Appeal No. UKEAT/0422/07/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 31 October 2007
Judgment handed down on 18 February 2008

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

SOUTH LONDON & MAUDSLEY NHS TRUST	APPELLANT

MRS S DATHI	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR TOBY KEMPSTER
(of Counsel)
Instructed by
Messrs Capsticks Solicitors
77-83 Upper Richmond Road
Putney
London
SW15 2TT:	
For the Respondent	MR ZEESHAN DHAR
(of Counsel)
Instructed by:
Messrs Sternberg Reed Solicitors
12-18 Station Parade
Barking
Essex
IG11 8DN

SUMMARY

Practice and Procedure  
  Striking-out/dismissal
  Admissibility of evidence

An employment tribunal has no jurisdiction to hear a claim of discrimination and victimisation founded upon a letter from the Respondent’s advisers to the Claimant’s advisers refusing to disclose a document said to be relevant.  Disclosure and preparation of bundles pursuant to case management directions are protected by absolute immunity.  So is a response directed to the Tribunal to the Claimant’s application for costs.  Both letters came into existence for the purpose of the proceedings and in the second case was “akin to a pleading” and thus both attracted absolute immunity.  The Claimant’s claims based on those two letters were struck out.

.

HIS HONOUR JUDGE McMULLEN QC

1.	This appeal raises the relationship between two important public policies. Those who give evidence in judicial proceedings should, with limited exceptions, be protected from proceedings for what they say and do there. A person who claims discrimination and victimisation has a right to a hearing.  If the first policy prevails, it operates as an absolute bar to the Claimant’s claim.  If it has no place in these proceedings, the Claimant may yet be met by the same response which is that steps were taken during the course of proceedings in an honest and reasonable attempt to defend them.

2.	I will refer to Ms Dathi as the Claimant and the Respondent as the Trust.  The Second Respondent appears in para 6. The judgment has been delayed because I directed the parties to consider conciliation, the Claimant having outstanding claims and having already achieved very substantial unappealed findings in her favour.  Sadly, I was notified on 8 January 2008 that the parties have been unable to reach a conciliated settlement of the new claim.

Introduction
3.	It is an appeal by the Claimant arising out of three judgments of an Employment Tribunal sitting at Ashford, Kent in 2006 and 2007.  The first, which I will call the old claim, lasting nine days including a day in Chambers, was chaired by Employment Judge V J Wallis. Reasons were sent to the parties on 7 November 2006. It upheld the Claimant’s claims, based on her race/religious belief, of harassment against the Second Respondent, and of less favourable treatment and victimisation against the Trust and in part against the Second Respondent.  The hearing had been conducted pursuant to a CMD held on 6 March 2006.  At the conclusion of the judgment a remedy hearing was ordered to take place on 29 November 2006.  In between the judgment on the old claim and the hearing on remedy, the Claimant applied for costs to be ordered against the Respondents.  At the remedy hearing the Trust was ordered to pay £55,631.33 compensation and the Second Respondent £1,586.53.  The awards included £20,287.50 for injury to feelings, and £13,192.30 for psychiatric damage.  The award against the Second Respondent was entirely composed of injury to feelings.  The total award payable by the Trust was subject to an uplift of 25 per cent as it had failed to follow the statutory grievance procedure set out in Schedule 2 Part 2 of the Employment Act 2002.  The Trust was ordered to pay 50 per cent of the Claimant’s costs, to be assessed. No part of those judgments has been appealed by either Respondent.

4.	On 27 February 2007 the Claimant presented a second claim which I will call the new claim.  This alleges discrimination and victimisation against the Trust only on the grounds of race/religious belief, constructive unfair dismissal, wrongful dismissal and breach of contract.  The Respondent took a number of jurisdiction points as well as responding on the merits.  At a hearing on 13 July 2007 before Employment Judge Wallis sitting alone, the jurisdiction points were dismissed and detailed directions were given for the next stage of the hearing of the new claim.  The Respondent appeals against that new judgment.

5.	The preparation for, and presentation of, the Respondent’s case on the old claim was in the hands of Mrs S Morris, a Consultant of Aikin Driver Employment Law Advisers.  The Respondent was represented on the new claim by a solicitor and today by Mr Toby Kempster of Counsel.  The Claimant has been represented throughout by Mr Zeeshan Dhar of Counsel.  

The facts
6.	Only a brief sketch of the facts is necessary for the point in this appeal.  The Claimant describes herself as a Muslim of Indian origin, from Tanzania.  She was born in 1954.  She was employed as a receptionist, providing administrative and secretarial support to the Bromley Advice Information Service (BAIS).  This is run by the Respondent and supports a team of doctors, nurses and psychiatrists assisting the Respondent’s clients to fight drug addiction.  The Trust and BAIS are in south east London.  The Second Respondent, a senior substance misuse nurse, was involved in setting up BAIS. The Claimant and he worked together.  She made a number of complaints against him and against the Trust which culminated in the judgment in the Claimant’s favour on the old claim.  On 9 December 2005 the Claimant went sick and never returned to work.  

7.	On 28 November 2006, on the eve of the remedy hearing of the old claim, the Claimant wrote to the Trust and resigned.  She refers to a range of matters, the latest of which was a letter from Aikin Driver on 23 November 2006.  The hearing went ahead on 29 November 2006 when the awards set out above were made.  The new claim was presented on 27 February 2007.  According to the analytic approach taken by Mr Kempster in his written submission, not disputed by Mr Dhar, eight separate acts were relied on for the purposes of the new claim.  Mr Dhar’s skeleton argument deals only with two.  While not expressly abandoning submissions in relation to the other six, he did not pursue them and I heard no argument upon them.  I will therefore decide the appeal on the two grounds which have been argued by both Counsel.  They relate to what I will call the disclosure letter of 23 June 2006 and the costs letter of 23 November 2006.

The disclosure letter
8.	The disclosure letter was written by Mrs Morris of Aikin Driver to Sternberg Reed, who are the Claimant’s solicitors.  Having cited the full title and number of the case she said this:

“We refer to your letter of 22 June 2006 received by fax.
The Joint Bundle we have forwarded to you contains the  documents which you provided us with in your letter of 31 March 2006 and which we provided you with in our letter of 3 April 2006 following the CMD requirement to disclose copies of all documents on which the parties intend to rely.
We have attached one additional document i.e. letter to G Collier from C Perez dated 30/8/05 for inclusion in the Joint Bundle. We have not yet received your additional documents, however upon receipt we will incorporate them into the Joint Bundle as requested and prepare a revised index.
We note your request for disclosure of the documentation relating to the investigation into the Claimant’s grievance. As you are aware, this investigation has not yet been completed. It is Trust policy not to disclose investigation documentation unless a decision has been taken as to whether there is a case to answer. Under the circumstances we are unable to agree to your request at this point in time.”

She then went on to deal with “your other requests for disclosure”.

9.	The Claimant’s complaint about this letter in her new claim is under the heading “Particulars of further conduct between filing of claim and hearing date”.  The old claim was filed on 30 December 2005 and the hearing date was 4 July 2006.  What follows is this: 

“4.	The Claimant relies on the following conduct of the Respondent carried out on the grounds that the Claimant’s race and/or religion, as amounting to further acts of victimisation and/or acts contributing to a breach of the said implied term of trust and confidence…
4.9	On or around 23 June 2006 prior to the Tribunal hearing of 4 July 2006 the Respondent deliberately sought to prejudice the Claimant by refusing to disclose interviews with witnesses that clearly supported the Claimant’s allegations that Mr Gosnell had made the said remarks set out above.”

10.	The Respondent’s case is that that letter enjoys absolute immunity, arising in the course of the proceedings between the parties.  A number of short points can be made about this letter.  Mr Dhar accepted before me that it came into existence for the purposes of the CMD referred to in the second paragraph.  It is common ground that proceedings before an Employment Tribunal constitute judicial proceedings.  No point has been taken as to the nature of the Respondent’s representation.  At one stage the Claimant referred to Aikin Driver as “the Respondent’s legal representative”.  A party to proceedings in an Employment Tribunal may be represented by anyone they chose.  Representation by people who are experienced in employment law but who are not lawyers is common and is encouraged.  Those who represent claimants in the course of business must be authorised or exempt under the Compensation Act 2006, where such claims are regulated.  It would be invidious in such a jurisdiction for different rules to apply to legal and non legal representation since the rule advanced by Mr Kempster focuses on protection of those who take part in the proceedings, their representation being irrelevant to this protection.  The letter is plainly part of a simple exchange of correspondence between the representatives aiming to satisfy the directions given at the CMD as to disclosure and preparation of bundles.  The refusal contained in the final paragraph is based upon the Respondent’s policy and instructions given to Aikin Driver.  The Claimant says that that refusal constitutes unlawful discrimination, and also victimisation on account of having done a protected act, which is to bring discrimination proceedings.

11.	The investigation cited in the disclosure letter appears to be cited in the chronology as “investigation into the Claimant’s grievance commences March 2006”, and corresponds to the finding at paragraph 55 of the first judgment, as to which the Tribunal said “At the date of the Tribunal hearing the Claimant had not been interviewed, firstly because of her health and secondly because of the pending Tribunal hearing”.  Although this postdates the claim, it appears to be a finding based on evidence led by a witness for the Trust, who must have produced the notes of interviews apparently taken as part of the yet unfinished investigations started in March 2006 into the Claimant’s grievance about the Second Respondent (Reasons paragraph 9).  So it appears to me that the material cited in the disclosure letter and initially refused in that letter was produced as evidence before the Tribunal either as agreed documentation or through a relevant witness.

The costs letter
12.	The second act relied on by the Claimant followed a letter on 22 November 2006 from Sternberg Reed to the Employment Tribunal copied to Aikin Driver, which, after citing the case and the judgment, by then extant, said this:

“We wish to make an application for costs in accordance with the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, Sch 1 Rule 38 and Rule 40 (2) & (3) on the basis that the Respondents have in conducting the proceedings, acted vexatiously, abusively, disruptively, or otherwise unreasonably, or the conducting of the proceedings by the Respondents has been misconceived.  
We confirm that we have forwarded a copy of this letter to the Respondents’ legal representative.”

13.	In response, the costs letter was written by Aikin Driver to the Employment Tribunal with a copy for Sternberg Reed.  After citing the name and number of the case Mrs Morris said this:

“We have received a copy of the Claimant’s letter of 22 November 2006 faxed to yourselves yesterday.
It is the intention of the Respondents to resist this application for costs and it is denied that they have in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably or the conducting of the proceedings by the Respondents has been misconceived as quoted by the Claimants legal representative.
It is the belief of the [Trust] that they were acting in accordance with the principles of their own grievance procedures both in terms of dealing with grievances in the order in which they are received and in terms of trying to reach a mediated resolution to the issues raised following investigation into the second Respondent’s grievance.  The [Trust] does not accept the Tribunal’s finding that there was a change of tack or that investigation in to the Claimant’s grievance had only been commenced as a result of her indicating that she had been advised to make an Employment Tribunal Claim.
The [Trust] does not deny that it was keen to resolve matters through mediation if this were feasible.  As the Claimant’s grievance was lodged as an addendum to her statement in response to the second Respondent’s complaint then this is surely not an unreasonable course to follows
The [Trust] accepts and supports the principle of an employee’s right to raise a grievance and to seek resolution through the grievance procedure if resolution through mediation was not feasible. To this end, the [Trust] will claim that it had begun an investigation into the Claimant’s grievance. The process has not been completed due to the intervening Employment Tribunal hearing at the request of the Claimant’s legal representative.
Had the Claimant been willing to attend a meeting as requested with the Trust then her concerns about mediation and the status of her grievance could have been discussed and a way forward mutually agreed.
The second Respondent, as stated in his evidence, explained that he had lodged his complaint under the Trust’s Harassment and Bullying Policy because the descriptions that it gave seemed to fit how he felt after the incident involving the Claimant on 7 July 2005. He also indicated that he would be willing to attend mediation in an endeavour to reach an amicable outcome.”

14.	The Claimant’s new claim form under the heading “Particulars of conduct – post-determination” claimed that the letter constituted an act of race and/or religious discrimination and an act of further victimisation in the following respects:

“6.1	Failing to issue the Claimant with an apology for its conduct.
  6.2	Refusing to accept the Tribunal’s finding that there was a change of tack on the part of the Respondent only after the Claimant had informed the Respondent that she intended to file a complaint with the employment tribunal.
  6.3	Continuing to claim that the Respondent acted reasonably in seeking mediation as a means of resolving the Claimant’s grievance despite the Tribunal’s finding to the contrary.
  6.4	Continuing to maintain that the Respondent’s investigation of the Claimant’s grievance could not be completed due to the intervening employment tribunal hearing, when the tribunal had found that the Respondent has initially rejected the Claimant’s grievance by letter of 2nd December 2005.”

15.	As to this costs letter, Mr Dhar also made a concession.  He accepted that it came into existence for the purpose of the application made by the Claimant for a costs order against the Respondents.  It was “akin to a pleading because it set out the stall” of the Respondents ahead of the remedy and costs hearing.  That is a helpful way of filling the gap in language for there are now no pleadings in the civil courts and there have never been pleadings in employment tribunals.  In one form or another, whether by a claim, a response or further information, a party is required to make a statement of their case before any employment tribunal hearing.  It was in the same form as the Claimant’s letter, i.e. it was sent by the representative to the Employment Tribunal to let it know what issue the party wishes to raise, and it was copied to the other side’s representative.  The application foreshadowed by the Claimant’s solicitors on 22 November 2006 was duly made on 29 November 2006.  Some of the material contained in the Respondent’s costs letter is dealt with in the substance of the remedy hearing and attention is directly focussed upon the Claimant’s grounds and the Respondent’s response in paragraphs 46 to 50.  The Claimant’s case was upheld and, unusually, an award of costs was made to the extent of 50 per cent as against the Trust.  No evidence was given at the remedy hearing nor during the part of it dealing with costs, the parties agreeing to proceed by way of submissions alone, and the Tribunal accepting that.

16.	Mr Dhar’s contention is that it was an act of discrimination and victimisation which should be heard.  Mr Kempster’s position is the same:  the letters had absolute immunity.  

Discussion and conclusions

17.	The rules relating to absolute immunity for legal proceedings were restated by Devlin LJ in Lincoln v Daniels [1962] 1 Q.B. 237 at 258, where he said this:

“The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories.  The first category covers all matters that are done coram judice.  This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence.  The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define.  It is based on the authority of Watson v M’Ewen, in which the House of Lords held that the privilege attaching to evidence which a witness gives coram judice extended to the prerecognition or proof of that evidence taken by a solicitor.  It is immaterial whether the proof is or is not taken in the course of proceedings.  In Beresford v White, the privilege was held to attach to what was said in the course of an interview by a solicitor with the person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings.”

Mr Kempster contends that his case falls within Devlin LJ’s second category.  Mr Dhar “had some difficulty with Devlin LJ’s second category” and it was illogical to construe it as covering all documents brought into existence for the purpose of legal proceedings, as items in the third category would already be in the second.  He contends it falls into none.  But despite putting “everything” and “all documents” into the second category, Devlin LJ was quite clear that without the third category the absolute privilege granted in the two previous categories “might be rendered illusory” (page 260).  He went on to say this:

“I do not treat this principle as necessarily limited to the proofs of witnesses.  I think it might well cover, for example, instructions given by a party to his solicitor, going beyond matters to which the party could himself depose, for the preparation of a statement of claim or like document.”

18.	In Lincoln v Daniels it was held that proceedings of a disciplinary nature conducted by Judges of an Inn of Court into a barrister’s conduct were judicial and thus covered by the rule.  However, a letter written by a complainant to the Bar Council, which was not a step at that time in the judicial proceedings of an Inn, was not.  

19.	Devlin LJ’s first category was described by Lord Hope of Craighead as “the core immunity”:  Darker v Chief Constable of West Midlands [2001] 1 AC 435 HL at 446.  The question which arose in Lincoln v Daniels, Darker and other cases was whether the core immunity should be extended to statements and conduct made, to put it neutrally, in the setting of legal proceedings but not in the courtroom.  In Darker a claim was made for absolute immunity of material which had been fabricated by police officers in the course of an investigation.  The investigatory process could not fairly be said to form part of the police officer’s participation in the judicial process which was a Crown Court trial, in which they did not give evidence for the proceedings were stayed as an abuse of process.

20.	It is common ground in this case that Employment Tribunal proceedings are judicial proceedings, based upon the statement of the law in Heath v Commissioner of Police for the Metropolis [2005] IRLR 270.  Auld LJ said this:

“… there is no basis for the proposition that the absolute immunity rule only attaches to defamatory statements. As the employment tribunal well described … and as the Employment Appeal Tribunal also found, it attaches to anything said or done by anybody in the course of judicial proceedings whatever the nature of the claim made in respect of such behaviour or statement, except for suits for malicious prosecution and prosecution for perjury and proceedings for contempt of court.  This is because the rule is there, not to protect the person whose conduct in court might prompt such a claim, but to protect the integrity of the judicial process and hence the public interest.  Given that rationale for the rule, there can be no logical basis for differentiating between different types of claim in its application.  The width of its application in this respect has been judicially stated many times, most notably in:  Munster v Lamb (1983) 11 QBD 588, CA per Fry LJ at 607-608;  Marrinan v Vibart [1963] 1 QB 528, per Sellers LJ at 535 and per Diplock LJ at 538-539.”

The two issues in the case were whether disciplinary proceedings in respect of a civilian in the Police Service attracted absolute immunity and whether, even so, claims could be made in an Employment Tribunal of sex discrimination arising out of the police disciplinary proceedings.  It was not disputed in the case that Employment Tribunals are judicial proceedings.  It was held that the disciplinary proceedings under the Police Regulations were also in that category and thus attracted absolute immunity.  And it was held that there is no exception to the absolute immunity rule for claims of sex discrimination.  The speech of Lord Hope in Darker was followed, including this:
“This immunity, which is to be regarded as necessary in the interests of the administration of justice and is granted to him as a matter of public policy is shared by all witnesses in regard to the evidence which they give when they are in the witness box.  It extends to anything said or done by them in the ordinary course of any proceeding in a Court of Justice.  The same immunity is given to the parties, their advocates, jurors and judge.  They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable cause…The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the grounds of negligence.”

21.	This does not mean that a person who has been discriminated against during the course of legal proceedings is without remedy.  The conduct of a party in an Employment Tribunal is relevant to the issue of costs which may be awarded for unreasonable conduct of the proceedings:  see rule 40(3).  An award for injury to feelings can be made and it can be increased by an award of aggravated damages, as occurred in the present case.  A claim or a response can be struck out on the grounds that the manner in which the proceedings have been conducted has been scandalous, vexatious or unreasonable:  rule 18(7).  Contempt of court proceedings can be made before the Queens Bench Division under RSC order 52:  Peach Grey & Co (a firm) v Sommers [1995] ICR 549.  An adverse inference can be drawn from failure to respond to a statutory questionnaire, or from evasive answers given in it and in other documents:  Race Relations Act 1976 s65(2)(b) and Dattani v Chief Constable of West Mercia Police UKEAT/0385/04.  These are of course in addition to criminal proceedings for perjury.

22.	Notwithstanding the firm rule enunciated by Auld LJ in Heath, Mr Dhar contends that it is implicit from two judgments of the House of Lords that claims are exigible under the anti-discrimination statutes in respect of matters taking place against a background of litigation.  He has to put it that way, for in neither case was absolute immunity raised and no authority was cited.  I agree that if absolute immunity were an available defence, it would have been raised at some stage during these two sets of litigation.  

23.	The first is Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065.  The claimant in that case, a serving police officer, presented a claim of race discrimination against the Chief Constable, the appropriate respondent in those days. That was a protected act for the purpose of establishing a claim of victimisation.  He then applied for a job with Norfolk Police, who sought a reference from the West Yorkshire Police, but the Chief Constable’s solicitor advised him against issuing a reference while proceedings were on foot “for fear of prejudicing his own case before the tribunal”.  The House of Lords overruled findings in favour of the claimant by in turn the Employment Tribunal, the EAT and the Court of Appeal.  The issue relevant to our case is the communication refusing the reference.  Since no findings were made in relation to the possibility of it attracting absolute immunity, it is necessary to look at what it contained.  It was a communication on legal advice by a party’s HR Department to a third party who was not engaged in the litigation between the Chief Constable and the claimant.  The refusal letter did not come into existence for the purposes of the proceedings in the Employment Tribunal.

24.	In the second case, Derbyshire v St Helens Metropolitan Borough Council [2007] ICR 841 HL, letters were written by an employer during the course of equal pay proceedings brought by the claimants.  The letters contained threats.  They were uttered to the employer’s workforce who had accepted settlements of equal pay claims or withdrawn them, on the one hand, and also to the claimants.  The House of Lords upheld the judgment of the Employment Tribunal, the EAT and a minority in the Court of Appeal (Mummery LJ) on the ground that while an employer’s honest and reasonable conduct in the course of its defence or in the conduct of settlement negotiations would not normally constitute a detriment for the purposes of a victimisation claim, these letters had gone too far.  These letters were expressly distinguished from the kind of letter which might be written between solicitors setting out “in appropriately measured and accurate terms, the financial or employment consequences of the claim succeeding, or the risks to the employee if the claim failed, or terms of settlement…” (per Lord Neuberger at paragraph 68).  These letters however were written by the employer directly to the employees and they were “likely to frighten one not accustomed to legal controversy” ibid para 55(d) citing the finding of the Employment Tribunal.  

25.	In my judgment, those two authorities do not assist in the resolution of this appeal.  The best that can be said is that absolute immunity was not argued in respect of the two letters to employees in Derbyshire, or the letter between HR Departments in Khan.  It is necessary to turn to the principles set out by Devlin LJ and their application to the two letters in the present case.  

26.	I will start with the costs letter.  In the light of Mr Dhar’s concession that it is akin to a pleading and sets out the Trust’s case, it plainly falls within Devlin LJ’s second category.  It is a pleading or another document brought into existence for the purpose of the proceedings.  It is directed by the representative of the Trust to the Employment Tribunal.  It is the Trust’s response to the application made by the Claimant to the Employment Tribunal and copied to the Trust’s representative.  The Claimant’s application was heard by the Employment Tribunal, and the Trust’s response in the costs letter was the subject of scrutiny and criticism:  see paragraphs 48 and 49.  The Tribunal upheld the Claimant’s application and found the Trust unreasonable.  It then exercised its discretion to make an award and did so to the extent of 50 per cent of the Claimant’s costs.  Although no witness evidence was heard at the remedy hearing, reliance was placed on the evidence which was heard at the liability hearing, of which the remedy hearing is properly to be regarded as a continuation.  If a witness for the Trust, or the Second Respondent himself, had given evidence in accordance with the costs letter, for example indicating what his or their “belief” was, it would have been protected under the first category.  The finding on costs is inextricably linked to the material which was placed before the Tribunal at the liability hearing.  Absolute immunity cannot depend upon the physical presence of a witness at a resumed hearing, or not.  Similarly, it must protect the advocate advancing the point contained in the costs letter when it is agreed that no live evidence is to be called by either side.  Since modern litigation requires the cards to be face up on the table, a skeleton argument, or something “akin to a pleading” in an Employment Tribunal is a necessary precursor to the presentation of argument or evidence on the point.  Under the CPR it must contain a statement of truth. That is precisely what the costs letter was.  It is protected by absolute immunity within the second category.  

27.	The disclosure letter is of a slightly different character.  It is not directed to the Tribunal and it cannot really be said to be a “pleading” but Mr Dhar accepted that it came into existence for the purposes of giving effect to the CMD.  Again, modern litigation requires representatives to collaborate in the collection of documentary evidence to form the bundles for a hearing; more so where directions are given to this effect.  A mechanism is available to challenge a refusal to disclose documents by an application to the Tribunal for an order.  I have to assume that the letter is capable of constituting an act of direct discrimination, or of victimisation.  In the light of Mr Dhar’s concession, the point is unarguable.  The letter came into existence not only for the purpose of the proceedings but was pursuant to a direct order of the Tribunal in relation to disclosure and bundle preparation.  As it happened, the refusal to disclose the material in the investigation appears to have been short lived for evidence was given before the Employment Tribunal about this.  In her successful costs application, the Claimant criticised the response of the Respondents to the Claimant’s grievance.  The Tribunal accepted that criticism and made the award.  Although not necessary for this judgment, it must at least be arguable that the Tribunal took into account when deciding the costs application the Respondents’ attitude to the disclosure of the grievance material.  In any event I hold that the disclosure letter fell within the second category and attracted absolute immunity. If it were not excluded by reason of absolute immunity, I have no doubt that it would fall within Lord Neuberger’s category of reasonable and honest communications between representatives for the purposes of preparing for a trial, and so would be a defence to a victimisation claim. But that is not the stage which we have reached in this appeal.

The Third Category
28.	Mr Kempster did not advance a case for the third category. I would need powerful argument to agree with Mr Dhar that a Devlin judgment would want for logic; nor did that occur to the House of Lords in Darker.  Without deciding, I would be minded to hold that the two letters were like “instructions given by a party to his solicitor, going beyond matters to which the party could himself depose, for the preparation of a statement of claim or like document” (para 17 above). 

Result
29.	I would very much like to thank both Counsel for their succinct arguments.  The appeal is allowed.