Both parties applied for the case to be adjourned because of difficulties on the issue of disclosure of materials. The judge refused to adjourn the hearing and instead allowed 6 days for the hearing instead of 2. This created difficulties for both parties since counsel that had already been instructed could not extend their presence in court by 4 days. The only way in which the parties could comply with the new listing was to instruct new counsel, incurring extra expense and affecting the continuity of the case.

The EAT upheld the appeal, saying that the imposition on both parties of a further 4 days so close to trial was wrong in principle. The Employment Judge had failed correctly to balance the overriding objective: although a trial as early as possible was to be preferred for a claimant seeking to vindicate his rights, there were other important principles in play. The judge therefore adjourned the hearing and suggested that the space created as a result of his order could be used for the parties and the Tribunal to have a case management discussion on the issue of disclosure.

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Appeal No. UKEAT/0212/10/DM
UKEAT/0213/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 22 April 2010

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

CHANCERYGATE (BUSINESS CENTRE) LTD (APPELLANT)

MR P A JENKINS (RESPONDENT)

REVISED

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant MR JONATHAN COHEN
(of Counsel)
Messrs Berwin Leighton Paisner LLP Solicitors
Adelaide House
London Bridge
London
EC4R 9HA

For the Respondent MR GILES POWELL
(of Counsel)
Messrs Cater Leydon Millard Solicitors
68 Milton Park
Abingdon
Oxfordshire
OX14 4RY

SUMMARY
PRACTICE AND PROCEDURE
Postponement or stay
On an expedited appeal, the Regional Employment Judge wrongly refused a joint application by the parties to postpone a 2 day hearing.  The case was listed for 2 days and the judge imposed a 6-day listing. It was not in accordance with the overriding objective that the parties lose their counsel and instruct new counsel on the eve of the trial, and while there remains incomplete disclosure.  Hearing adjourned and the Employment Tribunal invited to use listing to conduct a CMD on disclosure issues.

HIS HONOUR JUDGE McMULLEN QC

1. These are appeals from decisions made by Regional Employment Judge Gay in case management at Watford Employment Tribunal.  The parties will be described as they are before the Tribunal.  Both parties object in identical terms to the decisions. Since I am setting aside case management orders it is right I give fuller consideration than is usually required by PD para 15 for a Judgment by consent. But that is what it is.

2. The appeal was listed at 2 hours’ notice. Tomorrow the hearing of the Claimant’s wrongful and unfair dismissal claim will start at Watford and is due to be heard for two days.  In accordance with orders of the Tribunal and agreement between the parties, steps have been taken in case preparation without any criticism made by either of the other. Without a breach of the management directions, the case has grown more substantially than either party foresaw.

3. The witness evidence is now considerable.  An order has not been sought for further disclosure but the state of play at the moment is that the Claimant is unable properly to prepare for the hearing in the absence of disclosure of materials.  On the face of the material before me there is a real issue about disclosure and until that is resolved it is unfair to try this case.

4. The parties very sensibly made a joint application to have the case taken out explaining the difficulties.  Regional Employment Judge Gay made three decisions in relation to this.  The first principally involves an elongation of the hearing.  That is commendable expedition in a user-friendly environment.  However, it creates this practical problem.  Counsel have been instructed and briefed for the two day hearing.

5. The Claimant’s counsel, Mr Powell, has been involved for some considerable period of time and has advised on two other aspects of the dispute between the parties.  He is briefed to attend tomorrow but cannot go beyond the two days which have been listed, so that the judge’s sensitive offer, put as a direction that the case will go on for as long as it takes up to six days, is of real practical difficulty to the Claimant.

6. As for the Respondent, Mr Cohen has been involved for less time but nevertheless is briefed for the case.  Providently the parties could not bank upon a successful appeal before me and so have had to follow what Judge Gay directed.  She was unsympathetic to the plea that there was no justification for extending the current two to six days, for that could easily be solved by the instruction of new counsel.

7. In the circumstances which have been outlined to me in much more detail than was put in the papers to the judge, there is very real merit in continuity of counsel, and unfairness in change.  The Claimant himself is funding this through insurers and there is a cap.  Out of that pot will have to come the additional expense of counsel as we speak reading into this case on the basis that it goes ahead with new counsel tomorrow and, therefore, there will be substantial waste of costs.  The Respondent’s costs too will be thrown away.

8. I am very reluctant to intervene on an interim decision on case management made by a very experienced Regional Employment Judge, see the approach taken in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA, particularly the observation by Longmore LJ that appeals on such matters will be rare and successful appeals rarer still.  However, there are occasions (see, for example, the Court of Appeal upholding my own judgment in CIBC v Beck [2009] IRLR 740) when interim decisions on the eve of trial can be overturned if they are wrong in principle.

9. In my judgment the judge has failed correctly to balance the overriding objective.  Commendable as it is to ensure as early a trial date as possible for a Claimant seeking to vindicate his rights, there are other important principles in play. This is a joint application. The parties have the right to choose appropriate counsel and to have a fair trial when all the cards are on the table, that is the evidence is properly disclosed.

10. The judge was entitled to take into account the queue of parties at Watford, but as both counsel explained to me today, there will be other cases so there should be no hole in the list.

11. The real issue is that the judge did not give consideration to the impact of the change of dates from two to six.  A technical point was taken by both counsel as to the requirement of a Tribunal to give notice.  I would not be troubled by such technical points given that the appeal is underway, but they are entitled to notice under the rules, which they did not get.  The reality is that a new listing of six days has been imposed on these unwilling parties and the only way they can comply with that is at considerable expense by instructing new counsel. If the judge had simply refused the application, or adjourned the application to be made with the disclosure point at the start of the hearing, her decision would stand. The case would then either be adjourned, or go part-heard after the listed two days. But the imposition on the parties of the further four days so close to trial is wrong in principle.

12. There will be further difficulties in that the parties changing counsel will not know them.  Conferences have been held with their respective clients and it will not look right, it seems to me, for these clients the day before trial to instruct and have confidence in new counsel however competent and experienced they are. It seems to me that the worthy consideration of trying to get the Claimant’s case heard quickly, bearing in mind his dismissal was over a year ago, has taken precedence over a joint well-reasoned application to adjourn made responsibly by represented parties.

13. I also observe that there appears to be unfairness in the criticism of the parties for dragging their feet because there has either been compliance with the orders or an agreement between the parties as to a differing timetable.  It should not have been held against them when they came not long before the hearing date to ask for it to be postponed.  So, this emergency appeal will be allowed and the order for the case be listed tomorrow for six days will be set aside, and the hearing be postponed. It is not now practicable to start the trial even for two days.

14. Faithful to Judge Gay’s earnest hope that this matter be brought on for trial speedily, it seems to me that the principal dispute in this case, at the moment at an interim level, is over the documents.  There is now space at Watford as a result of the order I have made over the next two days. It is in everybody’s interest, that is the parties and Watford Tribunal, that the opportunity created by this order be taken to have a CMD on the disclosure point and I will leave to the parties how that operates in practice.  An application has to be drafted today and the Tribunal could make available time on Monday for a CMD of two hours.