THE INDUSTRIAL TRIBUNALS

CASE REFS:  5333/18
7185/18

CLAIMANT:			Marie Catherine Ansin

RESPONDENT:		Mango Direct Marketing Limited

DECISION ON A PRE-HEARING REVIEW

The Decision of the Tribunal is that:-

1.	It is ordered:-

	(a)	Stewart Lally and Susan Lally are each joined as second and third respondent, respectively, to these proceedings.

	(b)	Each of the newly joined respondents have leave to present a response to the Tribunal within 28 days of the date of this Decision.  

2.	It is further ordered that part of paragraph 40 of the witness statement of Stewart Lally is struck out and not to be admitted in evidence, as more particularly set out in paragraph 3.2 of this decision; and the said witness statement is to be redrafted and reserved on the claimant’s representative within 14 days of the date of this decision in accordance with the said Order, as set out above.

3.	The application to strike out the whole or part of paragraph 6 of the witness statement of Josephine Patterson is refused.

4.	It is further ordered that the respondent discover to the claimant within fourteen days of the date of the decision the documents set out in paragraph 4.3 of this decision.

5.	It is further ordered the time for compliance with the Order for Discovery dated 1 March 2019, as amended on 8 March 2019, is extended to 10.00 am on 18 March 2019.

6.	Further Case Management Orders were made for the listing of the substantive hearing in this matter at the conclusion of this Pre-Hearing Review, as set out at paragraph 5 of this decision.

Constitution of Tribunal:

Employment Judge (sitting alone):		Employment Judge Drennan QC

Appearances:

The claimant was represented by Mr C. Mallon.

The respondent was represented by Mr B. Mulqueen, Barrister at Law, instructed by Tughans Solicitors

REASONS

1.1	It was not disputed by the representatives, at the commencement of this hearing, that this pre-hearing review had been arranged, following the Case Management Discussion on 8 March 2019 and for the reasons, set out in the Record of Proceedings, dated 12 March 2019 of the said Case Management Discussion, to consider the following applications, on foot of the notice of hearing, dated 12 March 2019, the parties having agreed to short notice of the hearing, namely:-

	(1)	the claimant’s application for an order to join Stewart Lally and Susan Lally as the second and third respondent, respectively, to these proceedings;

	(2)	the claimant’s application for an order to strike out, in whole or in part, paragraph 40 of the witness statement of Stewart Lally and paragraph 6 of the witness statement of Josephine Patterson;

	(3)	the respondent’s application for an Unless Order against the claimant for failure to comply with the Tribunal’s Order for Discovery, dated 1 March 2019, as amended on 8 March 2019, of copies of certain bank statements, relating to bank accounts held by the claimant;

	(4)	the claimant’s application for an Order for Discovery and inspection of documents, set out in the claimant’s email, dated 7 March 2019.

	It was not disputed by the representatives that, pursuant to the rules of procedure, the Tribunal could make, at a pre-hearing review, any order that would normally be made at a Case Management Discussion.

1.2	At the commencement of the hearing, subject to what is set out below, the respondent’s representative indicated that the claimant had provided copies of bank statements, the subject of the amended order for Discovery referred to above.  However, in the course of discussion, it had become apparent, arising out of correspondence received from one of the banks, the subject of the said order, that there was a dispute between the representatives of the parties whether all relevant bank statements had been provided by the claimant on foot of the said Order.  In the circumstances, and for the avoidance of any doubt, it was agreed, and I so ordered, that the date for compliance with the said Order would be extended to 10.00 am on 18 March 2019.  In light of the foregoing, the respondent’s representative decided not to proceed, at this hearing, with his application for an Unless Order; but I gave the respondent leave to renew the said application after 18 March 2019, if it was considered necessary and appropriate.  In such circumstances, a further Case Management Discussion will be arranged to consider any such renewed application.

1.3	At the commencement of the hearing, both the claimant’s representative and the respondent’s representative indicated that, at the conclusion of the substantive hearing, but not at this hearing, each would be asking the tribunal to determine their respective applications for preparation time orders, in the case of the claimant, and an Order for Costs, in the case of the respondent.  I reminded both representatives that any such application for any such Orders requires to be made in accordance with the Rules of Procedure and setting out relevant details and reasons for any such Order to be made together with relevant schedule of preparation time/costs and how any such sum is made up.

1.4	I acknowledge that there has been considerable dispute between the parties in relation to interlocutory issues in this matter and which have been strongly contested, to date, both at Case Management Discussion and in correspondence by the parties and their representatives.  In this context, I remind the parties and their representatives of the terms of the overriding objective.  However, for the avoidance of any doubt and arising from discussion at the commencement of this hearing, I make it clear, for the record, that the claimant’s representative withdrew any suggestion, whether express or implied, of any improper conduct by the respondent’s representative in his conduct, to date, in relation to these proceedings.

2.1	In relation to the claimant’s application for an Order joining Stewart Lally and Susan Lally, as the second and third respondent to these proceedings, it was not disputed the said application was made by the claimant’s representative, pursuant to Rule 10(2)(j) of the Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution of Rules of Procedure) Regulations (Northern Ireland) 2005 (the Rules of Procedure) which said Rule allows the tribunal to make an Order making any person a respondent in the proceedings who the Employment Judge or tribunal considers may be liable for the remedy claimed (a Joinder Order).

	In view of my decision at this Pre-Hearing Review, it was not necessary for me to further consider Rule 10(2)(q) whereby a Joinder Order can be made in relation to any person whom the Employment Judge or tribunal considers has an interest in the outcome of the proceedings (see further Welsh v Bendel and Another [2012] UKEAT/0014/12 and Beresford v Sovereign House Estates and Another [2011] UKEAT/0405/11).

2.2	As set out above, pursuant to Rule 10(2)(j) of the Rules of Procedure the criterion for the joinder of a respondent is that he/she might be liable for the remedy claimed.  By contrast, in Great Britain, under the 2013 Rules of Procedure, which do not apply in Northern Ireland, the relevant Rule (Rule 34) states that the criterion is –:-

		“If it appears there are issues between the person and any of the existing parties falling within the jurisdiction of the tribunal which is in the interests of justice to have determined in the proceedings”

	This criterion, under Rule 34 of the 2013 Rules of Procedure, which applies in Great Britain, is clearly wider than Rule 10(2)(j) of the Rules of Procedure which applies in Northern Ireland; but, in my judgment this criterion under the 2013 Rules merely reflects the case law, which has been long established and still applies in Northern Ireland, as referred to later in this decision (see further for example Mist v Derby Community Health Services NHS Trust [2016] UKEAT/0170/15 in relation to Rule 34).

2.3	Apart from the specific Rules relating to joinder, as referred to above, a tribunal has always had power, under the Rules of Procedure, to join a respondent under the tribunal’s powers to regulate their own procedure.  In the case of Cocking v Sandhurst (Stationers) Limited [1974] ICR 650, Sir John Donaldson gave guidance, which is still relevant under Rule 10(2)(j) of the Rules of Procedure in Northern Ireland and Rule 34 of the 2013 Rules in Great Britain.

	The guidance stated:-

		“1.	They should ask themselves whether the unamended originating application complied with [Rules of Procedure].

		2.	If it did not, there is no power to amend and a new originating application must be presented.

		3.	If it did, the tribunal should ask themselves whether the unamended originating application was presented to the tribunal within the time limit appropriate to the type of claim being put forward in the amended application.

		4.	If it was not the tribunal had no power to allow the proposed amendment.

		5.	If it was the tribunal have a discretion whether or not to allow the amendment.  

		6.	In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistakes sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case maybe, to be claimed against.

		7.	In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case.  In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, the proposed amendment were allowed or, as the case maybe, refused.”

	This guidance has been followed in numerous cases in subsequent years, as such as Home Office v Bose [1979] ICR 481 and British Newspaper Corporation (North) Limited v Kelly [1989] IRLR 222.  It also has to be read in conjunction with the later guidance given by Mummery J in Selkent Bus Company Limited v Moore [1996] ICR 836, relating to amendments generally.  Mr Mulqueen properly acknowledged the Selkent v Moore guidance is, in essence, in similar terms to the case of Cocking, albeit in relation to amendments generally, where it is emphasised the issue of delay is a relevant but not determinative factor and, in particular, confirms that the paramount consideration, in relation to any such application, is the relative injustice and hardship in refusing or granting an amendment.  

	In Kelly, the Court of Appeal confirmed the injustice/hardship test in Cocking and confirmed that, as there are no statutory time limits in relation to the making of such an Order, such an Order should not be refused simply on grounds of delay.  The effect of delay was again emphasised to be merely a factor in the absence of such time limits, as referred to in Gillick v BP Chemicals Limited [1993] IRLR 437 and Linbourne v Constable [1993] ICR 698, both of which related to applications to amend by adding new respondents against whom new claims would be time barred.  Gillick also held that the fact that the two respondent companies were related was again only a factor to be considered in the exercise of the tribunal’s discretion.  In Watts v Seven Kings Motor Company Limited [1983] ICR 135, an application to join a respondent was allowed, even after the tribunal had reached its decision but subject, for example, to the newly joined respondent having the opportunity to enter a response.  

	In the context of this issue of amendment in these particular proceedings, the knowledge of the claimant, as a litigant in person and the recent involvement of her adviser/representative, as set out later in this decision, it is appropriate to note the judgment of Underhill J, as he then was in the case of Evershed v New Star Asset Management [2009] UKEAT/0249/09 when he stated, which was not challenged in the context of the subsequent appeal, as follows:

		“33 …. it is not the business of the tribunals to punish parties (or their advisers) for their errors.  In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could if he had been sufficiently careful got it right first time round.”

2.4	In relation to the claimant’s application for the said Joinder Orders against both Stewart Lally and Susan Lally, the proposed respondents are Directors of the respondent, Mango Direct Marketing Limited.  It was not disputed that, in joining Mr and Mrs Lally as respondents, this could only relate to the claimant’s claim of unlawful discrimination and not of unfair dismissal.  Mango Direct Marketing Limited as the claimant’s employer, is clearly the relevant respondent for the purposes of the unfair dismissal claim.  Further, it was not disputed, by the respondent’s representative, in the event of liability being established against Stewart Lally and/or Mrs Lally, no issues of vicarious liability would arise.

2.5	There is no doubt that there has been considerable delay by the claimant in bringing these applications for joinder of Mr and Mrs Lally.  The claimant’s first claim (case reference 5333/18) was presented to the tribunal on or about 6 March 2018 and her second claim (case reference 7815/18) was presented to the tribunal on or about 2 July 2018.  Indeed, as set out in the record of proceedings of the Case Management Discussion on 8 March 2019, dated 12 March 2019, the substantive hearing had been due to commence on 11 March 2019, but for these applications.  The claimant’s representative submitted that the reason the application had not been made earlier was because the claimant, as a litigant in person, had been unaware of her ability to join, as respondents, persons other than her employer, namely Mango Direct Marketing Limited.  It was not disputed by the claimant’s representative that the claimant had consulted, for advice, a firm of experienced solicitors in or about September 2018; but she emphasised that this firm had not come on record for the claimant and their advice had related only to the potential of bringing additional claims relating to victimisation and/or bullying.  I take into account that the claimant is a litigant in person but I do find it somewhat surprising that the claimant was not aware of her ability to join in her discrimination claims, persons other than the employer, given the ability that she has shown in conducting these proceedings herself, as set out in previous records of proceedings, prior to the coming on record of Mr Mallon as her representative on or about 8 March 2019.  Not without some hesitation, I have come to the conclusion that the claimant only decided to bring this application on 7 March 2019, following advice given to her by Mr Mallon on or about 1 March 2019, before he came on record for her on or about 8 March 2019.  I am not satisfied there was any relevant and significant delay, as suggested by the respondent’s representative, making this application, following such advice received from Mr Mallon.  However, I accept that the earlier period of delay is a factor which I must take into account, and I do, in the exercise of my discretion.

2.6	The claimant’s representative, in support of the said application raised concerns about the financial status of Mango Direct Marketing Limited, the present respondent in these proceedings and the risk to the claimant of her ability to recover any compensation, if awarded, against Mango Direct Marketing Limited.  No relevant evidence was produced by the Claimant’s representative to support the submission.  It was, in my opinion, totally speculative and without merit and has to be rejected.  In this context, I do note that, where a claim against an individual is upheld by the tribunal, in a discrimination case, the tribunal may make individual awards against any particular respondent or make all respondents jointly and severally liable for the award.  However, it is not possible to apportionate award between contributing respondents under the Civil Liability (Contribution) Act 1978 (see London Borough of Hackney v Sivanandan [2013] EWCA Civ 22).

2.7	Significantly, in my judgment, for the purposes of this application the claimant’s representative confirmed that the claimant was not seeking, for the purposes of the claimant’s claims of unlawful discrimination, to rely on any “new” facts not already the subject matter of these proceedings.  If this had not been the position, the issue of delay, to which I have referred above, would have had much greater relevance to the determination of this application.  Obviously, if Mr and Mrs Lally are joined as respondents they have claims brought against them as individual respondents by the claimant (see above); but it has to be noted that they are both already relevant witnesses in these proceedings, as Directors of the first respondent and, in particular, to the events the subject matter of these proceedings.  Indeed both have already provided detailed witness statements relating to the events, the subject matter of the claimant’s claims.  Further, I do not understand that, if joined, there will require to be any additional legal representation for them; and, in light of the confirmation by the claimant’s representative about the same factual nature of the claimant’s claims, as referred to above, any response to be provided by the proposed respondents will not greatly, in my view, increase the costs.

2.8	Taking all these matters into account, and including the said delay, I have come to the conclusion, applying the injustice/hardship test, whether as described in Cocking or Selkent, the greater injustice/hardship would be, in the circumstances to the claimant if I was to refuse the application to join Mr and Mrs Lally to these proceedings.

	In the circumstances, I therefore order Stewart Lally to be joined as a second respondent and Susan Lally as a third respondent to these proceedings.  I further give leave to each of the newly joined respondents to present a response to the tribunal, if they wished to do so, within 28 days of the date of this decision.

3.1	In relation to the claimant’s application to strike out, in whole or in part, and not to be admitted in evidence, paragraph 40 of the witness statement of Stewart Lally and paragraph 6 of the witness statement of Josephine Patterson, this application has to be considered in the context of my previous decision on a Pre‑Hearing Review, recorded in the register and issued to the parties on 20 February 2019 (the February decision), relating to the application of the respondent for the extension of the word limit in respect of Stewart Lally’s witness statement.  In that decision, I have set out, in considerable detail, relevant case law authorities in relation to the issues which were the subject matter of that decision; but which both representatives, at this hearing, properly accepted are of similar application to the issues, the subject matter of this Pre-Hearing Review in relation to any strike out of the witness statements of Stewart Lally and/or Josephine Patterson, as referred to above.

	In particular, I refer to the guidance of Mummery LJ, in Beazer Homes Limited v Stroude [2005] EWCA Civ 265, when he stated at paragraph 10:-

		“In general, disputes about the admissible 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”.

	This guidance was confirmed by Underhill J, as he then was, in HSBC Asia Holdings BV v Gillespie [2010] UKEAT/041.  

	After referring to the said guidance by Mummery LJ in Beazer Homes Limited Underhill J, in HSBC Asia Holdings BV stated:-

		“Notwithstanding the general position as stated at (7) above, there will be cases where there are real advantages in terms of the economy (in the broadest sense of that term) and ruling out irrelevant evidence before it is sought to be adduced and, more specifically in advance of the Hearing …. but it may also come up by way of a frank application to exclude evidence as a matter of Case Management – for example where if the evidence in question is called it would affect the estimate for the hearing or where its introduction might put the other parties to substantial expense or inconvenience …”

	In Kalu v Brighton and Sussex University Hospitals NHS Trust and Others [2015] EWCA Civ 897 Underhill LJ stated at paragraph 17 of his judgment:-

		“I start my consideration of the issues by saying that I would endorse, with I hope appropriate diffidence, the summary of the relevant principles at paragraph 13 of my own judgment in Gillespie – see pages 198-203 – I can see no other advantage in my repeating and see no other advantage in my repeating them in extensor here.  The most relevant of the propositions in that passage for present purposes is number 10.  As I record these, it is well recognised in the discrimination case law that evidence about conduct on the part of the respondents beyond the acts complained of (typically, but not always, prior conduct) may be highly relevant in deciding whether the acts complained of were discriminatory.  The obvious example of this line of authority is, as indeed was pleaded in the grounds of appeal to the EAT Anya v University of Oxford [2001] EWCA Civ 405.  But it must also be recognised there is a tendency for claimants to rely on that line of authority to seek to introduce a wealth of background evidence which is said to support the primary claim but which on analysis has little or no probity value and adds substantially to the length and cost of the proceedings as well as creating a real risk of distracting attention from the real issues (as occurred in Qureshi v Victoria University of Manchester [2001] IRC 863: see in particular the passage and judgment of Mummery J, from pages 874H, 875B).  I refer to the passages from the judgments of Brown-Wilkinson J in Chattopadhyay v Headmaster of Holloway School [1982] ICR 1323 and Mummery LJ in Commissioner of Police of Metropolis v Hendricks [2003] ICR 530, which I set out, or referred to, under proposition 9 in Gillespie (see page 203B-C).  There will certainly be cases in which, as I put in proposition 10, that the tribunal is satisfied that the evidence in question will not be of material assistance in deciding the issues in this case before it and will cause inconvenience, expense, delay or oppression if admitted, in which the evidence in question not only made but should be excluded.”

3.2	In the course of the February decision (see in particular paragraph 3.10), I made an Order, for the reasons set out therein, that paragraph 5 of Mr Lally’s witness statement, statement had to be struck out.  My Order in relation to paragraph 5 of the said witness statement Mr Lally has not been the subject of appeal.  However, Mr Lally, in his redrafted/amended witness statement on foot of my Order has referred again, albeit in much less colourful language and detail, to certain disputed events, which were previously the subject of paragraph 5.  The issue before me at this hearing was to consider whether the reference to these events in paragraph 40 of Mr Lally’s redrafted amended witness statement should be struck out and not admitted in evidence or should remain or whether any issue relating to the admissibility of such evidence should be left to the determination of the tribunal at the substantive Hearing (see further Beazer).  In reaching my decision, as set out below, I have carefully considered the agreed statement of issues, both legal and factual, which is the relevant “roadmap” for these proceedings.  (See further paragraph 3.7 of the February decision.)

	I further note that in the claimant’s claim form and the respondent’s response form there is no issue in relation to the claimant’s dates of continuous employment that it was not in dispute that the relevant redundancy payment to the claimant reflected the said period of employment.  In light of the above case law, and consistent with my decision in the February decision in relation to paragraph 5 of Mr Lally’s witness statement I have come to the conclusion that the evidence in paragraph 40 of Mr Lally’s witness statement, the subject matter of my decision, as set out below, is not relevant or, at best, a matter of background information and of little or no probative value or material assistance in determining the issues, the subject matter of these proceedings; and, because of its contested nature, as emphasised during the course of this hearing, is likely to lengthen the proceedings and cause additional inconvenience and expense if it remains in the witness statement of Mr Lally and is allowed to be admitted in evidence at the substantive Hearing.  In light of the foregoing, I therefore make an Order striking out, in part, paragraph 40 of the witness statement of Stewart Lally, commencing at line 9:- “we had also decided …. [to] …. happy”.  (See further paragraph 4.1 of this decision).

	In the circumstances, I do not think it appropriate or necessary to set out the “full” words to be omitted in Mr Lally’s witness statement, as referred to above, in the course of this decision.  Mr Lally’s witness statement must therefore be redrafted and reserved on the claimant’s representative, with the said words omitted, within fourteen days of the date of this decision.  

3.3	In relation to the application to strike out in whole or in part paragraph 6 of the witness statement of Josephine Patterson, I have carried out a similar exercise to that set out above in relation to the witness statement of Stewart Lally.  Similarly, and not without some hesitation, I have decided that what is stated in the said paragraph by Mrs Patterson does not give rise, to the same concerns I have expressed above in relation to paragraph 40 of Mr Lally’s witness statement.  I therefore refuse to grant the application to strike out the whole or part of paragraph 6 of the witness statement of Josephine Patterson; and any issue, in relation to the relevance and/or admission in evidence of what is set out in paragraph 6, is best left to the substantive hearing (see Beazer).

4.1	In an email, dated 7 March 2019, the claimant made an application for an Order for Discovery and Inspection of certain documents, as set out in the said email.  During the course of discussion at this hearing, the claimant’s representative withdrew his application for such an Order in relation to various documents listed in the said email.  It is not, without some interest, that in the context of the claimant’s application in relation to paragraph 40 of Mr Lally’s witness statement, the claimant, in this email made application for Discovery at paragraph 3 of the requested documents, for documents relating to some of the matters which I have struck out, as referred to above.  I therefore refuse this application.  However, it clearly illustrated how such matters, which are not of material assistance to the determination of the issues to be determined by the tribunal, can result in a further application and further dispute between the parties.  

4.2	In relation to the application for discovery of further financial/account documentation at paragraph 6 of the said email, I have already emphasised, in previous applications for Discovery, made by the claimant, as set out in previous record of proceedings, that in relation to a claim arising out of redundancy exercise, there are considerable limits on the tribunal’s powers to order discovery of such financial documentation relating to the decision by an employer to make an employee redundant (see Cook v Tipper).  The respondent employer, Mango Direct Marketing Limited, has already discovered the excel sheet, as the only relevant document relied upon by it at the material time in making the decision to make the claimant redundant.  In these circumstances, and in accordance with the relevant case law, I refuse the claimant’s application for this additional finance/account documentation.

4.3	In relation to the claimant’s application at paragraph 7 of the said email, for Discovery of contractual documentation relating to the employment of Suzanne Miller I decided, applying the test of relevance and necessity set out in the case of in re Oaklee Housing Association, and the agreed issues to be determined in relation to the redundancy of the claimant, as set out in the agreed statement of issues, including, the issue of alternative employment of the claimant, Mango Direct Marketing Limited must provide discovery to the claimant, within fourteen days of the date of this decision, all contractual documentation in the possession custody and power of Mango Direct Marketing Limited relating to the employment of Suzanne Miller.  

	In relation to the claimant’s application for documentation, as set out in paragraph 8 of the said email, in relation to the redundancy exercise carried out in respect of other employees, I am not satisfied that such documentation satisfies the said tests for Discovery, as the claimant was in a pool of one, in contrast to other employees; and, having considered the submissions of the representatives, I consider that this application is more in the nature of a “fishing expedition” by the claimant.  

5.1	As set out in the record of proceedings of the Case Management Discussion on 8 March 2019, dated 12 March 2019, the substantive hearing, which was due to commence on 11 March 2019 had to be adjourned, for the reasons set out in the said record.  Both representatives agreed that this matter required to be listed for a ten day hearing, in view of the issues to be determined, the likely length of cross-examination of witnesses and the number of witnesses.  Following discussion, it was agreed that this matter will be listed for hearing on 6-16 August 2019, with the panel pre-reading the witness statements between 10.00 am and 12.00 pm on the first day of the hearing.  It was further agreed these dates are subject to objection by either party, giving reasons in writing to the tribunal within seven days of the date of this hearing.  In that event, the parties were to provide to the tribunal proposed agreed alternative dates at or about the same period.  

	I further direct that a Progress Review Case Management Discussion is to be held on this matter on 14 June 2019 at 9.30 am.  The representatives must attend in person, subject to any further application by either party and/or further Direction/Order of the tribunal allowing attendance by way of telephone conference.

5.2	This matter has already been the subject of considerable Case Management by the tribunal.  I hope, subject to what is set out above, that there will not require to be any further hearings in this matter, before the substantive hearing.  However, I remind all parties that the Orders referred to in this decision are Orders of the tribunal and must be complied with.  If any further application is required to be made to the tribunal, including any application for extension of time, then any such application must be made promptly and in accordance with the relevant Rules of Procedure and having regard to the dates for hearings and compliance with Orders, as set out in this decision.	

Employment Judge:

Date and place of hearing:	13 March 2019, Belfast

Date decision recorded in register and issued to parties: