Appeal No. EAT/1260/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 November 2001

Before
HIS HONOUR JUDGE D PUGSLEY
MRS R CHAPMAN
MR P R A JACQUES CBE

LONDON BOROUGH OF HACKNEY	APPELLANT

(1) MR L JOSEPH  
(2) MR B CAMPBELL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR PAUL EPSTEIN
(of Counsel)
Instructed by:
Messrs Akainyah & Co
Solicitors
308 Seven Sisters Road
Finsbury Park
London N4 2AG	

JUDGE D PUGSLEY

1	This is a case which raises serious issues as to the ambit of discovery.  The Appellant appeals an Order made by the Employment Tribunal on 7 September ordering the Borough of Hackney to disclose a document referred to in the Decision as the IRU Report.  This was an independent report, by external observers, of certain aspects of the local authority’s activities.  

2	The local authority contends that the report and its contents contained confidential information and that the basis of trust would be damaged if it emerged in the public domain.  Mr Epstein has told us that those who contributed to the making of that report were assured that the contents would be kept confidential in the sense that they would be restricted to a small number of people, and that the anonymity of their identity would be preserved.  

3	The Chairman ordered the disclosure of the report, observing that it revealed a sorry tale.  Whilst recognising the risk that the disclosure of the report might mean that the findings of the report might take on a life of their own, he concluded he was satisfied that a Tribunal Chairman would be perfectly capable of ensuring the way in which the report was relied upon in the course of evidence, and that the disclosure was justified in the interests of justice, ensuring that such relevant material was available to both parties.  

4	Before us, Mr Epstein has taken a point that this disclosure was outside the ambit of the rules as to disclosure.  He points out that the rule is now one of necessity and the Chairman seemed to be guided more by background relevance than he has been by the consideration of what is necessary.  He has, as a matter of history, taken us to that part of Lord Woolf’s proposals as they then were, at paragraph 12 where he says, in his interim report of June 1995:

 “My proposals do not involve reducing the present jurisdiction of the court.  Rather they are intended to ensure that jurisdiction to order full discovery, on what is now the normal standard of relevance, is only exercised in the very small minority of cases in which it can be shown to be justified.  As part of the case management process, the judiciary will have to have the means and the responsibility to ensure that discovery is limited to what is really necessary.”

5	Now we have carefully considered the arguments raised by Mr Epstein, where he says that the decisions on which the Chairman relied, O’Shea Construction Ltd v Bassi [1998] ICR 1130, 1139,  and in particular the Court of Appeal decision in West Midlands Public Transport Executive v Singh [1988] ICR 614 are not cases which have immediate relevance to the issue here.  

6	If one might just take the case of Singh, that concerned the admission of statistical evidence and in what has become a seminal judgment by Lord Justice Balcombe, it showed the extent to which statistical evidence may be a highly appropriate way of showing discrimination.  This is a rather different situation because a report, based on the making of a value judgment, which it is the Tribunal’s task to make, is not evidence in the way that statistical information can be.  

7	We think that the issues raised by Mr Epstein do raise points that are arguable.  By a letter of 30 October, the Registrar of the Employment Appeal Tribunal ordered that this matter remain in the list as a preliminary hearing, and that it should not immediately progress to a full hearing.  It is trite to say that the issues of disclosure that are concerned in this case could have a wide ranging impact on the conduct of litigation.  The extent to which an external report which may seek to deal with matters which a Tribunal has to consider, should be disclosed is a matter which should receive the attention it both deserves and demands.  There is a tension between the need to ensure justice between parties and for the need to preserve confidentiality in circumstances in which people may have spoken freely, because they were promised that matters about which they spoke would be treated in a confidential manner; would not be widely circulated and their anonymity preserved.  

8	We consider that the arguable points raised by Mr Epstein do exist in his Skeleton Argument.  We direct there should be a Skeleton Argument fourteen days before the full hearing, and that copies of the report are available for the Employment Appeal Tribunal which has to consider the matter.  We assume that it is inevitable that the hearing before the Employment Tribunal is adjourned; we regret this.  Expedition is a virtue, but the interest of justice must take greater precedence.  We hope that this appeal can be heard with as much expedition as is possible.  We think it does deserve and demand full argument in a Tribunal.