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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Prey v National Australia Group Ltd [2007] NIIT 77_04 (27 June 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/77_04.html Cite as: [2007] NIIT 77_04, [2007] NIIT 77_4 |
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CASE REF: 77/04
CLAIMANT: John O'Prey
RESPONDENT: National Australia Group Limited
The decision of the Tribunal is that:-
(a) Paragraphs 8 – 11 and 12 – 32 of the claimant's said witness statement are ordered to be struck out, on the grounds that the paragraphs contain evidence which is inadmissible in proof of the claimant's claim; other than those parts of the said paragraphs which make reference to the claimant's previous proceedings to the Fair Employment Tribunal, which are relied upon by the claimant as the 'protected act', in relation to his claim of victimisation, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998, but excluding reference to the detailed subject matter of those proceedings.
(b) The claimant is ordered to exchange with the respondent's representative, an amended witness statement, prepared in light of and having regard to the above decision, on or before 17 August 2007.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.
The respondent was represented by Mr J O'Hara, Queen's Counsel, instructed by Jones & Cassidy, Solicitors.
Reasons
"(i) Whether the respondent's application to strike out and not admit in evidence, at the substantive hearing of this matter, certain parts of the claimant's witness statement, to which the respondent objects, should be determined at the pre-hearing review and not by the Tribunal conducting the substantive hearing?
(ii) If the answer to the first issue is that the said application of the respondent should be determined at the pre-hearing review, whether the said application should be granted or refused."
"(d) A witness statement must be a complete statement of the evidence that the witness wishes to give to the Tribunal. A witness will not be permitted to add to his statement without the consent of the Tribunal. Consent will only be given where there is good reason for doing so.
(e) Each witness statement will be read aloud to the Tribunal, unless the Tribunal considers that it is inappropriate to do so.
(f) The witness statements will not normally be read by the Tribunal prior to the commencement of the hearing, unless the parties are otherwise informed."
Unlike the situation in Great Britain, witness statements, and Orders for their preparation and exchange, have not been a feature of civil litigation in this jurisdiction. Indeed there is no equivalent to Rule 9(2) (r) of the Rules of Procedure, in the Rules of the Supreme Court (Northern Ireland) 1980 or in the County Court Rules (Northern Ireland) 1981. In Great Britain, the power to order preparation and exchange of witness statements has for a long time been a feature of all civil litigation, not least in employment tribunals; and detailed rules for the preparation and exchange of such statements to be used in civil litigation in the Courts are to be found, inter alia, at Part 32 of the Civil Procedure Rules. In Great Britain, a similar Rule to Rule 9(2) (r) of the Rules of Procedure can be found in Rule 10(2) (s) of the Employment Tribunal Rules of Procedure set out in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Thus, I am satisfied that in considering issues relating to the use of witness statements, legal authorities relating to their use in Great Britain, whether in an Employment Tribunal or in other civil jurisdictions, are of persuasive authority in relation to their use in the Fair Employment Tribunal (but also in Industrial Tribunals where a similar Rule to Rule 9(2) (r) is also to be found under the appropriate Rules of Procedure governing Industrial Tribunals in Northern Ireland).
"So far as it appears appropriate to do so, the Chairman or Tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by statutory provision or rule of law relating to the admissibility of evidence in proceedings before the courts.
(b) Under Rule 13(3) of the Rules of Procedure, it is provided:-
"The Chairman or Tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings."
(c) Under Rule 46 of the Rules of Procedure, it is provided:-
"(1) Subject to the provisions of these Rules and any practice directions, a Tribunal or Chairman may regulate its or his own procedure.
(2) At … a pre-hearing review held in accordance with Rule 17(3), a Tribunal may make any Order which a Chairman has power to make under these Rules, subject to compliance with any relevant Notice or procedural requirements."
(d) Rule 17(2) of the Rules of Procedure, provides:-
"At a pre-hearing review a Chairman may carry out a preliminary consideration of the proceedings and he may –
(a) determine any interim or preliminary matter relating to the proceedings;
(b) issue any Order in accordance with Rule 9 or do anything else which may be done at a Case Management Discussion;
….
(d) consider any oral or written representations or evidence.
"The applicant, who would be perceived as a Roman Catholic and Nationalist, is employed as a Business Manager 111 with the respondents. In or around December 1997 the claimant brought fair employment discrimination proceedings against the respondent that were settled. The applicant believes that he has been victim of ongoing and continuing unlawful discrimination by the respondent contrary to the terms of the Fair Employment and Treatment (NI) Order 1998. Further and/or in the alternative, the applicant believes that he has been the victim of ongoing and continuing victimisation as a result of these original proceedings referred to above. The incidences of unlawful acts/omissions include, but are not necessary limited to, the matters highlighted below."
There was no dispute between the parties, in relation to these proceedings, the central factual issue relates to the claimant's alleged treatment in connection with the manner in which a certain audit, known as a Risk Asset Review, was conducted and which the claimant failed.
Mr Potter submitted that a witness statement was the equivalent of a person's examination-in-chief and, if no such witness statement had been ordered, as was the previous practice of the Tribunals, any such issue of admissibility would have been required to be determined by the Tribunal conducting the substantive hearing, whenever any such issue arose in the course of a witness' examination-in-chief; and that therefore such issues should not be considered and determined in advance of the substantive hearing at a pre-hearing review; but rather should be determined by the Tribunal, at the appropriate time, in the course of the substantive hearing.
It is correct that there have been a number of decisions of the Employment Appeal Tribunal where concern has been expressed of the dangers inherent in determining preliminary issues in advance of a substantive hearing (see: Harvey on Industrial Relations and Employment Law, Part T, Paragraph 734 and following).
Although witness statements have been a feature of civil litigation in Great Britain for many years, there seems to be an absence of specific authority in relation to the circumstances where it is appropriate to determine such an application, in relation to the contents of a witness statement ordered to be exchanged, in advance of any substantive hearing.
The case of Beazer Homes Limited v Stroude [2005] EWCib 265, albeit not a Tribunal case, was concerned, inter alia, obiter, with rulings which had been made in that case, on the admissibility of evidence, at a pre-hearing review; and whether these would have been better determined at a substantive hearing rather than at a separate preliminary hearing.
Lord Justice Mummery, stated:-
"Procedural point
6. Mr Stroude's application for a ruling on the inadmissibility of evidence of subjective intentions and negotiations was made under CPR Part 32.1(1) shortly before the summary judgment application was due to be heard. Mr Stroude made the summary judgment application under CPR 24 on the ground that BHL has no real prospect of successfully defending the action.
7. Under Part 32.1 the court has power to 'control the evidence by giving directions' as to the issues on which it requires evidence, the nature of the evidence which it requires to decide these issues and the way in which the evidence is to be placed before the court. Obviously the court can use its controlling power to direct that, on the basis of an exclusionary rule, certain evidence may not be given. It is also expressly provided in Part 32.1 that the court can use its power to exclude evidence that would otherwise be admissible, for example in order to save costs and to cut delays.
8. Although the Judge's initial instinct was that the ruling on evidence would properly have been better left to the Judge hearing the summary judgment application, he proceeded to determine it, as at the hearing both parties preferred him to rule on it at the earlier stage.
9. Although no procedural objection has been raised on the appeal and there is no question of this court rejecting the appeal on the procedural ground, I should express my reservations about the future use of the procedure adopted in this case.
10. In general, disputes about the admissibility of evidence in civil proceedings are best left to be resolved by the Judge at the substantive hearing of the application or at the trial of the action, rather than at a separate preliminary hearing. The Judge at a preliminary hearing on admissibility will usually be less well informed about the case. Preliminary hearings can also cause unnecessary costs and delays.
11. In the present case no good reason is apparent nor has one been advanced for departing from the usual practice. It has not been suggested that this is one of those cases in which the ruling on admissibility would dispose of or abbreviate the substantive application. The practical effect of a split proceeding seeking a pre-emptive ruling has been to hold up the hearing of the summary judgment application. It may have increased the costs of proceedings. I cannot see what advantage there was in it for anyone."
In a concurring judgment, Mr Justice Mumby stated:-
"42. Rimer J's initial instinct was that the issue of admissibility was best left to be decided by the Judge hearing the substantive application. I share my Lord's regret that Rimer J allowed himself to be deflected by the entreaties of the parties from what I am sure was a wise and prudent instinct. Too often, as we all know, and as turned out to be the consequence here, what appears initially to be a neat way of saving costs by taking a seemingly attractive preliminary point ends up saving the parties neither time nor money. Here the endeavour has cost the parties much delay and very substantial costs. …".
However, in considering whether such good reason has been established, in any particular case, it is also necessary, in my judgment, to have regard to Regulation 3 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, which provides as follows:-
"(1) The overriding objective of these Regulations and the Rules in Schedule 1 … is to enable Tribunals and Chairmen to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable –
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense.
(3) A Tribunal or Chairman shall seek to give effect to the overriding objective when it or he –
(a) exercises any power given to it or him by these Regulations or the Rules in Schedule 1 …;
(b) interprets these Regulations or any Rule in Schedule 1 …."
(4) The parties shall assist the Tribunal or the Chairman to further the overriding objective."
In this context, I was informed by Mr O'Hara that, if the respondent is required to respond to the disputed paragraphs of the claimant's witness statement, before doing so, this will require considerable investigation by the respondent and/or the preparation of a considerable number of witness statements in response, which exercise would be most unlikely to be able to be completed to enable the proceedings to be commenced in September 2007; and would require him, in all likelihood, to have to seek an adjournment to allow the above tasks to be carried out. Secondly, he submitted that, if the evidence contained in the disputed paragraphs of the claimant's witness statement was found at a substantive hearing to be inadmissible, but the respondent had been required to respond to the said paragraphs, not only would the hearing of this matter have been delayed but the respondent would have been put to considerable costs, inconvenience and expense. To fail to determine this issue in this particular case at the pre-hearing review, but to await a substantive hearing, was, in his submission, in light of the foregoing, contrary to the terms of the overriding objective.
If these proceedings had been conducted, without the use of witness statements, then clearly any such decision an admissibility of evidence would have had to await determination by the Tribunal conducting the substantive hearing. If that Tribunal decided that such evidence should be admitted, and the respondent was taken by surprise, then there would be the inevitable application for adjournment of the proceedings. One of the advantages of the use of witness statements is that neither party should be taken by surprise. But, in an appropriate case, it also allows a decision to be taken, in advance of the substantive hearing in relation to whether some particular evidence is inadmissible and should be excluded from a witness statement and to avoid a party having to make a detailed response to such evidence and the expense and inconvenience associated with such as exercise.
In many cases, I have no doubt that it may be considered, after considering such an application, that determination of the issue should still be left to the Tribunal conducting the substantive proceedings; and, in particular, where it is considered that, in order to determine such an application relating to admissibility of evidence, the Chairman does not consider that he is sufficiently informed about the proceedings to make an appropriate decision at that stage (see further Beazer Homes Limited v Stroude).
Indeed, if in an appropriate case, a respondent is required by the Tribunal to respond to a claimant's witness statement, with the consequences referred to by Mr O'Hara in this case, this requirement must outweigh any issue of expedition in order to ensure fairness.
In the course of his judgment, in the Anya case, after reviewing the authorities, Sedley LJ made clear that events, prior to the allegedly discriminatory acts, could be admissible as evidence of the discrimination in circumstances where such evidence might tend to prove the case:-
"Very little direct discrimination today is overt or even deliberate. The Guidance from the case law tells Tribunals to look for indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias."
However, in the course of his judgment, Sedley LJ expressed some caution about the width of the above principle:-
"The temptation for the complainant and his advisers, in these circumstances, is to introduce into the case as many items as possible as material from which the Industrial Tribunal might make an inference that 'racial grounds' are established. The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inference of racial grounds, eg non-racial explanations for his acts and decision. The result of this exercise is that the parties and their parties may confuse each other (and the Tribunal) as to what the Tribunal really has to decide; as to what is directly relevant to the decision which it has to make and as to what is only marginally relevant or background. It is a legitimate comment that in some cases of race discrimination so much background material of marginal evidence is introduced that focus on the foreground is obscured, even eclipsed. In practical terms this may lead the case to run on and on and for many days or weeks. In the experience of this Tribunal, the longest cases heard in the Industrial Tribunals are cases of racial discrimination."
Equally, in Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487, Browne Wilkinson LJ, as he then was, stated:-
"Having said that we are very conscious of the great dangers of opening too widely the ambit of an enquiry under the Race Relations Act. If this is done and not controlled, Industrial Tribunals will be faced with numerous issues on matters only indirectly relevant to the main issue. This in turn would lead to long and complicated hearings and great expense and inconvenience to the respondents. It is not in the best interests of those who are being racially discriminated against that the protection of their rights before the Tribunals should become a matter of great expense and complication. The end result of so doing would be to render the legal redress they have difficult and expensive to obtain. In the circumstances there is a very heavy burden on legal advisers, the Commission for Racial Equality and the Equal Opportunities Commission to ensure that matters of the kind that we have had to consider in this case are not introduced into a case, except where they are satisfied that there is a real probability that they will affect the outcome. This judgment should not be treated as a charter for wholesale allegation of subsequent events."
It is of some relevance, in my judgment, that at no time in the 'pleadings' in these proceedings and prior to the exchange of the witness statement had the claimant sought to rely on these events in proof of his claim of unlawful discrimination and/or victimisation in these proceedings. In addition, it is clear that these previous proceedings were settled and that, following the settlement, the said claims were withdrawn and subsequently dismissed by the Tribunal upon such withdrawal. In such circumstances, I am not satisfied that evidence relating to the detail of the subject matter of those claims can be properly admissible in proof of the claims, the subject matter of these proceedings. In addition, apart from any issue of relevance, in light of the said settlement and subsequent dismissal, issues of estoppel and res judicata would also appear to arise. Further, for the purposes of the claim of victimisation, it is the fact of bringing the previous proceedings, not the detailed subject matter of same which is relevant to proof of the 'protected act'.
None of these alleged actions, prior to the exchange of the witness statement; in December 1996 have been the subject matter of any complaint by the claimant of unlawful discrimination on the part of the respondent. Further, these matters had not been referred to in the 'pleadings', either in the originating application or in replies to particulars as matters upon which the claimant wished to rely in proof of the claim, the subject matter of these proceedings. Indeed, in the course of submissions, Mr Potter did not dispute that none of these matters had been raised, in the course of the internal investigation carried out by the respondent into the matters, which are the subject matter of these proceedings. It was also apparent from the claimant's witness statement that, following the settlement of the previous proceedings, the claimant had had a meeting with the Head of Personnel in or about 1998, at which he had undertaken that, if he had any future problems, he would discuss these with the Head of Personnel first. Again it was not disputed, in the course of submissions, that the claimant, despite the said agreement had not raised any of these matters with the Head of Personnel.
In the said paragraphs, the claimant referred to the failure of the respondent to offer him voluntary redundancy but also concerns that he had with questions asked of him as part of an 'interview' process, which stated that he had been required to take part in for his then existing post. In the course of submissions at this hearing, Mr Potter accepted that, despite their inclusion in this statement as indicators, the claimant in fact was no longer seeking to rely on these matters in proof of the claimant's claim in these proceedings. Mr Potter then subsequently confirmed that the claimant was only seeking to rely on the references, in the said paragraphs, to those alleged actions of the respondent relating to promotion, grades and portfolios, arising in the period 1998/2000, and which the claimant presumed, in the absence of any explanation, amounted to unlawful discrimination on the part of the respondent and were therefore relevant indicators, as set out in the Anya judgment.
I noted, in particular, not only was there no previous complaint about these said actions, that, even in the witness statement, there was no express allegation by the claimant, in relation to the said matters relied on as indicators, the respondent had been involved in unlawful discriminatory conduct. Mr Potter submitted that this could not be done, in the absence of any response by the respondent's witnesses. He further submitted that, in light of any explanation given by the respondents, in the course of any witness statement made in response to the said matters, that he was entitled, in any supplementary witness statement made by the claimant, to set out the precise respects in which the claimant contended such conduct had been unlawful discriminatory conduct.
In the absence of any previous complaint about any of these matters nor any indication of any reliance upon them in proof of the complaint, the subject matter of these proceedings, prior to the exchange of the claimant's witness statement, I have come to the conclusion that the evidence, in relation to these matters, as set out in Paragraphs 11 – 32 of the claimant's witness statement, are not appropriate indicators which can be relied upon by the claimant in proof of his claim of unlawful discrimination; are therefore inadmissible and should be struck out and thereby excluded. It is to be noted that, prior to the exchange of the witness statement, the claimant had numerous opportunities to raise these matters, including during the course of the internal investigation, and the exchange of the 'pleadings' in this matter. In addition, the claimant had the ability to raise such matters with the Head of Personnel; but failed to do so. In the circumstances, I do not consider that the respondent should be required to respond, in his witness statement, to the various matters set out in Paragraphs 11 – 32 of the claimant's witness statement. I consider that by seeking to introduce these matters at this late stage, the claimant has fallen into the very trap which the authorities, as set out above, have warned against.
Chairman:
Date and place of hearing: 27 June 2007, Belfast
Date decision recorded in register and issued to parties: