THE INDUSTRIAL TRIBUNALS

CASE REF:	1396/12

CLAIMANT:			Ian Rosbotham

RESPONDENT:		Lee Martin

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that:-

(i)	The respondent’s defence should not be struck-out on account of his failure to comply with an Order for Discovery and Inspection made against him in favour of the claimant on 17 January 2013.

(ii)	At the conclusion of the hearing, the tribunal also gave certain                 case-management directions, as set out at Paragraphs 3 – 5 below.

Constitution of Tribunal:
Chairman (sitting alone):		Mr D Buchanan

Appearances:
The claimant, Mr Rosbotham, appeared in person and was not represented.
The respondent, Mr Martin, was represented by Mr M Corkey, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.  They also appeared for the Department for Social Development in the claimant’s third party discovery application against it, held at the conclusion of the pre-hearing review, and in respect of which the Department for Social Development had notice.

1.	At the outset of the pre-hearing review, Mr Corkey BL indicated that the Department for Social Development (‘DSD') was now providing representation for Mr Martin, its employee.  No previous notification had been given to either the claimant, Mr Rosbotham, or to the Office of the Tribunals, of this.  It appears to have been an eleventh hour decision.  The claimant, understandably, expressed dissatisfaction at this, and I, too, was distinctly unimpressed.  

2.	On the information placed before me by Mr Corkey, I am satisfied that it would not now be appropriate to strike-out the respondent’s defence on account of his failure to comply with the Order for Discovery and Inspection which I made against him on 17 January 2013.

	Firstly, the respondent claims he was unaware of some of the proceedings in this matter, because of a change of address.  I am prepared, on this occasion, to take that at face value, notwithstanding he has only himself to blame, as he did not bother to tell the tribunal of his change of address.  I also note that not one of the many items of franked correspondence sent to him has been returned by Royal Mail.  

	Secondly, Mr Corkey made the point that much of the discovery sought was not in the respondent’s possession, but in that of the DSD.  This second submission has clearly more force than the first, to the extent that the first, standing on its own, has, in fact, any force.

3.	I now give the following case-management directions:-

(i)	I set aside the Order for Discovery and Inspection made on 17 January 2013.  Mr Corkey has persuaded me that it was too wide in its terms.

(ii)	I now make the following Order for Discovery and Inspection against the DSD as a third party:-

The DSD will grant discovery and inspection to the claimant of the following documents:-

(a)	all documents in its possession on which the respondent intends to rely at the hearing of this matter; and

(b)	all documents which are or have been in its possession, custody or control which are relevant to the issues raised in the claimant’s claim against the respondent, Lee Martin.

				This Order is to be complied with by 24 April 2013.

(iii)	If on receipt of the documents set out at (ii) above, Mr Rosbotham wishes to make an application for discovery of any specific document, he will do so by 8 May 2013.
	
The third party will reply to any such request by Mr Rosbotham by 22 May 2013.

Any Notices to be issued by the respondent against the claimant will be sent to him by 8 May 2013, and he will also reply by 22 May 2013.

(iv)	In relation to Notices and Orders attention is drawn to Appendix 1.

4.	Date of Hearing

	(i)	The case is currently listed for hearing from 13 – 17 May 2013.

	(ii)	It will be taken out of those dates and re-listed as follows:-

			10.00 am from 10 – 14 June 2013

If these dates do not suit the parties will agree alternative dates and notify Listing Section.  Any alternative dates must be before the end of June 2013.

5(i)	At the hearing, evidence-in-chief will be given orally.  Witness statements will not be used.

 (ii)	An agreed bundle is to be provided by 7 June 2013.

Chairman:

Date and place of hearing:	28 March 2013, Belfast

Date decision recorded in register and issued to parties:

Notice

1.	If any party fails and/or is unable to comply with any of the above Orders, any application arising out of such failure or inability to comply must be made promptly to the tribunal and in accordance with the Industrial Tribunals Rules of Procedure 2005.

2.	Failure to comply with any of these Orders may result in a Costs Order or a Preparation Time Order or a Wasted Costs Order or an Order that the whole or part of the claim, or as the case may be, the response may be struck out and, where appropriate, the respondent may be debarred from responding to the claim altogether.

3.	Under Article 9(4) of the Industrial Tribunals (Northern Ireland) Order 1996, any person who, without reasonable excuse, fails to comply with a requirement to grant discovery and inspection of documents under Rule 10(2)(d) of the Industrial Tribunals Rules of Procedure 2005 shall be liable on summary conviction to a fine not exceeding Level 3 on the standard scale - £1,000 at 3 September 2007, but subject to alteration from time to time.

4.	A party may apply to the tribunal to vary or revoke any of the above Orders in accordance with the Industrial Tribunals Rules of Procedure 2005.