Appeal No.	 EAT/320/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR R JACKSON
MRS J M MATTHIAS

MR A WILLIAMS-KEY	APPELLANT

ANITE SYSTEMS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	
For the Respondents	MS M TETHER
(of Counsel)
Messrs Stevens & Bolton
Solicitors
1 The Billings
Walnut Tree Close
Guildford
GU1 4YD	

	JUDGE PETER CLARK:	The appellant, Mr Williams-Key, commenced employment with the respondent, Anite Systems Ltd on 1st February 1985. He remains in the employment but has been unable to work since 11th March 1997 due to Chronic Fatigue Syndrome or M.E.

	On 27th October 1997 he presented an Originating Application to the Bristol Industrial Tribunal complaining of breach of contract, unauthorised deductions from wages and disability discrimination.

	It is part of his case that he is contractually entitled to certain specified benefits under a Permanent Health Insurance [“PHI”] scheme, and that he is not receiving that to which he is entitled.

	In order to further that contention the appellant applied to the Industrial Tribunal for discovery of all documents in the respondent’s possession or power relating to the PHI taken out by them for their employees and in force at any time from 1st July 1995 to 27th October 1996. An order in those terms was made by the Regional Chairman, Mr M E Woods, sitting at Bristol on 12th December 1997, to be complied with by the respondent by 1st January 1998. That order, as amended, was promulgated on 18th December.

	On 23rd December the respondent purported to comply with that order by sending copies of certain documents to the appellant. He did not accept that proper discovery had been given, and for the detailed reasons which he gave in a letter dated 30th December 1997 he asked for further PHI documents, warning that if such documents were not received by 9th January 1998 he would apply to the Industrial Tribunal for an order striking out the respondent’s Notice of Appearance.

	Having received no reply to that letter he did so apply to the tribunal by letter dated 9th January 1998 for a strike-out order.

	On 4th February 1998 the respondent’s solicitors provided further discovery. However, at a hearing before a second Chairman, Mr J H Croom-Johnson, sitting at Bristol on 10th February 1996, the appellant successfully argued, based on documents which had already been disclosed by the respondent, that the respondent had still not provided discovery of PHI cover arranged with a provider, UNUM, by the respondent’s parent company, Cray Group or Cray Electronics. Despite this finding, to the effect that the respondent had still not complied with Mr Wood’s order, Mr Croom-Johnson declined to make a strike-out order under the provisions of r.4(7) of the Industrial Tribunal Rules of Procedure, but gave the respondent one last chance to provide proper discovery, failing which he directed that the hearing would be reconvened for the respondent to give evidence to show cause why their Notice of Appearance should not be struck out. The fresh discovery order which he made is dated 18th February 1998, and required compliance within 14 days.

	Against Mr Croom-Johnson’s refusal to make a strike-out order on 10th February the appellant now appeals. He has not felt able to appear before us today, but relies on a closely reasoned written submission which we have considered.

	His principal contention is that the Chairman misunderstood or misapplied the facts relating to the respondent’s contumacious behaviour. He relies upon the principle to be found in the Court of Appeal decision in Landauer Ltd v Comins & Co reported The Times 7th August 1991 for the proposition that where there is contumacious behaviour, for example, deliberate suppression of a document or documents, it will be open to a tribunal to debar a respondent from defending even although a fair trial of the action may still be possible. We note that that decision was considered by Wood J at paragraphs 19-20 of his judgment delivered in the case of National Grid Co Plc v Virdee [1992] IRLR 556, a case to which the Chairman was referred. The appellant submits that there was here overwhelming evidence of contumacious conduct on the part of the respondent. 

	We should at this stage deal with the appellant’s application to adduce fresh evidence before us, namely the respondent’s letter dated 25th February 1998, which we understand enclosed a copy of the Group PHI scheme identified in Mr Croom-Johnson’s order. He submits that this proves that the respondent was attempting to avoid proper discovery. In our judgment it is inappropriate to permit such further evidence to be adduced on appeal, applying the principles laid down by this tribunal in Wileman v Minilec Engineering Ltd [1988] ICR 318. If such further discovery is inadequate, it will be for the appellant to restore the strike-out application in accordance with Mr Croom-Johnson’s order of 18th February 1998.

	It seems to us that the short answer to the appellant’s primary submission is that despite the point being clearly raised by the appellant in the course of his written submission placed before the Chairman, the Chairman did not find that there was contumacious conduct on the part of the respondent. That was a matter for him. We cannot and should not substitute our view of the facts, even if it were different, from that taken by the Chairman.

	In our judgment the Chairman was entitled to take the course which he did in the proper exercise of his discretion. We are reminded by Ms Tether, who appears on behalf of the respondent today, of our limited powers to interfere with the making of interlocutory order by the Industrial Tribunals. See Carter v Credit Change Ltd [1979] ICR 908, 918B-G and 919C-H per Stephenson LJ. We are unable to characterise the Chairman’s conclusion as perverse in the sense or senses there set out, as the appellant submits in the alternative. In these circumstances we shall dismiss this appeal.