set of principles governing the service of documents by post. Documents may be served by first class post (CPR 6.2(1)(b)). If a document is served by post, it is deemed to be served on the second day after it was posted (CPR 6.7(1)). Saturdays, Sundays, Bank Holidays, Christmas Day and Good Friday are excluded from this computation…"

He then goes on to refer to the decision of Godwin v Swindon Borough Council

[2001] 4 All ER 641

, in which a somewhat abstruse conclusion was drawn by the Court of Appeal (which is binding on proceedings in the High Court) whereby, in those circumstances, the deemed date of service overrides the actual date; and if in fact proceedings fortuitously arrive within 24 hours, as a matter of fact, the "deemed" rule overrides that, and a party cannot take advantage of their earlier actual service. As will be seen, Brooke LJ concluded that the Godwin rule does not apply in employment tribunals, where a more common sense rule, in his judgment (and we welcome that), would apply.

Having set out his understanding of the CPR, including his reference to Godwin , Brooke LJ then said, in paragraph 30, the following:

"So far as tribunals are concerned, if we are moving towards a regime in which there is a unified tribunal service along the lines recommended by Sir Andrew Leggatt in his recent report, it would appear desirable that there should be a unified regime for the service of documents of the same simplicity as that which is now available to the courts. It appears to me to be quite wrong that tribunals should be troubled with the volume of case law with which we have had to contend in this case, and I am not surprised that the Employment Tribunal got the law wrong when it first issued its summary reasons…"

That is plainly a welcome aim, and since that time Brooke LJ himself (for a time the acting Senior President of Tribunals) has had a substantial part to play in the intended unification of the Tribunal Service, under the umbrella of the Department of Constitutional Affairs, the body which now also looks after the courts. But it is of course only an aim and a hope. The Employment Appeal Tribunal, to which we have referred, in any event, has a different and, we would respectfully suggest, more sensible and easier system than either the employment tribunals or the courts.

Brooke LJ then continues as follows:

"31. Until a simpler regime is introduced, the following guidance may be helpful:

(1) Section 111(2) of the Employment Rights Act 1996 speaks of "presenting" a complaint to a tribunal. It is now well established that a complaint is "presented" when it arrives at the Central Office of Employment Tribunals or an Office of the Tribunals ("the Office").

. ..

(3) If a complainant chooses to present a complaint by sending it by post, presentation will be assumed to have been effected, unless the contrary is proved, at the time when the letter would be delivered in the ordinary course of post (see, by analogy, section 7 of the Interpretation Act 1978).

(4) If the letter is sent by first class post, it is now legitimate to adapt the approach contained in CPR 6.7 and conclude that in the ordinary course of post it will be delivered on the second day after it was posted (excluding Sundays, Bank Holidays, Christmas Day and Good Friday, being days when post is not normally delivered).

. ..

(6) If a form is date-stamped on a Monday by a Tribunal Office so as to be outside a three-month period which ends on the Saturday or Sunday, it will be open to a tribunal to find as a fact that it was posted by first-class post not later than the Thursday and arrived on the Saturday, alternatively to extend time as a matter of discretion if satisfied that the letter was posted by first class post not later than the Thursday.

(7) This regime does not allow for any unusual subjective expectation, whether based on inside knowledge of the postal system or on lay experience of what happens in practice, to the effect that a letter posted by first class post may arrive earlier than the second day (excluding Sundays etc: see (4) above) after it is posted. The "normal and expected" result of posting a letter must be objectively, not subjectively, assessed and it is that the letter will arrive at its destination in the ordinary course of post. As the present case shows, a complainant knows that he/she is taking a risk if the complaint is posted by first class post on the day before the guillotine falls, and it would be absurd to hold that it was not reasonably practicable for it to be presented in time if it arrives in the ordinary course of post on the second day after it was posted. Nothing unexpected will have occurred. The post will have taken its usual course.

32. For the avoidance of doubt, the strict litigation rule in Godwin's case does not apply in employment tribunal cases. If in such a case a complainant takes a chance and the letter containing the complaint happens to arrive at the Office on the day after it was posted and therefore within the permitted three month period, it will have been presented in time.

33. It would be helpful if the effect of this guidance could be incorporated in the booklet published by the Employment Tribunal Service to prospective applicants."

As it happens, the Employment Tribunal Service may or may not have published a booklet, but better than that was achieved, because in the new Employment Tribunal Rules , which came into effect as of October 2004, there was an amendment specifically implementing Brooke LJ's clear guidance. Rule 61 of the new Rules states as follows:

"61(2) Where a notice or document has been given or sent in accordance with paragraph (1), that notice or document shall, unless the contrary is proved, be taken to have been received by the party to whom it is addressed - (a) in the case of a notice or document given or sent by post, on the day on which the notice or document would be delivered in the ordinary course of post"

Of course the position is that that Rule, which now puts the matter beyond doubt (and of course in a way unhelpful to the interests of the Applicant in this case) was not in effect at the time which we are now considering. Therefore we are dealing with a time before the new rule came in. But it was at a time when the law, as we understand it (and it as it was understood by, as we see it, both parties before the Tribunal, and by the Tribunal itself), was in accordance with the guidance laid down by Brooke LJ in the Court of Appeal, which subsequently became enshrined in the new Rules.

What is the basis upon which the Applicant, through Mr Coldridge's new efforts on her behalf, seeks to challenge that clear position? It is by reference to the decision of the Court of Appeal in Anderton v Clywd County Council

[2002] 3 All ER 813

. That is a decision of the Court of Appeal, which in fact was given on 3 July 2002, and thus well before the hearing in the Employment Tribunal on 9 September 2003, against whose Decision Mr Coldridge now appeals. It was clearly thus open to him to have argued before the Employment Tribunal that the guidance in Consignia was overtaken by the decision of Anderton . He did not, and, in our judgment, rightly did not. But we have indicated that we have not held that against him in the sense of preventing him now from raising it before us. It simply, perhaps, only emphasises the fact that nobody thought, and rightly so in our judgment, that the decision in Anderton in any way disturbed, so far as employment tribunals are concerned, the decision in Consignia . What Anderton plainly did do was deal with what the position is under the CPR. It took a different view of the CPR and the construction of Rule 6.7 from that taken (plainly obiter because Consignia was not a CPR case) by Brooke LJ; and whereas Brooke LJ's view of Rule 6.7 and the CPR was obiter in his case, because he was dealing with the Employment Tribunal Rules , so of course it would have appeared at first glance, and we say also at last glance, that the conclusion of the Court of Appeal in Anderton , which dealt as it did with the CPR, is, at best, marginally relevant to the question as to how to deal with employment tribunal cases. We shall return to that.

The conclusion in Anderton , in the judgment given by Mummery LJ (experienced as he is in relation to employment cases, but not dealing with an employment case in that appeal) was limited to a careful construction of Rule 6.7, which we have read. The Court of Appeal in that case concluded that the parenthesis in Rule 6.7, by cross-reference to Rule 2.8, was in fact an inapt parenthesis, or at any rate an immaterial one. The cross-reference to Rule 2.8 is to a rule under the heading "Time", which deals with how to calculate any period of time for doing any act which is specified, either by the CPR, or by a Practice Direction, or by a judgment or order of the court: see Rule 2.8(1). The passage which is summarised in the parenthesis is by reference to Rule 2.8(4), which explains, for the purposes of that Rule, what happens where the period specified (either in the CPR, or the Practice Direction, or in a judgment or order of the court) for doing any act required by them is five days or less and includes a Saturday, or a Sunday or a bank holiday; and it provides that the day does not count for that purpose. It is plain that, in those circumstances, Rule 2.8, dealing as it did with how to comply with an order of the court, does not, at any rate directly, assist in relation to what happens when a document is posted. The Court of Appeal concluded that far better and simpler guidance would be obtained by ignoring that immaterial parenthesis, as it saw it, and looking only at the content of the Schedule which, as we described earlier when we referred to the Schedule, on its face simply provides for deeming service two days after it was posted, without reference to any question of "ordinary course of post", "posting days" or "business days".

That is now the law of the land so far as the CPR is concerned; namely that it will be deemed that documents will be served two days after they are posted, whether or not they arrive, but, more importantly, whether or not there is a post on that day; ie whether or not they even could arrive, they are deemed to arrive even on a day when they could not have done so. That is under the provision for deemed service. That is the rule in the CPR, just as it is the rule in the CPR, by reference to Godwin, that if a document does arrive on time, its arrival must be disregarded if it is deemed not to have arrived until the following day. That latter unusual provision is one which Brooke LJ in terms said was inapt to the Employment Appeal Tribunal.

We do not know what Brooke LJ might have thought if he had appreciated that he was incorrectly interpreting Rule 6.7 when he used the CPR as part of the foundation for his guidance to the employment tribunals. What is utterly clear to us, however, is that, at best, it was only part of the building blocks for his very clear guidance which binds this Appeal Tribunal, and by which we are pleased to be bound (subject always, of course, to the whole system being altered to come in line with our system at the Employment Appeal Tribunal, which we would recommend):

1. It accords with the Interpretation Act 1978 .

2. It is the guidance by which all employment tribunals have operated and which now is enshrined in the new Rules, so that even if, for a short period, including the period when this case took place, the position might have been different, it will not be different for the future.

3. Most importantly, it accords entirely with the underlying concept of Brooke LJ's guidance, to which he refers, being one of expectation . A party posting a letter can expect that it will arrive, in the ordinary course of post, in two days; and that expectation will be rewarded if, through no fault of his, there is delay in the post. A party posting a letter on a Friday cannot expect that it will arrive on a Sunday, because he knows that there is no post on a Sunday.

In those circumstances, we follow, and are pleased to follow, the guidance of the Court of Appeal in Consignia , which we are satisfied is both binding and right, always subject, as we have indicated, to our hope that at some stage soon, in order to follow the expressed hope of Brooke LJ in paragraph 30, all tribunals come into line together and that the system enshrined in the EAT Rules would then be introduced instead. Unless and until that occurs, however, we are satisfied that the principles in Consignia , adopted in this case by the Employment Tribunal, are correct, and that this appeal must consequently fail.

We turn, then, to the disclosure issue, knowing that in the light of our decision on the jurisdiction issue, it is in fact academic or moot. It arises in this way. There was to be a preliminary issue on 9 September 2003, not only in respect of jurisdiction, as in the event occurred, but also on the issue as to whether the Applicant was disabled. If she was not disabled when she was dismissed, dismissal being the alleged unfavourable treatment relied upon, then of course she could have no claim under the Disability Discrimination Act 1995 in any event.

With a view to resolving that issue, an Order was made on 21 October 2002, at paragraphs 3 and 4, by the Southampton Employment Tribunal, as follows:

"3. The Respondent shall inform the Applicant and the Tribunal, by 18 November 2002, whether disability remains an issue between the parties…

4. In the event of disability remaining an issue, there shall be a joint instruction by the parties of an expert with the requisite skills to provide assistance to the Tribunal on the issue of disability. The parties shall seek to reach agreement on a joint instruction by 2 December 2002. In default of agreement, the matter shall be listed for a further Telephone Directions Hearing…"

There was no agreement on the joint instruction of an expert, and by an Order dated 11 March 2003 by the Employment Tribunal, it was provided, at paragraph 1:

"1. Since the Respondent does not concede that the Applicant is disabled… there shall be a Preliminary Hearing…

2. The Respondent is at liberty to arrange for a medical examination of the Applicant and the Applicant undertakes to submit to such an examination.

…

7. Depending on the contents of the medical reports, the experts may deem it appropriate to seek to agree the points that are agreed and the points that are in dispute for the Preliminary Hearing."

It was, at that stage, plainly appreciated that the original intention of a joint expert was now gone, and that there would now be one expert each, that they would provide to each of their respective clients separate reports, and that prior to the preliminary hearing, as is common, there should be a meeting of the two experts (either in person or by the telephone) to attempt to resolve points of issue between them.

The expert whom the Respondents chose to instruct was a Dr Davies, and, pursuant to the direction in paragraph 2 of the Order of 11 March 2003, the Applicant submitted to such examination. It appears that a letter of instruction was sent to the expert in somewhat similar terms (it may be in identical terms) to the form of a letter of which we have a draft in our papers, which was going to be the basis for the joint instruction. Looking at those terms, and assuming that they are the same, the issues are that which one would expect for the purpose of the preliminary issue on disability; namely whether, as at 31 March 2002, the Applicant had a physical or mental impairment, definitions being given and clarifications being set out, and whether the necessary requirement under the Disability Discrimination Act , as it then stood, for the clinically well recognised nature of any illness and the effect on the Applicant and its likely continuation, were made out.

In the event, the Respondent, having received the report from its expert (and no doubt taken legal advice), decided not to pursue its resistance to the case that the Applicant was disabled, and conceded the issue of disability, so that it no longer remained in dispute between the parties, and no longer remained the subject of the proposed hearing in September 2003, which proceeded on the limitation period alone.

The Applicant, through Mr Coldridge, sought, notwithstanding that fact, disclosure of the report that was prepared by Dr Davies. In a Decision on 13 August 2003, to which we have referred, Mr Cowling ruled, in paragraph 4 of his Order, as follows:

"An application by the Applicant for disclosure by the Respondent of a medical report prepared by their medical expert, Dr [Davies] is refused. The medical report was prepared for the purposes of a hearing to determine whether the Applicant had a disability within the meaning of Section 1 of the Disability Discrimination Act 1995. Since the Respondent has conceded that the Applicant has a disability, it will not be relied upon by the Respondent and is not relevant. The Applicant is, of course, at liberty to call medical evidence in support of her claims, if it is considered relevant."

In the Reasons, which were delivered in support of that Decision, Mr Cowling said the following at paragraph 23:

"Mr Coldridge has applied for the second time for and Order for disclosure of a medical report prepared by the Respondent's medical expert, Dr Davies. The grounds for the application are because Mr Coldridge believes that it will make reference to his mother being forgetful and he considers that this could be an issue for determination by the Tribunal at the full hearing. The application was opposed by Mr Palmer. He explained that [Dr ] Davies'

report was prepared solely for the purposes of a hearing to determine whether the Applicant had a disability. Since that point had been conceded by the Respondent in a letter to the Employment Tribunal dated 25 April 2003, it was no longer an issue and the Respondent would not be relying on the medical report prepared by Dr Davies. It is no longer relevant and need not be disclosed. The application by the Applicant for an Order for disclosure is refused."

At the preliminary hearing before the Employment Appeal Tribunal, presided over by Judge Reid, to which we referred, the Appeal Tribunal permitted the appeal to go forward to a full hearing, to accompany the limitation issue (which we have now decided), on the basis of an argument, apparently then put forward by Mr Coldridge for the first time, namely that "that document should be disclosed, if only because it would go to quantum in relation to the amount of any award that might be made were the Claimant to succeed in her Disability Discrimination Act claim." It is that matter which has now come before us today, and, while accepting that he relied before the Chairman on the 'forgetfulness' grounds, to which we have referred, he no longer supports that ground, and does indeed put his case forward on the basis to which we have referred, namely that it will or may in general terms be relevant to issues of quantum at a full hearing.

In the course of argument before us, by reference to a very short sentence in the skeleton argument recently served for the purposes of this appeal, Mr Coldridge sought to suggest that it might be, or might have been, arguable that in some way there was implied into the Applicant's agreement to submit to a medical examination, an entitlement to receive a copy of the report which ensued from that examination. He very properly accepted that, as this had not been argued below, is even now hardly canvassed and is in no way ready to be argued, that he could not and did not pursue it before us. Plainly it would not need to be examined whether that could be said to be the basis on which, for probably 100 years, medical examinations of litigants have taken place, for example in personal injury claims; in the absence, of course, of an express proviso in the consent, which there was not in this case. But the matter does not arise for argument and we do not consider the point, on that basis.

The way in which Mr Coldridge put his argument was by reference to analogy with the CPR; and he relies upon dicta , for example in such cases as Maresca v Motor Insurance Repair Research Centre

[2005] ICR 197

per Rimer J, to the fact that, where appropriate, the Employment Appeal Tribunal will look, for guidance, to the principles of the CPR. He relies then, on that basis, on the words of rule 31.6 of the CPR, which says:

"31.6 Standard disclosure requires a party to disclose only – (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case;

(ii) adversely affect another party's case; or

(iii) support another party's case;… "

He submits that this medical report obtained by the Respondent from Dr Davies falls within subparagraph (a), because it was a document on which the Respondent relied, if only to abandon its opposition to the claim by the Applicant that she was, at the time of the dismissal, disabled.

He submits that, in addition, there is or may be some relevance to the report to quantum. The basis on which he makes this submission was wholly unclear at the outset of his submission. But after a degree of intervention from the bench it may, we think, be put in this way, by reference to the terms of reference in the draft joint instruction letter, which we have mentioned, which, in general terms, Miss Warrender has accepted was sent to the single expert, as Dr Davies subsequently became. Even though the issue which was to be decided at the preliminary hearing, until resistance to it was abandoned, was whether, at the date of the unfavourable treatment (namely the dismissal) the Applicant was disabled (in her case, whether there was a mental impairment), it might be that when the expert considered, as would be necessary, the nature of that mental impairment, and, as at March 2003, looked back to the date of the dismissal in March 2002 so as to consider the likely ongoing effect of that disability, in order to appreciate whether it could be said to have been substantial in the period leading up to March 2002, something might have been said by him about the condition of the Applicant, as she appeared before him in March 2003.

It is clear to us that there is an element of Morton's fork in the argument that Mr Coldridge is, in those circumstances, putting forward. It would be in the Applicant's interest, particularly now that disability has been admitted by the Respondent, to play down the degree of disability as at March 2002, so that if there is any continuing problem now with the Applicant, or at any rate if there was any in March 2003 when Dr Davies saw her, it could be argued, if that is what is proposed to be done, that her state as seen in March 2003 did not result from the disability as it stood in March 2002, but in some way resulted from exacerbation of it, or possibly even the creation of a new disorder, arising out of distress resulting from the trauma of the dismissal, if such is to be alleged.

It appears to us wholly unlikely that Dr Davies, particularly as it was not expressly within his terms of reference, would have addressed the question as to whether there was any exacerbation of the pre-existing disability by virtue of the dismissal. But Mr Coldridge submits that that is a possibility.

It is with a view to that, and, as he frankly told us, to the possibility to obtaining the report upon which it might be that he could then form or mount a case in the High Court or the County Court for breach of contract and/or personal injuries relating to work-induced stress prior to the dismissal, that he seeks to pursue his claim for disclosure of this report. Plainly so far as this latter ambition is concerned, that could not be a basis for disclosure in these proceedings. But it is the possibility of the obtaining of information to which he refers that we turn, so far as considering the legitimacy of his application within these proceedings.

It has to be said that there is, of course (or would have been had the action continued, which it is not now going to do, in the light of our decision on limitation), an option open to the Applicant in such a case as this to seek a witness summons against Dr Davies, because there is no property in a witness; and it is always open for one party to seek to compel attendance at hearing of an expert who was previously, but no longer is, instructed by the other side. If that were open to the Applicant, and such a course taken by her if these proceedings had continued, then, by the very act of witness-summonsing the doctor, the report would come with the doctor to the hearing. However, of course, a witness summons would only be granted if the evidence of the doctor were relevant. Underlying the whole of this question appears to us to be that which, very percipiently, the Chairman himself stated when dismissing this application on 13 August 2003, nearly two years ago, namely:

"The Applicant is, of course, at liberty to call medical evidence in support of her claims, if it is considered relevant."

Why it is so significant to call Dr Davies (who examined her once in March 2003, and who obviously formed the view that she had been disabled at the time of dismissal in March 2002) as opposed to instructing an expert of her own is not perhaps the point, but is a background to the question we have to decide.

We are entirely satisfied that this report is not disclosable:

1. The report of Dr Davies was, in fact, and is, a witness statement from an expert witness, which was obtained by the Respondent, and was intended to have been served, and would have been, but for the fact that the hearing, in relation to which it was to be served, had being aborted by the issue been conceded. In our judgment it stands in no different category to any other witness statement which was obtained for the purpose of a hearing and never in fact served. It is not open, in our judgment, to the opposing party to obtain service of an unserved witness statement. Such a witness statement, such an expert's report, is not, in our judgment, a document, either falling within rule 31.6 of the CPR or within the rules of disclosure in the employment tribunal.

2. Quite apart from whether it is a document, it is not a document on which the Respondent relies. The Respondent relie d (in the past) on the document simply for the purposes of abandoning a case, just as it might have done if, for example, it had taken witness statements from eye witnesses to an accident, whose evidence turned out to be unhelpful such that in those circumstances a case was abandoned, but some other case was pursued. The position is that the words in the Rule on which he relies are in the present tense; and if in the past, in relation to an issue no longer live, a party relied on the document but no longer does, in our judgment it does not fall within 31.6(a).

3. In any event, even if technically such report might fall within 31.6(a) on either of the two bases which we have addressed, it would only be disclosable if it was relevant. In our judgment it is not relevant to any continuing issue in the case. The fact that there might possibly be some peripheral discussion as to what the Applicant's state of health was in March 2003, and that that might possibly be relevant to an issue, not yet raised in any event, that in some way previously existing disability had been exacerbated by the dismissal, is, in our judgment, at best, the basis for a fishing expedition; and at this stage it is clear to us that no sensibly proportionate approach to the question of relevance could lead to its being disclosed, even if it were otherwise disclosable.

In those circumstances we are satisfied that this appeal must fail and, as we have indicated, in any event, it must fail also by virtue of the failure of the jurisdiction appeal. In those circumstances these appeals are both dismissed.