Essex County Council v Jarrett (Practice and Procedure) [2015] UKEAT 0087_15_0105
[22]“… The test is whether or not an order for discovery is ‘necessary for fairly disposing of the proceedings’. Relevance is a factor, but is not, of itself, sufficient to warrant the making of an order. The document must be of such relevance that disclosure is necessary for the fair disposal of the proceedings. Equally, confidentiality is not, of itself, sufficient to warrant the refusal of an order and does not render documents immune from disclosure. ‘Fishing expeditions’ are impermissible. ”14. It is as to the application of the test that I have concern and have ultimately come to the conclusion that this appeal should be allowed. My reasoning is this. The issue is not, as the Claimant said, in effect, in her letter of response upon which the Tribunal Judge founded, a matter purely of intention. The expression of intention by a party, assuming for the moment that it is accepted as genuine, does not mean that the intention will actually be borne out in practice. It is the experience of all of us that people may intend to work on for several years but in the event do not do so or, conversely, may intend to retire early but in the event do not.15. The exercise involved in a hearing as to remedy is, so far as future loss is concerned, one in which the Tribunal has to predict what would have been the future if the wrong had not been committed. The Claimant is entitled to be placed in that position. She must not be overcompensated but she must not be undercompensated. This calls for a judgment - an assessment - by the Tribunal. Part of the reason for it reaching any such decision will be its view as to the probability that the intention expressed to it in evidence by the Claimant will be carried through. It may fully accept that intention. But that does not mean to say that the future would have been as intended. It may reject the reliability with which the intention is expressed, in which case it will still have to assess what the future might have been. Or, and perhaps most likely, it may conclude that it accepts the statement of intention to some extent or discounts it to some extent. That is very much a matter of assessing evidence and cross-examination. But it is also relevant to place the decision in context.16. Context in such a case is important. There may be many reasons why an employment might end which do not depend upon the intention of the parties. See the decision of this Tribunal in Contract Bottling Ltd v Cave [2015] ICR 146 , recently reported (see especially paragraphs 13 to 21). Here, for instance, there might be arguments which depended upon the extent to which the Claimant would have wished to retire given that her partner was retired. There might be questions as to her ability or desire to continue, which she recognised herself by referring to her state of health. What was in issue, in particular, was the question of whether she had sufficient funds from other sources such that she did not need to soldier on at work when she otherwise might have wished to cease. In short, it plainly would be a relevant question to ask the Claimant in the course of evidence what pension she had from other sources. Experience elsewhere shows that the receipt of a pension is one factor which may persuade a person to retire. It is often, for instance, referred to in those cases which have considered whether what could be discrimination on the ground of age is justified in the circumstances given the extent of any financial feather bed which would soften the impact of retirement.17. In a case which came before me recently, in which I have yet to give Judgment, the facts show that in the police force the moment police officers are entitled to immediate payment of pension, the majority of them seek to retire even though they could continue for around 10 years or so. Evidence as to the behaviour of others is part of the context within which an assessment of the individual is to be made, though it remains, I emphasise, an assessment of what would have been the position, so far as it can be gauged, for that individual, as to which plainly her past, her work, her character and her intention are all important. Nonetheless it seems to me to be relevant to know what financial resources she would have had had she continued to work, which would have had or might have had an impact upon her remaining in work. Given the size of the claim here, there could be no issue that asking the question and requiring an answer to it in the course of the hearing would be either inappropriate or disproportionate. I do not see why, since the information was known to the Claimant, it simply could not have been given in advance. It seems to me a simple matter to have provided an answer.18. The Respondent was entirely right to say that the money received from other sources would be unaffected by whether the Claimant worked on in employment with Essex County Council or not. Credit does not have to be given for the receipt of such other income (see Parry v Cleaver [1970] AC 1 ). But that is not the point.19. Further, as it occurs to me, the assessment here was based upon the net wage. Net wage is the gross pay from which tax has been deducted. The marginal rate of tax depends critically upon what other income is received. If, for instance, other pension payments amounted to say over £40,000 per year, then the Claimant would receive all her income lost by reason of the Respondent’s wrong at a level from which higher rate income tax would be deducted. That affects the calculation. Plainly, therefore, the question of pension payment was relevant not just to the objective assessment of the chances of retirement before age 70, but also to the calculation of the quantum of any award.20. Though relevance seems to me to have been questioned in the Claimant’s letter of response which the Judge adopted, it is to Mr Robinson’s credit, appearing for the Respondent today, that he does not seek to argue that information as to other pension payments is of no relevance. He argues it is of little relevance because the intention of the Claimant is all-important. But on that too he quickly recognised that the question is not just one of intention. It is one of the assessment by the Tribunal of the chance, taking into account intention but not being ruled by it, that the Claimant would have continued in employment, had the wrong not been done.21. Accordingly I think the reasons advanced by the Respondent do not stand scrutiny. It follows the reason advanced by the Judge itself does not stand scrutiny. In context, the only issue for me then becomes whether the disclosure can truly be said to be necessary. On this Mr Robinson argues, asking rhetorically, where do matters stop? Does the Claimant have to disclose how much money she has in her bank account, since she might be feather-bedded by that from the effects of a loss of income in retirement? That was not what was asked for here. Had it been there might be arguments that it was relevant but of such limited relevance that documentary proof ought not to be disclosed. 22. I take on board those points but I consider there was here, given the nature of the claim, and given the fact it was a request for information, no very obvious reason why the information was not supplied. The Claimant stood on a matter of principle. It might be that someone who has been wronged, as she was, would feel inclined to take such a stand, particularly in respect of information which might seem to be personal. But she could not legitimately refuse to answer a question about it if asked in cross-examination. I do not see it as being suggested that she could. It is proportionate that she should be asked the question in advance and give an answer. It is “necessary” in the Canadian Imperial Bank sense that it be given. Conclusion 23. Accordingly, on grounds 1 and 3 I find that in this particular case, in these particular circumstances, the order was wrongly made. The parties are agreed that I should exercise my own discretion. Having regard to the statement of principle which I have set out and which is not disputed, and having regard to the relevance of the matter, I order that the information be disclosed. I emphasise, however, that the information should not be regarded as critical in the sense of determining whether or not the Claimant would have gone on to 70. It is one of the factors to which the Tribunal will expect to pay regard just as, in other cases, in other circumstances, it will have regard to the whole of the circumstances in reaching an appropriate conclusion, whatever that might be. On that basis this appeal is allowed.