Appeal No. EAT/1272/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 November 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
(IN CHAMBERS)

MR V M S BRUCE	APPELLANT

CHARLES FELLOWES PARTNERSHIP	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF APPELLANT	
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF RESPONDENTS	

	MR JUSTICE MORISON (PRESIDENT):   Mr Bruce sought from an Industrial Tribunal certain Interlocutory Orders in relation to a complaint which he has brought against a firm of employment recruitment consultants.  He has brought his complaint under the Disability Discrimination Act 1995 and alleges, effectively, that the Respondent company has discriminated against him on the grounds that he is disabled.

	The applications which he made related to further and better particulars and discovery.  The hearing is due to take place on 1 December 1997.  The Tribunal, in a letter sent by the Industrial Tribunals on the Chairman’s behalf to Mr Bruce, refused to order the further and better particulars and discovery asked for by Mr Bruce.  The Tribunal said in their letter to Mr Bruce dated 27 October 1997:
“If the Respondent fails to supply documentation which is relevant to its defence then the Tribunal Hearing the case will no doubt take that into consideration.
Additionally if either party supplies documentation at a late stage that takes the other party by surprise it will be open for that party to ask the Tribunal for an adjournment at the hearing which, if granted, may lead to an Order for Costs in respect of the day thrown away.
In respect of the matters referred for Further and Better Particulars they seem to be matters of evidence that can best be put in cross-examination at the hearing.
This seems to be a case in which it would be of benefit to both parties to have the case heard on the day for which it is listed without the delay that might be caused by interlocutory procedures as the issues appear to be factual and better resolved by a Tribunal at a full hearing than by correspondence.”

	By a Notice of Appeal dated 7 November 1997 Mr Bruce made six complaints.  Firstly he says that the Chairman indicated that documentation must not be supplied at a late stage when he could, and should, have set a date by which the documentation should be supplied.  

	It seems to us that that is a reasonable complaint to have made and to this extent alone, I will allow the appeal and order that there be an exchange of documentation between the parties no later than Thursday 27 November 1997 at 5.00 p.m.  

	In relation to the second ground of appeal, which relates to the particulars, it is submitted by Mr Bruce that the particulars would have narrowed the issues and he gives us an example, a particular request, which he says will help, namely to know on which statute the Respondents is relying.  We do not consider that any of the requests for particulars would be helpful to the resolution of the issues which will have to be determined.  We can deal with them in this way.  It seems to us that requests 1, 2(c), 2(d) 2(e) 2(g) 3, 4, 5, 6 and 8, are all matters of evidence.  In relation to 2(b) that is a matter for disclosure of documentation.  In relation to paragraph 9 it seems to me that the request was both evidential and related to matters which were irrelevant.  In relation to 2(a) it seems to me that that is a matter which is purely for argument.

	Accordingly, bearing in mind that the supervisory role of the Employment Appeal Tribunal in relation to interlocutory matters is of restricted ambit, in that there is a wide margin of appreciation accorded to Industrial Tribunal Chairmen in arriving at such decisions, since they are matters of discretion, I am not persuaded that there is any error of law in the Tribunal’s decision, nor that the decision which he arrived at in that respect was perverse.

	It seems to me, to some extent, that Mr Bruce has misunderstood the purpose of particulars.  I do not consider that what he has asked for will assist.  

	Insofar as the discovery is concerned, it seems to me that the Tribunal Chairman is better able to decide whether to make an order for discovery, having regard to the matters raised than this Court.  It seems to me that the way he has dealt with this was entirely sensible, since it leaves open the possibility that in due time an application for disclosure of specific documents may become necessary, and if there is any wasted time as a result of a non-disclosure of documents, then the Tribunal can deal with it by making costs’ orders.

	As to whether a witness summons should have been issued, it would appear that the Industrial Tribunal has not dealt with this application in terms.  Whether a witness summons is appropriate will have to be determined by the Chairman at the hearing itself.  As I see the position at the moment, this is a case where an Applicant wishes to subpoena one of the Respondent’s own witnesses and having regard to the rules as to examination and cross-examination, it may well be that it would not be in Mr Bruce’s interests that he should call somebody from the organisation against whom he is making a complaint.  But that will have to be determined by the Industrial Tribunal, no doubt when the hearing commences on 1 December 1997.

	Accordingly despite the written submissions from Mr Bruce, which I have read, I am not persuaded that there is any error of law in the discretion that has been exercised by the Industrial Tribunal Chairman and subject to the one point which I have mentioned, I dismiss the appeal.