Appeal No. UKEAT/0438/09/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 October 2009

Before
THE HONOURABLE MRS JUSTICE COX
(SITTING ALONE)

ICON DISPLAY LTD	APPELLANT

(1) MR D PAINE
(2) MR M PAINE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MATTHEW SHERIDAN
(of Counsel)
Instructed by:
Messrs LawBridge Solicitors
Unit 31A Folkestone Enterprise Centre
Shearway Business Park
Shearway Road
Folkestone
Kent CT19 4RH
	
For the Respondent	Written materials 	

SUMMARY
PRACTICE AND PROCEDURE:  Case management
Privileged material contained in pleadings submitted to ET.  Parties agree to references to this material being removed from the file but Tribunal reject an application for transfer to different tribunal after its removal. Appeal allowed and directions given as to removal of documents and transfer, based only on the particular facts of this case.

THE HONOURABLE MRS JUSTICE COX
1.	This is an appeal by the Respondents from an order of the Ashford Employment Tribunal, dated 22 September 2009, refusing their application for this claim to be transferred to Croydon for hearing, following removal from the file of all references to the privileged document which is at the heart of this appeal.

2.	The Respondents are represented today by Mr Sheridan of Counsel.  The Claimants’ solicitors have filed an Answer and submitted a helpful skeleton argument, but have indicated that in order to save costs they will not be attending this hearing and are content to rely upon the documents submitted.

3.	The relevant facts are these and I need refer only to such matters as are necessary for the issues arising on appeal to be properly understood.

4.	The two Claimants presented claims to the Tribunal alleging unfair dismissal.  In each claim, reference was made expressly to a privileged document.  The Respondents lodged grounds of resistance denying that the dismissal orders were unfair; explaining that the privileged document could only have been acquired by improper means; and indicating that they would seek a stay pending appropriate undertakings from the Claimants not to rely upon this document in the Tribunal proceedings.

5.	Correspondence between the parties followed and the Claimants’ solicitors agreed to undertake to deliver up the document and to proceed with the claims on the basis that no reference to it would be made thereafter.

6.	The Claimants then submitted entirely new Claim Forms to the Tribunal, which contained no reference to the relevant document, and the Tribunal was asked to make an order that these Forms be substituted for the existing ones.

7.	In the circumstances, the Respondents’ solicitors also invited the Claimants’ solicitors  to make a joint application to the Tribunal for the case to be transferred from the small hearing centre at Ashford to the Croydon Tribunal after all references to the privileged document, the original pleadings and all correspondence relating to them were removed from the file.

8.	The Claimants’ solicitors agreed to the latter part of that suggestion, that is, removal of all the material (for convenience referred to as the “offending material”) from the file, but they did not agree to transfer.  They stated that Ashford was more convenient for the Claimants, although they did not expand upon why they considered that to be the case.

9.	The Respondents, therefore, applied to the Tribunal themselves for such an order.  It is clear from their letter that the Respondents specifically requested that, before transfer, all the offending material should be removed from the file.  They also drew attention to the fact that the travelling distance and time for both Claimants was virtually the same, whichever Tribunal  heard the case, and pointed out that no evidence of inconvenience had been advanced by the Claimants and that it was in any event minimal, compared with the need to ensure a fair hearing to both sides pursuant to the overriding objective.

10.	The Tribunal’s response, dated 22 September 2009, was briefly expressed.  It said simply:
“Application refused.  If the matter is transferred to Croydon the file will be transferred and the risk of the Tribunal being tainted by privileged material is the same.”

11.	The Respondents then requested a review of the Tribunal’s decision, pointing out essentially (a) that the risk of the Croydon Tribunal being tainted by privileged material could be dealt with by removing that material from the file prior to transfer, (b) that the Tribunal’s decision did not address the issue of how to ensure that the offending material did not come to the attention of the Employment Judge and Tribunal members assigned to hear the case, (c) that there was no reference in the decision to the Tribunal having substituted the new pleadings for the offending ones and (d) that the decision did not in any event address the potential injustice to the Respondents resulting from any awareness on the part of the Tribunal members of the existence of the relevant documents.

12.	The Tribunal refused the application for a review, once again in succinct terms, stating that:
“There is no material risk that a tribunal would be tainted by knowledge of privileged material and if there were, a transfer to Croydon would not remove that risk.”

The Appeal
13.	In deciding whether or not to grant the Respondents’ application, the Tribunal was clearly exercising its discretionary case management powers under Rule 10 of Schedule 1 to the Employment Tribunal Regulations 2004.  As Mr Sheridan accepts, such decisions are challengeable only on what may loosely be called “Wednesbury” grounds, that is when the decision maker exercises the discretion under mistake of law, or in disregard of principle, or under a misapprehension to the facts, or where irrelevant matters were taken into account or relevant matters left out of account, or where the conclusion reached was outside the generous ambit within which a reasonable disagreement is possible, see Noorani v Merseyside TEC [1999] IRLR 184 at paragraph 32.  
14.	The Tribunal, when exercising these powers, must however seek to give effect to the overriding objective of dealing with cases justly, and must endeavour to ensure that a fair hearing is conducted, that being one which is fair to both sides.

15.	In the skeleton argument submitted on behalf of the Respondents, counsel has set out in some detail the legal principles underpinning the protection afforded to privileged documents of the kind concerned in this case.  It is unnecessary to refer to them here because the Claimants clearly do not take issue with them.  They have, in any event, agreed that the Claims should proceed to a hearing without any reference being made to the privileged document.

16.	The first ground of appeal is that the Tribunal simply failed to consider the Respondents’ request that the offending documents be removed from the Tribunal file.  I agree.  Reading the short response of the Employment Judge, dated 22 September, it would seem that he failed to consider, still less accede to, this request.  Had he done so, he could not have responded as he did, by stating that if the matter were transferred to Croydon, the file would be transferred and the risk of the Tribunal being tainted by privileged material was the same.  I agree, therefore, that the Judge erred in failing to have regard to a relevant consideration when considering how to deal with this case justly, namely the removal of the offending material from the file, to which the Claimants did not and do not object.

17.	The Judge’s response on refusing the application for a review raises a further concern in relation to the approach adopted in this case.  His reasoning, albeit briefly expressed, suggests that, even if the Tribunal knew of the privileged material, he considered there to be no material risk that its members would be tainted by such knowledge.  

18.	That in my view is unsustainable.  The risk that members of the Tribunal hearing this case would be influenced, even if only subconsciously, in their approach to the evidence by knowledge of this material cannot in my view be said to be insignificant.  In any event, it would undoubtedly offend the principle that justice should be seen to be done.  The Respondents’ perception, if they were unsuccessful at the hearing, that the Tribunal’s decision had been influenced in some way by their knowledge of the privileged material, is clearly a relevant factor, which should have been taken into account in considering their application.

19.	The Judge’s decision on 22 September was therefore, in my judgment, arrived at in error and this appeal must be allowed.  It is therefore unnecessary for me to consider the Respondents’ further grounds of challenge to the decision, namely the failure to take into account the need for the interests of justice to prevail over administrative inconvenience, and perversity, though for the reasons set out in counsel’s skeleton argument I have to say that there was some merit in the submissions being advanced in respect of these grounds.

20.	In disposing of this appeal, and in the exercise of my powers under Section 35 of the Employment Tribunals Act 1996, I shall order that there be removed from the Ashford Tribunal’s file, if indeed they are still there, the original pleadings and all documents and correspondence relating or referring to the privileged document. 

21.	The question of transfer to the Croydon Tribunal raises issues which I readily acknowledge would normally be the province of the Regional Employment Judge.  In this case, however, both to save time and because I am persuaded of the merits of the application to transfer, notwithstanding the Claimants’ resistance to it, I shall also order a transfer to the Croydon Tribunal pursuant to my Section 35 powers.  
22.	In so deciding, I have regard to the approach to the Respondents’ applications which has so far been adopted by an Employment Judge sitting in a small hearing centre at Ashford.  There are, as I understand it, usually no more than four and sometimes less, Tribunals sitting at that centre.  There is in my view no certainty that the Judge assigned will not have seen, or become aware, even inadvertently, of the existence of the privileged document and of the issues which have surrounded it.  Clearly, the offending documents have been, and perhaps still remain on the Ashford Tribunal file.

23.	I have regard to the fact that Croydon and Ashford are, in any event, both part of the London South Region.  I also have regard to the fact that no particulars of inconvenience which would be caused to either Claimant by transferring the case have been advanced.  It seems to me that any inconvenience would, in any event, be outweighed by the need to ensure a fair hearing for both parties and to deal with this case justly.

24.	I emphasise that, in so ordering, there is no point of principle which is established by this case.  The course I have adopted is one I consider to be appropriate in the particular and unusual circumstances of this case and it sets no precedent in respect of how future cases where such issues arise should be dealt with.

25.	For the reasons I have given, however, this appeal is allowed with the consequential directions set out above as to the future progress of these Claims.  I recognise that an unfortunate consequence of this judgment may be that the current hearing dates of 18 November and 19 November 2009 are lost, but I shall say no more about that because fixing future hearing dates is clearly a matter for the Regional Employment Judge.