(1) DALLAS MCMILLAN (2) A v (1) B (2) MS F DAVIDSON [2008] UKEAT 0006_07_0801

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0006_07_0801Case No Appeal No. UKEAT/0006/07Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
(1) DALLAS MCMILLAN (2) AAPPELLANTS(1) B (2) MS F DAVIDSONRESPONDENTS
Before
Lady Smith Miss J Gaskell Miss A HibberdDate 8 January 2008
[1]APPEARANCES For the Appellants MR S MILLER (Solicitor) Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB For the Second Respondent MR C BOURNE (of Counsel) Instructed by: Messrs Thompsons Solicitors Berkeley House 285 Bath Street Glasgow G2 4HQ For the First Respondent No appearance or representation by or on behalf of the First Respondent. SUMMARY Practice and Procedure: Restricted reporting order Freelance journalist sought revocation of a restricted reporting order where Claimant withdrew claim in the course of hearing. The Tribunal found that she had a locus to be heard, that they had jurisdiction to entertain the application notwithstanding the withdrawal of the claim and that it was appropriate to revoke the order. On appeal, the Employment Tribunal quashed the Tribunal's decision. The journalist had no right to be heard before the Tribunal. Further, the claim having been withdrawn against the only Respondents and there being no other parties to the case, the Tribunal was functus ; it had had no jurisdiction to pronounce an order revoking the restricted reporting order. THE HONOURABLE LADY SMITH Background The Claimant claimed that she had been discriminated against by the Respondents contrary to the Sex Discrimination Act 1975. It was plain from her form ET1 that allegations of sexual misconduct were involved and the Respondents applied both in writing and at the start of the evidential hearing on 8 May 2006, for a restricted reporting order ("RRO"). The application was granted.[2]The hearing proceeded on 8, 9, 10 May and 22 and 23 June 2006. On 23 June, at about midday, the Claimant withdrew her complaint. The Respondents undertook, at the same time, to make no application for costs.[3]Fiona Davidson is a freelance journalist. She has many years experience of reporting proceedings in Employment Tribunals and is well respected by practitioners. She was present in the tribunal hearing room on 23 June. After the Claimant's complaint had been withdrawn, she passed a note to the Chairman and members who were, by then, in chambers, which was in the following terms:
"23 rd June 2006 Can I ask that in view of the withdrawal of the claim number S/106284/2005 the restricted reporting order be revoked or a written judgment issued on the proceedings. Fiona Davidson (Sgd) Freelance Journalist."
[4]The Tribunal made no ruling at that time. They issued a note dated 3 July 2005, in paragraph 7 of which there is the following explanation:
"….We have decided that, if Ms Davidson wishes to proceed with the application, she must make a formal application which should be intimated to both parties in order to allow them time to consider their position and intimate whether they wish to oppose it. If any such application is opposed, a date for hearing will be fixed. Any application by Ms Davidson must be made within 14 days of the date upon which this note is served on her."
[5]In the same note, they refused the request for a written judgment, explaining, at paragraph 8:
"In the first place, we have not heard all the evidence, and, in the second, whatever right the press may have to intervene in connection with questions surrounding the issue of restricted reporting orders, we are satisfied that they have no right to request a written judgment. In the third place, there is nothing to judge."
[6]Ms Davidson submitted a written application by letter dated 12 July 2006.[7]The arguments advanced in that letter included those which formed the submissions made on her behalf in the course of the appeal, to which we will return later in this judgment. She did not make any application to be sisted as a party to the action.[8]Ms Davidson's application was opposed on behalf of the Respondents and a hearing was fixed for 17 November 2006. Following that hearing, the Tribunal issued a judgment registered on 13 December 2006 in the following terms:
"It is the judgment of the Tribunal that the restricted reporting order pronounced in this case on 8 May 2006 remain in force for 28 days after the date of this judgment but that it then be revoked."
[9]The delay before revocation was so as to enable the Respondents to institute an appeal, if so advised. That is what they have done.[10]In the instance to that judgment, the Tribunal refer to Ms Davidson as "Interested Party". That could be misleading given that she did not become a party at any time and we propose simply to refer to her by name in this judgment. The Tribunal's Judgment[11]The Tribunal first considered whether Ms Davidson had any locus to be heard and decided that she did. In so deciding, they relied on what was said by Mr Justice Keene in Associated Newspapers Ltd v London (North) Industrial Tribunal [1998] IRLR 569, at paragraph 6:
"There is a power possessed by an industrial tribunal to revoke an RRO at any time if it thinks fit: see the 1993 Regulations, rule 14(4). It would be open to a newspaper or other media organisation to apply to be joined as a party to the proceedings before the industrial tribunal for the purpose of making an application for the revocation of an RRO, and to make such an application."
[12]Further, they considered the terms of rule 25(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 ("the 2004 Rules") which provides: "Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn (subject to paragraph (4)), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs." and decided it was possible to: "13. …..interpret Rule 25(3) in a manner that would allow us to revoke the RRO." notwithstanding an argument presented by the Respondents to the effect that the claim having been withdrawn, they were functus and could not issue any further orders in the case. They did so on the basis that they required to view the language of the rule as "elastic" so as to enable them to do what was required by the European Convention on Human Rights ("the convention"). They appear to have taken the view that there was a conflict between rule 25 and rule 50 and that they were required, by section 3(1) of the Human Rights Act 1998 , to resolve that conflict in favour of the press.[13]The Tribunal's reasoning on that matter appears to proceed as follows: firstly, rule 25(3) only brings proceedings to an end against "relevant respondents", Ms Davidson was a person other than a relevant respondent, she was a person entitled to intervene and so the proceedings involving her were not at an end. Secondly, the Tribunal has a power under rule 50(10) to revoke an RRO "at any time". If there was a conflict as between rule 25(3) and that rule, it should be resolved in favour of compliance with "treaty obligations" so as to find that the tribunal retained the power of revocation. Section 3(1) of the Human Rights Act 1998 applied and it was reasonable or reasonably possible so to interpret the rules. Thirdly, they decided that the word "proceeding" in rule 25(3) referred only to the case between the Claimant and the Respondents, the RRO was not part of that action but "stands outside" it, so the application for revocation was not part of the proceedings contemplated by rule 25(3).[14]Then, turning to the merits of the application, the Tribunal determined that the RRO should be revoked. Their reasons for doing so are in paragraph 22:
"We are satisfied that it is appropriate to revoke the restricted reporting order. We start from the basic premise that anything said or done in a Scottish court or Tribunal should be capable of being reported by the press and that any exception to the foregoing rule has to be for a clearly defined purpose and in exceptional circumstances. In our opinion, there is nothing exceptional or special about the circumstances of this case. The fact that one or more of the parties may find the content of any report embarrassing though unfortunate, does not render the case exceptional or special and we are satisfied that a restricted reporting order should be lifted."
Relevant Law[15]A Tribunal may pronounce an RRO in any case which involves allegations of sexual misconduct (Rule 50(1)(a)). The rules relating to the making of RROs were made in furtherance of the power conferred by section 11(1) of the Employment Tribunals Act 1996 ("the 1996 Act") which provides:
"(b) for cases involving allegations of sexual misconduct, enabling an industrial tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect ( if not revoked earlier) until the promulgation of the decision of the tribunal." "
Restricted reporting order" is defined in section 11(6) as being one having the effect of:
" …..prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain." and "identifying matter" in relation to a person whose identity is the subject of an RRO is defined in same subsection as "…..any matter likely to lead members of the public to identify him as a person affected by, or as the person making the allegation……."
[16]The protective effect of an RRO can thus be seen to extend to those who make allegations of sexual misconduct, those against whom such allegations are made and any other person who, as a matter of fact, is liable to be affected by the allegations.[17]Further, as was noted by Keene J in the Associated Newspapers case , the legislation was implemented against a background of concern as reported in the relevant House of Lords Hansard at col.822: "In conclusion, I hope that all noble Lords will agree with me that the new clauses offer valuable protection to the victims of and witnesses to sexual harassment and indeed to anyone who is falsely accused of such harassment. The Government strongly condemn sexual harassment and hope that these new powers will make the process of bringing an industrial tribunal complaint involving such allegations less distressing, thereby encouraging those who would previously have been deterred from bringing such cases to do so." (per Viscount Ullswater).[18]Keene J considered that those statements show that: " …the purpose of these provisions was to enable complaints of sexual harassment at work to be brought and witnesses to give evidence about incidents of sexual harassment without being deterred by fear of intimate sexual details being publicised." (paragraph 36)[19]Whilst it might be thought that that observation overlooks the interests of persons against whom such allegations are made, it seems evident from his reference to alleged perpetrators later in that paragraph that he did not intend to suggest that Parliament had only the interests of those making such allegations and their witnesses, in mind. It would, plainly, be not only the claimant in such a case who would have an interest in the protective effect of the imposition of an RRO. It is not difficult to see that it may be considered appropriate to protect the interests of any or all of those who may be affected by the allegation whether by giving evidence concerning it, in support of or in refutation of it, or being the subject of such evidence or otherwise.[20]As to the extent of the protection, the 2004 Rules allow for the imposition of temporary RRO's and full RRO's. Temporary RRO's[21]A Tribunal can make a temporary RRO of its own initiative and without a hearing (rule 50(3)). Such an order lapses after 14 days unless a party has applied either for its revocation or for a full RRO (rule 50(4) and (5)). If such an application has been made, the temporary RRO subsists until the hearing at which the application is considered (50(5)). No temporary RRO was made in the present case but we mention these provisions as they were referred to in the course of argument. Full RRO's[22]A full RRO can be applied for by a party or issued by the Tribunal of its own initiative (rule 50(2)). A full RRO cannot be made unless the Tribunal has given all parties the opportunity to present oral argument (rule 50(6)). Further, the Tribunal must allow "any person" to apply to be allowed to make representations before a full RRO is made. If the Tribunal considers "that the applicant has a legitimate interest in whether or not the order is made" then it must allow such representations to be made before any full RRO is issued (rule 50(7)):
"Any person may make an application to the chairman or tribunal to have a right to make representations before a full restricted reporting order is made. The chairman or tribunal shall allow such representations to be made where he or it considers that the applicant has a legitimate interest in whether or not the order is made."
[23]A member of the press can apply under this sub-paragraph to be allowed to make such representations. It should be noted that the rule does not confer an unfettered right to make representations. There are two stages. It is only if the Tribunal is satisfied that the applicant has a legitimate interest in making them that the applicant will be allowed to proceed to the second stage and present an argument in respect of the proposal that a full RRO be imposed. Further, these provisions only provide for a "person" who is not a party to make such an application prior to and concerning the making of a full RRO. There is no express provision whereby such a "person" can apply for the revocation of a full RRO once it has been made. Nor do these provisions provide for such a person thereby to be sisted as a party to the action.[24]As to the cessation of a full RRO, the rule provides for only two ways in which it can be brought to an end. Firstly, under rule 50 (10):
"A tribunal or chairman may revoke a restricted reporting order at any time."
[25]Secondly, under rule 50(8)(b):
"a full order shall remain in force until both liability and remedy have been determined in the proceedings unless it is revoked earlier;"
[26]On what would appear to be an "avoidance of doubt" basis, rule 50(11) provides: "For the purposes of this rule liability and remedy are determined in the proceedings on the date recorded as being the date on which the judgment disposing of the claim was sent to the parties …….." .[27]Separately, this being a case in which the claimant's case was withdrawn part way through the hearing, rule 25 applies. The relevant provisions are:
"25(1) A claimant may withdraw all or part of his claim at any time – this may be done either orally or in writing in accordance with paragraph (2). … (3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notifications) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4) proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs. (4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed … If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant ……"
[28]Accordingly, if a claimant withdraws her whole case against the sole respondent in a case where there are no other parties, the whole proceedings are at an end. As was commented by Rimer J, in Khan v Heywood & Middleton Primary Care Trust [2006] IRLR 34 5, they are not simply "asleep" waiting to be woken up (see: paragraph 17 of his judgment). The reservation in subparagraph (4) is, as was discussed by Rimer J in the same paragraph: "…directed at no more than providing that the "end" to which paragraph (3) brings the withdrawn proceedings is not so terminal as to preclude the making by the respondent of a dismissal application;" and, similarly, it seems clear that the reservation at the end of subparagraph (3) is directed at no more than providing that the "end" to which the proceedings are brought on withdrawal is not so terminal as to preclude the tribunal hearing and determining any applications for costs, preparation time or wasted costs.[29]On a straightforward interpretation of these provisions, the position appears to be that if the claimant withdraws her claim against one or more respondents but not against all respondents then the proceedings against the respondents who have the benefit of such withdrawals are at an end in the same way and subject to the same reservations. If there are any respondents against whom the claimant's claim is not withdrawn then the proceedings against them will not be at an end. Further, if there are any parties other than the claimants or respondents (such as a party who has been sisted because the chairman considers he has an interest in the outcome of the proceedings: see rule 10, discussed below), the proceedings will subsist in respect of that party's interest.[30]Reference should also be made to the case management powers conferred by rule 10 of the 2004 Rules. Under subparagraph (1) of that rule, a chairman may, either on the application of a party or of his own initiative make any order which appears to him to be appropriate, in chambers or at a hearing. There are suggested examples of case management order which may be pronounced, in subparagraph (2) and they include:
"(k) that any person who the chairman or tribunal considers may be liable for the remedy claimed should be made a respondent in the proceedings; … (r) that any person who the chairman or tribunal considers has an interest in the outcome of the proceedings may be joined as a party to the proceedings;"
[31]It would, accordingly, be open to a chairman to allow a member of the press to be sisted as a party if he considers that person to have an appropriate interest in the outcome of the proceedings. Once sisted, the tribunal would have available to it as regards that party all the measures of control provided by the 2004 Rules in respect of parties generally, including the ability to make an award of expenses if appropriate. Further, once sisted as a party, such a person would have available to it all the rights conferred on parties by the rules including the right to apply under rule 11(1) for an order to be issued or revoked. That would enable an application to be made for the Tribunal to exercise its power to revoke an RRO.[32]Rule 10 confers powers that are wider than those that existed under the Industrial Tribunal (Constitution and Rules of Procedure)(Scotland) Regulations 1993 ("the 1993 Rules"). So far as the joining of other parties was concerned, rule 17 was the relevant rule and the tribunal's powers thereunder were limited:
"17(1) A tribunal may at any time, on the application of any person made by notice to the Secretary or of its motion, direct any person against whom any relief is sought to be sisted as a party, and give such consequential directions as it considers necessary."
[33]We note that it would appear that following the decision in the Associated Newspapers case, the view was taken that the press could apply to be sisted as parties to the proceedings in respect of the imposition or revocation of RRO's. That is because of the obiter remarks of Keene J, at paragraph 6 which were relied on by the Tribunal in this case and which we have quoted above.[34]With the greatest of respect, we are not at all clear as to the authority on which the learned judge considered a tribunal could have allowed a member of the press to be joined as a party for the purpose of making the applications he envisaged. Not being persons against whom relief would be sought by other parties, they would not have come within the provisions of rule 17 of the 1993 Rules and we are not aware of any other rule subsisting at that time which would have permitted such a course of action. Happily though, that need not now be a matter of concern since it seems plain, as we have observed, that the wide case management powers conferred by rule 10 would allow a member of the press to be sisted as a party in appropriate circumstances.[35]Two further provisions in the 2004 Rules are relevant. Firstly, those in rule 11(1) to which we have referred. They provide:
"At any stage of the proceedings a party may apply for an order to be issued, varied or revoked……" and those in rule 28 to which Mr Bourne referred. They empower chairmen or tribunals to issue: "(a) a 'judgment' which is a final determination of the proceedings or of a particular issue in those proceedings ; it may include an award of compensation, a declaration or recommendation and it may also include orders for costs, preparation time or wasted costs."
The Appeal[36]For the Appellants, Mr Miller advanced two separate and clear arguments. Firstly, he submitted that Ms Davidson had no right to be heard by the Tribunal on 17 November 2006. There was no provision in the 2004 Rules for anyone other than a party to intervene in respect of an RRO. Those rules only went as far as affording a right of audience to a person who sought to be allowed to make representations at the time that a tribunal was considering whether to make a full RRO. Not even a right of audience for that purpose was afforded in respect of an order for revocation. If the intention was to confer such a right then it would have been easy to spell it out in the rules in the same way and the fact that that was not done indicated that the right did not exist.[37]In respect that the Tribunal had relied on Associated Newspapers as authority for the proposition that a member of the press had a locus to apply for revocation of an RRO, he submitted that they had erred in the "gloss" they had put on what was said. At paragraph 9 of the judgment, the Tribunal had approached matters on the basis that it was authority for the press having a "right to be heard" but that overlooked the fact that what was actually said was that they would be able to apply to be joined as a party. That meant that they would have been required to show interest and persuade the Tribunal to sist them before any argument in support of revocation could have been made. In any event, matters had moved on and the task now was to interpret and apply the 2004 Rules. It was plain, when that was done, that no-one other than a party had the right to apply for revocation of an RRO. Ms Davidson could have sought to be sisted as a party but at no time had she done so. The Tribunal should not, accordingly, have allowed her to be heard.[38]Secondly, in the event that we were not persuaded by Mr Miller's first argument, he submitted that, in any event, the Tribunal had no jurisdiction to entertain the application for revocation. That was because the proceedings had been brought to an end when the claim was withdrawn: rule 25(3). There were no other respondents and no other parties. No applications for costs, preparation time or wasted costs had been made and no application for dismissal of the proceedings had been made. The file was closed. The result was that the case was in a permanent state of withdrawal, no judgment had been or would be issued and the RRO was perpetual. He added that since there had been no order dismissing the proceedings, the possibility of the Claimant raising further tribunal proceedings or a civil action in respect of the same subject matter was not ruled out.[39]For Ms Davidson, the essence of Mr Bourne's submissions was that the purpose of the rules was to secure the interests of justice. The purpose of an RRO was to support the proper administration of justice and once the administration of justice had taken its course, the RRO should lapse. In support of that submission reference was made to Leicester University v A [1999] IRLR 352 at paragraph 51, where Judge Peter Clark commented that the purpose of an RRO is; "to protect anonymity whilst evidence is being heard".[40]He said that despite the absence of an express provision allowing a person such as Ms Davidson to make an application for revocation there must be some mechanism to allow interested parties to assert that an RRO is no longer required for the proper administration of justice and should be revoked. Whilst he recognised that there was a risk of an erroneous impression being given by the reporting of allegations spoken to in evidence there was no judgment in respect of those allegations, it should, he said, be remembered that the press have a duty to report fairly and accurately. Here the fact of the Claimant's withdrawal of her claim and the absence of any application for costs by the Respondents would also be available to be reported.[41]Regarding the argument that Ms Davidson should have applied to be sisted as a party, Mr Bourne referred to paragraph 6 of Keene J's judgment in the Associated Newspapers case and pointed out that he did not say that being joined as a party was the only way that a member of the press could be heard. Here, Ms Davidson had done as the Tribunal invited her to do and even if she had been sisted as a party she would not have become a respondent. He referred to the case of Scottish Daily Record & Sunday Mail Ltd v McAvoy and ors UKEATS/1271/01 where Lord Johnston had commented that it was "more appropriate" where the press claimed an interest in Employment Tribunal proceedings for them to heard under the "general power to regulate procedure" rather than to allow them to be sisted as a party. The rules did not exclude the Tribunal's ability to hear Ms Davidson. Rule 50(10) did not even provide for parties to apply for revocation.[42]When questioned as to why, if his approach was correct, the rules provided for the subsistence of a full RRO until judgment was delivered to parties, Mr Bourne responded that that would appear to be because it would not be until that stage that conflicts in the evidence will have been resolved and findings in fact made. Justice will, by then, he submitted have been done between the parties. We had difficulty in seeing how that response supported his argument. It seemed, rather, to indicate that, as a generality, an RRO should not be revoked prior to judgment being issued.[43]Mr Bourne also referred to the provisions in rule 50(4) and (5) regarding the extension and lapse of temporary RRO's in, it seemed, an effort to suggest that 'revocation' was not the correct characterisation of the termination of either type of RRO but it was difficult to see how that helped his argument either, given the use of the term revoke in rule 50(10) and the clear intention of the rule that the only way for a full RRO to be brought to an end other than by the issuing of a determination on liability and remedy is by the issuing of an order revoking it.[44]Mr Bourne sought to support the Tribunal's reasoning to the effect that they were not functus . Whilst the proceedings in relation to the Respondents were brought to an end, that was all that rule 25(3) brought about. Proceedings against others were not brought to an end. The rule itself contemplated that there may be other parties. Further, rule 28 showed that even after liability and remedy was determined, a Tribunal could make a costs order so the determination of liability and remedy may not be the final determination in the case. He referred to the case of Verdin v Harrods Ltd [2006] IRLR 339 as showing that there could be circumstances in which withdrawal of a claim did not dispose of every issue between parties. He also referred to the case of Khan and said that if the Respondents were correct, the response of the Tribunal in that case (where a claimant made an application for the setting aside of his notice of withdrawal) should have been that they had no jurisdiction to hear it. He did recognise, however, that the point was not taken.[45]Finally, whilst Ms Davidson had reported the proceedings at the time of the hearing (subject to the restrictions imposed by the RRO), the ability of the press to report identities was important. It was in the public interest to know, for instance, if allegations of the same type were repeatedly being made in respect of the same person. It was not, however, suggested that such concerns arose in the present case. On the contrary, no submission was made that there was anything at all about the present case that made the reporting of the identities of the individuals involved a matter of legitimate public interest or concern. Discussion and Decision[46]We should record at the outset that, at the time of the hearing, we pronounced an RRO regarding the second named Appellant and the Claimant in respect of these proceedings, under rule 23(3) of the EAT Rules 1993. That order will, in the absence of any earlier revocation, cease to have effect on the promulgation of this decision.[47]We are satisfied that the Tribunal erred in law and that this appeal should be allowed. Before turning to the specific issues raised, we should make one or two general comments. Just like Employment Tribunals, RRO's are creatures of statute. Their creation and their termination are determined and regulated by the rules promulgated under the 1996 Act. To find out whether and how an RRO can be made and whether and how it comes to an end, one must look at those rules and only those rules. To find out the nature and extent of the powers of an Employment Tribunal, one must, similarly, look at those rules and only those rules. Unlike the court, an Employment Tribunal has no inherent jurisdiction. It is not a question of considering what would be reasonable or appropriate in the circumstances of a particular case or making provision for any gap or lacuna in the primary or secondary legislation.[48]The current rules, so far as RROs in the Employment Tribunal context are concerned are, of course, the 2004 Rules. Further, whilst an RRO has the effect of limiting and controlling the actions of persons other than the claimant and respondent in a claim before an Employment Tribunal, including the press, the 2004 Rules do not thereby make such persons parties to the case. Nor do they expressly confer any right on them beyond a right of audience so as to enable them to apply to be allowed to make representations before a full RRO is made. It is against the background referred to in this and the previous paragraph that the issues that arise in the present case require to be considered.[49]Turning then to the first issue, we agree with Mr Miller. The Tribunal should have recognised that Ms Davidson had no right to be heard. They appear to have persuaded themselves that she did by relying on what was said by Keene J in Associated Newspapers and the fact that, as a matter of practice, prior to the coming into force of the 2004 Rules, the press was routinely heard. There are though, as we have observed, problems with Keene J's observations and whatever the position was prior to the introduction of the 2004 Rules the task for the Tribunal was to apply those Rules. When that is done we are satisfied that it is clear that the only persons who can apply for the revocation of a full RRO are those who are parties to the case: rule 11(1) and rule 50(10). The absence of any provision mirroring that in rule 50(7) emphasises that that is so. If it had been intended that a person who was not a party be allowed to make such an application (or at least, in conformity with the position prior to the making of an RRO: rule 50(7), to have the right to apply to be allowed to make representations thereanent) there is no reason why the rules should not have included express provision to that effect. The fact that they do not do so shows that the intention was that persons other than parties would not have any such right. There need be no concern that persons who have a legitimate interest in the outcome of the case are thereby shut out. As we have observed, the Tribunal has the power to sist such a person as a party. Having done so, it would have the benefit of being able to subject them to appropriate controls and it would also allow other parties to seek any appropriate order against them, such as an order for expenses. We do not, we should add, agree with the obiter view expressed by Lord Johnston in the Scottish Daily Record case referred to by Mr Bourne. That case was, in any event determined prior to the introduction of the 2004 Rules and we are not clear what general powers of regulation he had in mind as he does not refer to the rules then in force; whilst it was, perhaps, the power to give directions on any matter that was contained in rule 16 of the previous rules, the problem is that that was a power which was only exercisable on the application of a party.[50]That is sufficient to dispose of the appeal but we should, of course, also deal with the second issue. Again, its resolution turns on the interpretation and application of the 2004 Rules. Again, we agree with Mr Miller. The effect of rule 25(3) was that once the claim was withdrawn, there were no proceedings outstanding at all. Nothing subsisted thereafter. The fact that the two exceptions at the end of rule 25(3) and in rule 25(4) enable the proceedings to be revived for the specific purposes there set out, does not assist the argument for Ms Davidson. Nor does the fact that rule 28 envisages a situation whereby issues such as expenses may not be determined in a "judgment", as referred to in that rule, assist. Nor does the fact that a full RRO ceases to be in force once a judgment determining liability and remedy (which accordingly may leave outstanding an issue as to expenses) is sent to parties.[51]The position in the present case was that once the claim against these Respondents was withdrawn, there was no other claim subsisting. There were no other parties to the case. Thus, when the proceedings against these Respondents came to an end by the operation of rule 25(3), there was nothing left. There was not even, at that stage, an outstanding application from Ms Davidson. All that had happened was that the Tribunal had invited her to make an application. They had not pronounced any order. She might never have made an application. Thus, in the period between the withdrawal of the claim on 23 June 2006 and 13 July 2006, there were no subsisting proceedings, not even proceedings in which the Tribunal had (albeit wrongly, for the reasons we have explained) decided to allow Ms Davidson to be heard. There were, to adopt the language used by the Tribunal in paragraph 14 of its judgment, no "proceedings involving others". Nor would the existence, at the time proceedings were brought to an end under rule 25(3), of persons who had a right to intervene (but had not intervened) have caused the proceedings to subsist. After withdrawal of the claim, there was nothing into which any person could intervene. By then it was too late to seek to do so.[52]At paragraph 16 of its judgment, the Tribunal also sought to justify its approach by stating:
"….we are satisfied that the word proceedings refers to the action between the parties or steps in the action between the parties. In our opinion, a restricted reporting order is not part of that action but "stands outside" that action. The making or revocation or such an order is essentially ancillary to the proceedings between the parties and – we are satisfied – the current application to revoke is not part of the proceedings contemplated by the said Rule."
[53]We disagree. Far from "standing outside" the proceedings between parties, it is of the essence of any RRO that it can only be pronounced in certain "types of proceedings" (rule 50(1)) and the cessation of a full RRO is provided for under reference to liability and remedy having been "determined in the proceedings". Further, an application for revocation is able to be made by a party on account of the provisions of rule 11(1) which allows applications in "the proceedings". Everything to do with RROs is, under the rules, to be dealt with in the context of "the proceedings". The Tribunal may have had in mind the fact that an RRO has an effect on persons other than parties to the proceedings but that does not mean that it is somehow separate and distinct from those proceedings. Alternatively, it may be that the Tribunal reached that conclusion because a full RRO can live beyond the end of proceedings. But that is simply a product of the application of the rules and is not such as to create a separate implied jurisdiction to deal with an RRO that has achieved such prolongation of its life.[54]Much of Mr Bourne's argument was directed to persuading us that it ought to be the case that a person such as Ms Davidson could apply for revocation of a full RRO after the withdrawal of a case where there was no judgment and so no termination by operation of the rules. His argument really amounted to saying that it is only right that a full RRO be brought to an end in such circumstances rather than be left in place in perpetuity. The problem with that approach though is that prima facie the rules envisage that a full RRO will remain in place unless and until all the evidence is led, submissions have been made and a determination of all issues on liability and remedy have been determined by the Tribunal (longer in fact than the period referred to by Judge Peter Clark in the passage from the Leicester University case from which we have quoted). That is, that there will be no identification of the protected persons until what is known is not only the allegations (and, perhaps, counter allegations) but the findings in fact and the outcome of the case. It is against that background that persons give evidence in a case where the protection of a full RRO is in place. There would have to be good reason for earlier revocation. Thus, even if a view as to what ought to be the case was relevant, we are not persuaded that as a generality, the fact of withdrawal of a claim ought to justify the revocation of an RRO. If a party considers that there is good reason for revocation in that event, an application can be made even after withdrawal but no such application was, of course, made in this case.[55]Section 3(1) of the Human Rights Act was also relied on by the Tribunal to justify its view that rule 50(10) should be interpreted so as to preserve its power to revoke a full RRO after withdrawal. Firstly, we do not consider that there is any conflict between the provisions of rule 25(3) and rule 50(10). As we have explained, we consider that a party not affected by the withdrawal of a claim would be able to make the application notwithstanding the fact that proceedings against the respondent affected by the withdrawal are thereby brought to an end. Otherwise the intention of the rules is plain. If there are no other parties then there simply are no subsisting proceedings in which to make an application.[56]Separately, we are satisfied that the Tribunal erred in its application of section 3(1) of the 1998 Act. In paragraph 5 they refer to the provisions of that subsection as if they were to the effect that they required to interpret domestic legislation in accordance with the convention if it was "reasonable" to do so and at paragraph 13 they refer to interpreting legislation in accordance with "treaty obligations" if is "reasonably possible" to do so. The subsection does not, however, import a reasonableness test. The duty is to read and give effect to legislation so as to be compatible with convention rights "if it is possible to do so". Finding that something is possible is not the same as finding that it is reasonable and the repeated use of that expression, notwithstanding the reference to possibility in paragraph 13, does lead us to doubt whether the Tribunal had the right test in mind. However, more fundamentally, we consider that the Tribunal erred in approaching matters on this point in the way that they did. They seem to have regarded themselves as bound to read the rules so as to be compatible with the right to freedom of expression conferred by article 10 of the convention. In so doing, they ignored that this was a case where there was a competition of rights. Article 8, the right to privacy, was also plainly relevant and reading the rules in compatibility with that right would have produced the opposite result. We consider that they were not, in short, required by the convention to read the rules as they did. Disposal[57]In these circumstances, we will pronounce an order allowing the appeal and quashing the Employment Tribunal's order of 13 December 2006.