MRS BERNADETTE BAXTER AND OTHERS (SUB MULTIPLE OF THE SURTEES LITIGATION) v MIDDLESBROUGH BOROUGH COUNCIL [2008] UKEAT 0282_08_1107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0282_08_1107Case No Appeal No. UKEAT/0282/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS BERNADETTE BAXTER AND OTHERS (SUB MULTIPLE OF THE SURTEES LITIGATION)APPELLANTSMIDDLESBROUGH BOROUGH COUNCILRESPONDENT
Before
His Honour Judge BurkeDate 11 July 2008
[1]APPEARANCES For the Appellant MS S DREW (of Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road Newcastle upon Tyne NE4 8AW For the Respondent MRS J CALLAN (of Counsel) Instructed by: Middlesbrough Council Legal Services PO Box 99A Municipal Buildings Middlesbrough TS1 2QQ SUMMARY EQUAL PAY ACT: Case Management PRACTICE AND PROCEDURE: Disclosure In multiple equal pay claims the ET found that documents relating to a 2004 job evaluation exercise were privileged and need not be disclosed by the employers. The appeal, insofar as it attacked that conclusion, failed; see my first judgment. This second judgment deals with the attack on the Employment Tribunal's further conclusion that that privilege had not been waived. Held 1) the Employment Tribunal were entitled to conclude that there had been no waiver 2) there had not been a partial waiver by waiver of other documents of the same class which made it unjust for the employers to rely on privilege 3) Article 6 did not alter the common law position. HIS HONOUR JUDGE BURKE QC Yesterday I gave judgment upon ground 1 of the Claimants' Notice of Appeal against the judgment of the Employment Tribunal, in the person of Employment Judge Barton, sitting alone at the Tribunal at Newcastle upon Tyne, that documents consisting of or relating to a desktop job evaluation exercise carried out by the Respondents, Middlesbrough Council, in 2004, were subject to litigation privilege and could be withheld by the Council from disclosure.[2]I described in my judgment the nature and history of the litigation in the course of which the privilege issue arose and the nature of that issue. I decided that the Claimants' appeal, based on ground 1 of the Notice of Appeal which asserted that the Employment Judge had been in error to conclude that the 2004 job evaluation documents fell within the boundaries of litigation privilege, should be dismissed.[3]Ground 2 of the Notice of Appeal was directed at the Employment Judge's alternative decision that the Council had not waived that privilege. Unlike ground 1, ground 2 was rejected at the sift stage by the President; but on Wednesday, 8 July, the day before the full hearing before the EAT of the Claimants' appeal on ground 1, the Claimants sought, within the 28-day period permitted by the Rules, as they were entitled to do, an oral hearing under Rule 3(10) of those Rules in respect of ground 2. That unusual sequence of events occurred because the EAT had expedited the full hearing on ground 1 so that the appeal could be determined before the hearings of the Claimants' equal value claims against the Council resumed on 21 July.[4]By agreement with the parties through Counsel, yesterday after I delivered judgment on ground 1, Ms Drew, on behalf of the Claimants, made submissions to me in order to persuade me that ground 2 of her Notice of Appeal had reasonable prospects of success. This Rule 3(10) hearing took place in the presence of but, of course, without the participation of, Mrs Callan, Counsel for the Council. I decided that there were such prospects and, therefore, that there should be a full hearing in relation to ground 2; and it was agreed that that hearing should be heard this afternoon (as it has been), Mrs Callan, having, in the meantime, had the opportunity to consider Ms Drew's amended Notice of Appeal, put in under Rule 3(8), and, indeed, to put in a skeleton argument. I am grateful to both Ms Drew and Mrs Callan for their arguments, both oral and written.[5]I do not propose to repeat today what I said at some length yesterday by way of introduction and history in my judgment, which should be read together with this judgment. I intend to address only the arguments put forward in support of and against Ms Drew's case that the Employment Judge erred in law in concluding that there had been no waiver of privilege in respect of what, waiver aside, were, in my judgment, properly held to be privileged documents.[6]The principal sections of the Employment Judge's judgment were set out in yesterday's judgment; but I did not set out the passages in which he dealt with the waiver issue, knowing that I might come to those passages today. The Employment Judge addressed the waiver issue in brief terms. I have no doubt that it was given less prominence than the privilege issue; the arguments, as developed before me this afternoon and yesterday, were, it is manifest, not developed to the same extent. He had before him a body of documents which were relied upon by Ms Drew as indicating that there had been waiver, not only in relation to the fact of the 2004 evaluation exercise but also to the content of that exercise. At paragraph 19 he said this:
"As to waiver there was some difference between the parties as to what might have happened before the Tribunal at the time this matter was referred to me in that Mr Jeans suggested that Mr Hargrove had expressed the view that the references to which Miss Drew made in the documents did not amount to waiver of privilege whereas Miss Drew suggested that he simply deferred that issue for me to decide."
[7]In his conclusions on the waiver issue (at paragraph 27) he said:
"If Employment Judge Hargrove had decided at the point of reference to me that the documentary evidence relied upon by the claimant's counsel did not amount to waiver of that privilege then I can only say that I am satisfied that that was the right decision and is the one that I make also. The mere reference to the existence of a potentially privileged document without a reliance upon its content cannot in any sense waive privilege."
[8]In her amended ground 2 of the Notice of Appeal, Ms Drew advances that ground on three fronts. I can summarise them, I hope without disrespect, in this way:(1) the Employment Judge did not take into account the fact that the 2004 job evaluation was one of a sequence of job evaluations, being followed by the job evaluations in 2006 and 2007, which had been disclosed, as had the witness statement of Ms Maughan and the correspondence which was before him and is before me and other documents which, taken together, constituted waiver of privilege in respect of the 2004 documents.(2) The principles of privilege and waiver do not permit partial waiver of documents which were created for the same purpose and go to the same issue, as was the case here in relation to the sequence consisting of the documents relating to the job evaluations in 2004, 2006 and 2007. In this respect Ms Drew relied on the decision of the Divisional Court in, as officially titled, R v The Secretary of State and Transport ex parte Factortame Ltd and Others , but I think is more colloquially known as Factortame 11 .(3) Thirdly, Ms Drew relied on the effect of Article 6 of the European Convention of Human Rights . As to that third front of Ms Drew's attack on the Employment Judge's decision as to waiver, in yesterday's judgment I held that Article 6 did not affect the application of the common law principles of privilege in the context of this case. Ms Drew accepts that I could not come to any different conclusion in relation to waiver and has not presented any further arguments in relation to waiver to those which she put forward on ground 1 of her appeal, which I addressed yesterday. Although she has not formally abandoned her third way of putting her appeal, I do not propose to say any more about it, save that I reject it as a basis on which the Employment Judge should have found that there had been waiver if the common law principles did not lead to that result. Therefore, I, in this judgment, will address the first and second of her points.[9]As to the first point, Ms Drew submitted that(1) if the 2004 job evaluation documents were privileged, the 2006 and 2007 job evaluation documents, which were for the same purpose, must have been similarly privileged.(2) The three evaluations, therefore, form part of a single sequence or process of job evaluation, all prepared by the same person studying the same jobs by the same method.(3) All three evaluations are directly relevant to the issue in the proceedings, particularly the Claimants' response to the Council's reliance on the 2007 evaluation for the purpose of section 2A(2) of the Employment Act 1970 . The fact that the Council declined to disclose the 2004 documents naturally led the Claimants' advisers to believe that those documents would show that the Claimants' jobs and the jobs of the comparators were much more close together in terms of job evaluation than in the 2007 evaluation and thus the 2004 document could show that the 2007 evaluation was not suitable and could not be used to knock out the conclusions of the independent expert who had reported largely in the Claimants' favour.(4) The documents showed that there had been an actual waiver of the contents of the 2004 documents, when all the documents were considered together.[10]I do not doubt the potential relevance of the 2004 evaluation. The Council have not sought to suggest that they should not be disclosed because they are not relevant. But the fact that they are relevant does not lead to the conclusion, nor does it even start along the road to the conclusion, that privilege in relation to these documents has been waived.[11]Ms Drew relies on the witness statement of Ms Maughan, the Director of the Council's Human Resources Department. I have been through that witness statement with some care. In paragraph 4 Ms Maughan says that, in November and December certain Red Book jobs, that is to say, the craft jobs (and the two comparators with whom the Claimants sought to compare themselves being craft workers) were evaluated. She says:
"I am advised that the Council is claiming privilege in respect of this exercise."
[12]Subsequently in the witness statement, at paragraph 7, she refers to discussions in June 2005 with Mr Wood, who was then the relevant manager, to arrange further job evaluations; and she talks about how that process started and was carried out and continued into 2006. In paragraph 12 she refers to the Council's wish to reach a new collective agreement with the trade unions as to rates of pay determined by the job evaluation process and says that there was a duty on the Council to try to reach such agreement if possible and refers to Mr Woods telling her that he thought that most of the staff involved would either stay the same or benefit and only a few would lose. That was relevant to whether the trade unions would or would not agree.[13]Thereafter, the process is described in the following paragraphs, into which I need not go; for it is, in my judgment, plain that that witness statement does not involve, of itself, any waiver of the contents of the 2004 evaluation documents. I will come later to a different question which is whether there has been a partial disclosure which it is unfair to allow to stand as partial disclosure, but at the moment I am dealing with Ms Drew's first point.[14]Ms Drew relies next on correspondence between the Council and trades unions and a note of a meeting between the Council and the unions on 12 May 2006. I have looked through those documents, just as I did in connection with the privilege issue in yesterday's judgment; and I see nothing in them which could properly be said to amount to a waiver of the content of the 2004 documents. Again, whether they point to the purpose of the 2006 and 2007 evaluations is a matter to which I come later.[15]It is not suggested that the memorandum dated 7 August 2007, which Ms Drew relies upon heavily in her submissions as to what was the purpose of the later evaluations, amounts to a waiver of the contents of the earlier evaluation.[16]While I entirely accept Ms Drew's submission that waiver does not depend in any way on the intention of the party said to have waived (see Great Atlantic Insurance Company v Home Insurance Company [1981] 1 WLR 529), the question of intention for present purposes does not arise. There was, in my judgment, no waiver of the content of the 2004 evaluation documents, whether deliberate or otherwise.[17]Having considered the material which was before the Employment Judge and which he refers to, although not in detail, in paragraph 19 and paragraph 27, I conclude that he has not erred in law in concluding that there have been no actual waiver. He did not set out detailed reasons for that conclusion; but he did refer to the documents. He was, manifestly, referring to the documents to which I have just referred. Because he does not deal in detail with the documents in his judgment, I have, as is apparent from what I have just been saying, considered them afresh to see if they do have the effect for which Ms Drew contends. I have concluded that they do not.[18]I turn, therefore, to the second way in which Ms Drew puts the waiver argument; and it is this: the three sets of evaluations (Mrs Callan tells me that there was a trial run in 2005 but that factual complication makes no real difference to what I have to decide) were all carried out for the same purpose and thus form part of a sequence of documents such that it would be unfair for partial disclosure of that sequence to be permitted.[19]The submission is largely based on Factortame 11 which was not before the Employment Judge, although I am told that a passage from the White Book (which I have not myself seen but presumably embodied the principle in Factortame) was mentioned to him. It does not appear that the argument was given such emphasis that the Employment Judge felt it necessary to deal with it as a separate argument.[20]It is common ground that Ms Drew's first premise that the three exercises of job evaluation were all carried out for the same purpose is a necessary starting point to this submission. The Employment Judge made no finding as to the purpose of the 2006 and 2007 exercises as opposed to the 2004 exercise; the purpose of that exercise he was, of course, expressly invited to make a finding about, and did indeed make a finding about, in order to decide whether the 2004 documents were covered by privilege at all, irrespective of any question of waiver.[21]Ms Drew says that the Employment Judge was invited to make a finding as to the purpose of the 2006 and 2997 exercises; Mrs Callan says that he was not. That is an issue which I cannot begin to resolve; but in order to avoid a remission in circumstances in which all parties need to know the outcome of this appeal before the Equal Value hearings resume in a week's time, Ms Drew and Mrs Callan are agreed that I am in as good a position as was the Employment Judge to decide the issue of the purpose of the 2006 and 2007 exercises and that I should make that essential decision.[22]I have to say that I do not feel entirely comfortable about this. If I had been the Employment Judge (and in effect I am being asked to put myself in his shoes) I might have asked whether Ms Drew wanted to cross-examine Ms Maughan; but there is no suggestion that there was any live evidence given or that any should be given before me; and I have to do the best I can with the material which I have.[23]There is no doubt, as I have said, what the purpose of the 2004 exercise was. It was, as the Employment Judge found, carried out so that Counsel could better advise the Respondent. It was done for the purpose of obtaining advice. It was not undertaken with the intention of implementing the results of the exercise to the posts involved. With that purpose in mind, I turn to look at the documents from which Ms Drew, on the one hand, and Mrs Callan on the other, say I should reach conclusions as to the purpose of the 2006 and 2007 exercises. The documents are very much the same documents as those to which I have referred when considering whether there had actually been a waiver, i.e. Ms Drew's first ground.[24]I start, then, with Ms Maughan's witness statement which sets out a history of how the 2006 and 2007 evaluations came to exist. Ms Maughan sets out that, after discussions in June 2005, Mr Wood was asked to arrange for desktop job evaluations for the Red Book staff (those who remained, some having gone) and, for that purpose, to meet the trade unions concerned so as to seek their co-operation in the proposed exercise. That would have appeared to indicate that the purpose at that stage was seen to be, at least in part, to affect, by the job evaluation, the terms and conditions of employment of those falling within its scope.[25]The story goes on in the same light. The 2006 evaluations were then carried out, says Ms Maughan at paragraph 13, and were used to set grades and rates of pay, which the 2004 exercise undoubtedly was not on the conclusion of the Employment Judge. Then paragraphs 14 and 15 describe how there were difficulties in reaching a collective agreement with the union; and so Mr Wood reached individual agreements with the staff concerned to place them on the new grades and rates of pay. Thereafter, the account is that Mr Wood retired and Mr Punton replaced him. Ms Maughan believed that there was a robust job evaluation in place; but Mr Punton said that he did not think that he could stand up for the evaluation carried out under the aegis of Mr Wood and, therefore, was asked to go through a process of re-evaluating the Red Book jobs in order to make sure the jobs were fairly graded and seen to be fairly graded.[26]So far the evidence is that the purpose of the 2006 and 2007 exercises was implementation. I next look at the documents which Ms Drew relies upon for her submission that that is not the reality. They consist of a letter from AMICUS to Ms Maughan of 28 November 2005, a letter in reply to that dated 2 December 2005, a letter to UCATT of 25 April 2006, a manuscript document, which is undated but the date of which should be 17 May 2006, and the memorandum of 7 August 2007 to which I have already referred.[27]The documents passing between the unions and Ms Maughan, in my judgment, do not reveal that the purpose of the 2006 and 2007 evaluations did not include the purpose of implementation; and they certainly do not support the suggestion that the purpose was the same as the purpose of the 2004 documents, namely, an intention to put them before counsel to obtain legal advice. They do refer to the fact that the Council was preparing to use the outcome of the 2006, and later the 2007 evaluations, as helping their cause in the Equal Value claims in particular, by being capable of being used to their advantage under section 2A(2A) of the 1970 Act. I do not read them as indicating that that was a sole purpose of those exercises, still less that the purpose of the exercises was to put the product before Counsel for advice.[28]In the letter of 25 April 2006 Mr Wood said to an official of UCATT that the proposal of the Council involved an increase in the basic rate of pay and that a desktop job evaluation had been used to assess the amount which was appropriate to offer for the Red Book employees' work.[29]The manuscript document of 12 May 2006 does not, in my judgment, advance Ms Drew's cause. It is difficult to work out precisely what it is saying; but I do not see how one can derive from it material which supports the conclusion that the purpose of what was then either in hand or planned was only preparation for existing litigation, still less for being put before Counsel for legal advice.[30]The high point of Ms Drew's argument is undoubtedly the memorandum of 7 August 2007. That reads as follows:
"Tom – I met with Richard Long and Noel Wright from Legal on a number of matters and they confirmed the position on the Red book evaluations. When we have the strategy meeting this afternoon Richard and I intend to propose that we follow the course of action discussed with you already – namely that you re-do these evaluations to identify what can be defended and then we plan to use your evaluations as the basis f our defence rather than Mike Wood's. You would then be the witness when we proceed to tribunal. If you have any concerns about this do let me know – it seems to me like the best way out of the little mess you, and we, have been left with! I will keep my fingers crossed that your evaluation does not indicate that we have to drop the grade but if it does then so be it and we will have to discuss what we do next if that is the case – as you know it is very important, going forward, that these evaluations are defensible and cannot look as if they were given special treatment. The other issue we discussed was the Mrs Hodgetts case."
[31]The contents of that memorandum plainly show that the writer, Ms Maughan, had in mind the use of the 2007 evaluation to identify what could be defended in the ongoing litigation. But it also does not exclude the other purpose which, in my judgment, emerges from Ms Maughan's witness statement and the union management interchanges, to which I have referred, namely the purpose of implementation.[32]I, therefore, conclude(1) that the material before me does not demonstrate that the purpose of the 2006 and 2007 exercises was exclusively preparation for litigation and(2) was the same purpose as that for which the 2004 exercises (therefore, the resulting documents) came into existence.[33]I have not thus far referred to any part of the decision in Factortame itself. It is fair to say that, in the relevant paragraphs of the judgment of Auld LJ, with which Popplewell J agreed, consideration of the purpose of the documents on the one hand which had been withheld and, on the other hand, which had not, is not given the prominence which it was given in the submissions before me. But the purpose is obviously relevant and highly relevant to the question as to whether the documents form the sequence on which Ms Drew relied, so that they could not in fairness be treated separately or as severable, or whether they were capable of being so treated.[34]It is notable that Auld LJ said, realistically, this:
"The more confined the issue, for example as to the content of a single document or conversation, the more difficult it is likely to be to withhold, by severance, part of the document or other documents relevant to the document or conversation."
[35]Here we are dealing with documents which, I find, were brought into existence for different purposes and separated, insofar as the 2006 documents are concerned, by something like two years and in the case of the 2007 documents, by three years (it may be slightly less. I do not have information to hand that would enable me to give precise dates for the relevant period, they are roughly correct).[36]I have come to the conclusion, for the reasons which I have set out, not without some hesitation and a little bit of regret, that the Factortame principle does not apply so as to produce a position of partial waiver which is unfair to the extent that the 2004 documents must be disclosed as a result of the disclosure of the 2006 and the 2007 documents.[37]My regret is based on this, that a lay person might well think that the withholding of the 2004 documents by the Council while they rely on the 2007 documents was "unfair" in a lay sense; and I have had that very much in mind. But, applying what I understand to be the right principles and considering the submissions made to me and the importance of purpose, as is common ground between the parties, I have concluded that this aspect of the second ground of appeal also fails; and, therefore, ground 2 of the Notice of Appeal does not persuade me that the Employment Judge erred in his decision on waiver, even if he did not deal with the precise point.[38]Therefore this aspect of the Claimants' appeal is also dismissed.