Baraheni v Royal Berkshire NHS Foundation Trust (Practice and Procedure : Disclosure) [2011] UKEAT 0137_11_1306

EAT
Baraheni v Royal Berkshire NHS Foundation Trust (Practice and Procedure : Disclosure)
[2011] UKEAT 0137_11_1306 · 2011-06-13
[1]In these proceedings Dr Narmin Baraheni (“the Claimant”) appeals against part of an order of Employment Judge Hardwick dated 29 June 2010 in proceedings which she has brought against the Royal Berkshire NHS Foundation Trust (“the Respondent”). Put shortly, the Claimant renewed at a case management discussion on 18 June 2010 an application for disclosure in electronic form of documents that the Respondent had already disclosed. The Claimant’s application, which had already been refused on paper, was refused again. In these proceedings she has appealed against that refusal. The proceedings before the Tribunal[2]The Claimant was employed by the Respondent as a staff grade doctor in the Obstetrics and Gynaecology Department of the Royal Berkshire Hospital in 2003. These proceedings concern events between 2006 and 2008. The Claimant’s case is that the Respondent discriminated against her on the grounds of race in various respects. These include failing to support an application to the Postgraduate Medical Training Board so that she could progress her career to consultancy, suspending her, disciplining her for allegedly misrepresenting the notes of a patient, suspending her again by reason of alleged concerns about her clinical work, requiring her to re-train before permitting her to resume work, and disciplining her for refusing to do so.[3]These proceedings began in 2008. The Respondent denies the allegations, asserting that its treatment of the Claimant was in all respects justified and in no respects discriminatory. Disclosure took place in March 2010. A very substantial quantity of documents was disclosed; some 5,000 pages. Some documents were redacted because they contained confidential information not required for the purpose of the Claimant’s case. One such example was minutes of 27 July 2006. These were important on the question of the application to the Postgraduate Medical Training Board, but they contained information relating to other quite different matters.[4]On 6 May 2010, at a time when she was representing herself, the Claimant requested disclosure of all disclosed documents in electronic format on a CD/DVD or USB. No particular reason was given. The Respondent’s solicitors refused the request on the grounds of cost and proportionality. The Claimant wrote to the Tribunal on 12 May 2010, saying in her email that she had applied to the Tribunal for permission for an expert witness, and that it was necessary for her to have the documents in electronic format. She said:
“This request has also been refused for the reason of cost and disproportionate request. I would like to bring the Tribunal’s attention to the fact that the request has no cost for the Respondent, as I am sure nowadays every firm keeps their records in electronic format rather than paper copies, especially in this case with over 5,000 papers. In addition, I have applied to the Tribunal for permission for an expert witness, and therefore it is necessary that I have the documents in electronic format.”
[5]In a later letter dated 18 May 2010, copied to the Tribunal, she said:
“I am reiterating my previous request that all these documents must be provided in electronic format. I am sure all documents are available in this format. Please provide electronic format of the documents without delay. Considering the large number of documents and the facilities of electronic format, your refusal to provide the documents on CD/DVD or USB key is unacceptable and unreasonable. In addition, there are numbered documents which are highly suspicious of being not genuine, and we must determine their authenticity before the hearing. I am sure you too, as a professional firm, do not want to include non‑authentic documents as evidence in hearing bundles.”
[6]In a letter dated 20 May 2010 to the Tribunal, the Claimant wrote:
“I am writing to inform the Employment Tribunal that the Respondent’s refusal to provide the documents in an electronic format (CD/DVD/USB) is a very unreasonable behaviour. Considering the volume of documents, which are over 5,000 pages, my request is a reasonable request. This will help studying the documents and selecting the documents for the final bundle to take place in a much speedier and reliable way, and help the Tribunal to assess the case and make decisions in a clear and fair way.”
[7]On 27 May 2010 her application was refused by Employment Judge Hill, who said simply that disclosure had been made in paper form; therefore, the duty to disclose had been complied with. Other applications that the Claimant made were to be addressed at a forthcoming case management discussion. On 18 June 2010 the Claimant renewed her application at the case management discussion. She also applied for, “statistical data regarding the provenance of documentation.” These applications were refused. As regards the renewed application, the order reads:
“The application for the Respondent to make its disclosure already made in electronic form is refused on the grounds that it has already been refused by Employment Judge Hill [...].”
[8]Later the Employment Judge was asked for reasons; these were - “The Claimant said there were a large number of documents including minutes of meetings which she was sure were created after the event. The internal grievance regarding the application to PMETB is a suspicious document. She asked for an electronic CD of the documents to be examined by an expert. Counsel said it was an outrageous suggestion that documents had been created. The Claimant said that the minutes of 27 July 2006 had been doctored. I refused application number 3 because I regarded it as wholly fanciful that a public body, if the Claimant’s allegation was to be believed, was effectively guilty of forgery and fraud. The application number 4 was refused because this had already been refused by Employment Judge Hill by letter of 27 May 2010 on the basis that disclosure in paper form had been made and that the duty to disclose had been complied with. I wholly concur with that view that the proper disclosure had already been made.”[9]The substantive hearing of the case has not yet taken place; I understand it is now listed to be heard in August 2011. The Appeal[10]The Claimant has appealed against the refusal of the Employment Judge to order electronic disclosure. Her appeal was considered on paper and considered to disclose no reasonable ground for appealing. However, she asked for a hearing under rule 3(10), as was her right. At this hearing, which took place on 4 April 2011, she was represented by counsel. He restricted his submissions to a single document; namely, minutes of the meeting dated 27 July 2006, the authenticity of which is disputed. On that basis HHJ McMullen QC ordered a short full hearing of the appeal. HHJ McMullen QC did not have most of the correspondence which I have quoted.[11]The Respondent, taking a pragmatic view, agreed to give disclosure of the metadata of the minutes dated 27 July 2006, which had been disclosed to the Claimant. After agreement of the terms and conditions for this exercise, the Claimant’s expert attended on 24 May 2011, received some metadata, and has prepared a report. The Claimant has not disclosed the report which she has received. She complains that the expert has been unable to produce a full report because what has been disclosed is not the metadata of the original document.[12]The Respondent says the following:
“The original document was drafted by Dr Selinger. He emailed it to another consultant on or about 1 August 2006. The consultant retained on her computer the email with the copy attachment. It was the data from her copy attachment that was disclosed on 24 May 2011 to the Claimant’s expert. This shows conclusively that the minutes in their present form were in existence by 1 August 2006, and disposes of the issue in the case viz whether the minutes were a late forgery; they cannot be.”
[13]The Respondent, as Mr Burns told me, accepts that the original hard drive of Dr Selinger may have been kept by the NHS, Dr Selinger having changed computers and not having kept the file on his new computer; it is the Respondent’s case that it is not necessary for the fair disposal of these proceedings that the hard disk should be located, tested to see if it works, and then inspected, when the metadata from the copy effectively disposes of the issue in the case. Submissions[14]The Claimant, who has appeared in person today, submits that the Employment Judge’s reasons for refusing her application were misconceived and inadequate. She criticises the Employment Judge’s comment that it was fanciful to suppose that a public body was guilty of forgery and fraud. She says it is not fanciful that the Respondent has altered or faked documents for the purposes of defending her discrimination claim, and that she requires disclosure to establish that alteration or faking of documents has taken place. She further submits that her application was a reasonable, proportionate and indeed necessary one to do justice in her case. She says that it was focussed on a particular number of documents (she recalls 28 documents) for which she required electronic disclosure. She submits that electronic disclosure of the metadata for Dr Selinger’s original document ought to be disclosed.[15]On behalf of the Respondent, Mr Burns submits that the application was bound to fail, since it was a renewed application with no change of circumstances; that the Employment Judge’s reasons were sufficient; and that the application now made on appeal for the disclosure of a single document is a quite different application, which could have been made to the Employment Tribunal. He submits that no further disclosure is necessary, in the light of the disclosure of the early copy attachment relating to the minutes. Conclusions[16]For the purpose of this appeal I am content to assume that the Employment Tribunal had power to order disclosure and inspection of the underlying data held on any computer relating to the disclosed documents; for example, data showing how and when they were altered. Indeed, the contrary has not been argued.[17]The question for the Employment Judge who was first asked to address the matter was whether such an order was necessary for the fair disposal of the proceedings, and in reaching that decision it was appropriate to have regard to the overriding objective set out in regulation 3 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 . The Employment Judge who originally dealt with this matter was faced with an entirely unfocussed application. Although the Claimant has said to me today that she concentrated her application on a specific number of documents, I can see no sign of that in her applications which I have read or in any document produced for the case management discussion. The Employment Judge was asked to order disclosure and inspection of electronic material relating to the whole of the Respondent’s disclosure. That was potentially a very time‑consuming and expensive exercise. It was also wholly unnecessary to further the overriding objective; I am sure it was not the Claimant’s case that all the many documents which the Respondent disclosed had been the subject matter of faking or alteration. The Claimant could not possibly justify inspection of the electronic material underlying all the documents generated by the issues. To do so would have been consuming, expensive, unnecessary for the purpose of expert evidence, and of little value. In my judgment there was only one course that an Employment Judge could take; it is plain and obvious that the application had to be refused.[18]If the Claimant considered that there was a particular document that was likely to be the subject of faking or alteration, and that inspection of the electronic material underlying that document would, with the assistance of expert evidence, establish the falsity of the document, the correct course was to make an application in respect of that document, setting out her case for the falsity of the document and the expert evidence required. The same course would be appropriate if there were several such documents. Wide, generalised allegations of forgery and fraud against any organisation, public or private, are inappropriate. They are serious allegations; if they are to be pursued in any way, including by the use of disclosure and inspection in a special way, proper details must be given. Unless proper details are given, courts and tribunals cannot distinguish between a justified application which will be granted and an unnecessary application causing expense and trouble for no good purpose which will not be granted.[19]The Employment Judge who heard the case management discussion would have been faced with all these difficulties and would have been bound to refuse the application. In fact, he had a further difficulty: the application was in essence the same as the application that had been refused by Employment Judge Hill with no new aspect to it. An Employment Judge does not err in law if he refuses such an application simply on the ground that it has been made before and refused.[20]When HHJ McMullen QC granted permission to appeal in respect of a single document, the minutes of 27 July 2006, he may have hoped to provoke what has actually occurred: the disclosure of electronic data relating to a single document which the Claimant said was faked. In the end, however, I have to ask whether the Employment Judge erred in law in any way. In my judgment, though the Employment Judge’s reasons were brief, he was bound to reach the conclusion he did. He did not have a focussed application before him, and the application made to him had in substance already been made and refused.[21]It is, I think, unfortunate that the Respondent has disclosed an early copy of the minutes rather than the original without making it clear to the Claimant that this is what it was doing. On the face of it however an early copy will suffice; if it shows that the document existed by 1 August 2006, it will follow that the allegation of late forgery is not made out. The Claimant has not been willing to disclose her expert report as it stands; there is nothing to suggest that the copy disclosed, said to relate to 1 August 2006, is in any way suspicious.[22]If the Claimant says that there is something suspicious about the copy, i.e. that there is reason to suppose that it was not brought into existence in its present form on 1 August 2006, she will no doubt disclose her expert report to that effect and make a focussed application on that basis to the Tribunal; but today is not the appropriate occasion to deal with that; all the more so because the Claimant, representing herself at the moment, is not willing to disclose her report. The Respondent may be well advised to obtain the original hard disk and produce it; that is in the end not a matter for me to judge today.[23]The short answer to this appeal is that there was no error of law in the Employment Judge’s decision, which was plainly correct, given the way the matter was put by the Claimant at the time. It follows that the appeal will be dismissed.