THE INDUSTRIAL TRIBUNALS

CASE REF: 872/15
2273/15

CLAIMANT:		Michelle Elliott

RESPONDENT:		Chief Constable of the Police Service of Northern Ireland

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is that:-

(1)	it is ordered that the application of the respondent for an extension of the word limit of the witness statement of DMcC from 7,500 words, as previously ordered by the tribunal, to 11,200 words is granted;

(2)	Further case management Orders were made by the tribunal, as set out in more detail in paragraphs 7 and 8 of this decision.

Constitution of Tribunal:

Employment Judge (sitting alone):  Employment Judge Drennan QC

Appearances:

The claimant was represented by Ms N Leonard, Barrister-at-Law, instructed by Edwards & Company, Solicitors.  

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

REASONS

1.1	This Pre Hearing Review was arranged, following the respondent’s application to extend the word limit for DMcC, as previously ordered by the tribunal, as set out in the record of proceedings dated 9 October 2015 in relation to the witness statement of DMcC; and, if granted, to determine the word limit to be imposed for the said witness statement and to give such further case management directions/Orders, as might be necessary and appropriate in the circumstances.

1.2	In view of the objection by the claimant to the respondent’s application for an extension of the word limit for the said witness statement, it was necessary for this application to be determined at a Pre Hearing Review.  Both representatives agreed to short notice of the hearing for this Pre Hearing Review.

2.1	In my judgement, in the case of Carol Crockett –v- Police Federation of Northern Ireland & Another (case reference numbers 557/13 and 1279/13) (2013) NIIT – 9 October 2013, I referred to an earlier decision made by me in the case of Briercliffe –v- South Health & Social Care Trust (case reference number 74/12), when I stated, inter alia:-

		“2.4	I am satisfied, before determining this matter, it is necessary to confirm that I do not consider the use of word-limits should become some form of sterile word number competition/bidding war between the parties; and the parties must not forget the purpose of imposing any form of word-limit is merely a tool to enable the tribunal to properly case-manage a substantive hearing, in light of the issues identified....

2.2	In the Crockett decision, I reviewed the relevant legal authorities and the legal principles which must guide a tribunal in relation to this application, which have been identified in various legal decisions in this jurisdiction and in Great Britain.  The substantive hearing in this matter is listed to commence on 29 February 2016 for a 10 day hearing and in the time available, I do not intend to repeat the legal principles set out in Crockett; but I have taken them into account in reaching my decision, as set out below.  

2.3	The claimant brought her first proceedings in this matter (case reference 872/15) on 28 April 2015.  At that time, DMcC was one of the named respondents.  As set out in the record of proceedings dated 4 August 2015, the hearing of this claim was due to commence on 23 November 2015 until 27 November 2015.  However, for the reasons set out in the record of proceedings dated 9 October 2015, this hearing required to be adjourned, following the presentation of a further claim by the claimant (case reference 2273/15), which was the subject of a consolidation order, dated 9 October 2015.  In the circumstances, it was agreed that the substantive hearing of the consolidated proceedings would now commence on 29 February 2016 until 11 March 2016.  Further, amended case management directions/orders were made by the tribunal, including an amended timetable for the preparation and exchange of witness statements word limit and size of bundles.  At the Case Management Discussion on 9 October 2015, as set out in the record of proceedings dated 9 October 2015, it was agreed that the relevant respondent was the Chief Constable of the Police Service of Northern Ireland and, in particular, DMcC was dismissed as a named respondent to these proceedings.  Both representatives agreed to a timetable for the preparation and exchange of witness statements which, by its nature, left little room for flexibility or for any party to fail to comply with the said timetable.  There has been some slippage by both parties in the amended timetable which is a matter of regret; but, for the purposes of this decision, they are of little or no relevance.  However, given that the respondent’s witness statements were not required to be exchanged until 15 February 2016, I accept that it was not possible, given this tight timetable for the respondent’s representative to make an application for an extension of the word limit for the witness statement of DMcC until 18 February 2016.  

2.4	Before determining this application, I have had an opportunity to read the witness statement of the claimant and also one of her witnesses WPR together with the disputed witness statement of DMcC.  By way of general comment, I think it is necessary to recognise that one of the “problems/difficulties” of the use of the witness statement procedure is that the more detailed a claimant’s witness statement is, it is inevitable, in my experience, that a respondent’s witness statements, in reply, will be equally detailed. Where the respondent may have issues about the relevance of some matters set out in the claimant’s witness statement, these will not be able to be fully ventilated and determined until the substantive hearing itself. In such circumstances, respondents will normally address the issue in their witness statements to “protect their position”. By way of contrast, where the witness statement procedure is not used, such issues will normally be dealt with, as they arise, during the hearing. Thus, where the witness statement procedure is used, it is necessary to take this into account, when considering the length of a witness statement of any party/witness. However, subject to the foregoing, and having regard to the terms of the overriding objective, it is always necessary to look in a critical way, before finalising a witness statement, to ensure what has been included is required to be included; in light of the authorities as reviewed in Crockett.

2.5	I think it could be argued that some paragraphs or part thereof of the witness statement of DMcC could have been shortened and, at times, appear to include matters of argument, supposition, rather than merely stating facts.  However, I accept that is, maybe, to be too critical, given the manner in which the claimant has set out her allegations in her witness statement and those of her witnesses and to which this is a response, which exposes, in the circumstances, the very difficulties I have referred to above with the use of the witness statement procedure.  Further, whilst I consider, in light of the foregoing, there could be some omissions/redrafting of the witness statement, I am not satisfied it would make a substantial difference to the overall word count.  Further, given the substantive hearing of this matter is to commence on 29 February 2016, I do not think that to order any such “tinkering” with the said witness statement would be within the terms of the overriding objective.  In light of my decision, as set out below, I am reluctant to set out in great detail my specific concerns about particular paragraphs in the said witness statement, so as not to give rise to any risk of prejudice to either party at the substantive hearing by any such specific reference.  (See later).

2.6	I am also very conscious of the guidance of Mummery LJ in Beazer Homes Ltd –v- Stroude (2005) EWCA Civ 265, when he stated at paragraph 9:-  

		“In general, disputes about the inadmissibility of evidence in civil proceedings are best left to be resolved by the Judge at the substantive hearing of the application of the trial of the action, rather than at a separate preliminary hearing.  The Judge at a preliminary hearing on non 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) UKEAT0417.

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

	“(8)   Notwithstanding the general position as stated at (7) above, there will be cases where there are real advantages in terms of economy (in the broadest sense of that term) in 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 will seriously affect the estimate for the hearing or where its introduction might put the other party to substantial expense or inconvenience.... “(see later).

2.7.	In light of the foregoing, having considered the witness statement of the claimant and also that of her witness MPR, I accept, given the fact that there are now two claims brought by the claimant and having regard to the agreed statement of issues (see later), that the previous word limit of 7,500 words for this particular witness, namely DMcC, was inappropriate in the circumstances.  The issue is whether, at this hearing, I should reduce the word limit below 11,200 words, as proposed by the respondent and, if so, what new word limit should be imposed.

3.	The claimant’s representative, in particular, objected to the length and detail of paragraphs 2-9/10 of the witness statement of DMcC.  Ms Best stated that a central issue, in the claim of the claimant, related to decisions made by the respondent about performance management/transfer, which the claimant alleges were because of her disability. However, the respondent contended these matters had not arisen due to any discriminatory reason but rather had arisen solely because of performance management issues.  She strongy submitted that the purpose of these paragraphs was, in particular to set out relevant background/context to these said decisions of performance management etc by the respondent.  Relevance of issues of background and context can always be difficult (see Anya – V – University of Oxford [2001] IRLR 377).  For the reasons seen above, I am not persuaded, in the circumstances, that the evidence contained in these paragraphs is irrelevant, as suggested by Ms Leonard, on behalf of the claimant.  Even if there is some room for argument on admission, by way of evidence, of some of or all of what is stated in these paragraphs, it is better, in my view that these issue are dealt with at the substantive hearing (see HSVC Asia Holdings and Beazer Homes).

4.	Ms Leonard referred to paragraph 78 of the said witness statement of the DMcC, with specific reference to issues relating to MPR and Fire Arms Issues.  Firstly, the paragraph is relatively short. Even if it was to be further shortened or omitted, it would not dramatically affect the word count.  Having considered the claimant’s witness statement and also that of MPR, I am not in the position to state the inclusion of the matters set out in this paragraph is irrelevant and should therefore be struck-out.  Again, this is a matter for the tribunal at the substantive hearing to further consider and determine, if necessary and appropriate.  In relation to this particular issue, I have a matter of concern in that this issue of MPR/Fire Arms Issue was not the subject of the final agreed statement of issues, previously lodged with the tribunal.  However, by inclusion of MPR’s. witness statement, if not also that of the claimant, the claimant has put back this issue as an issue which requires to be determined by the tribunal.  The respondent, despite the fact that there was no amendment of the agreed statement of issues, decided to deal with the issue, without objection, as it considered appropriate, in the context of its own witness statements.  It is not surprising therefore there is some reference in the witness statement of DMcC to these matters. For the claimant to suggest that this paragraph should be struck-out in whole or in part, in such circumstances, seems to me to be erroneous. Regardless of the above and the omissions from the statement of issues, the representatives confirmed they were in a position to deal with it at the substantive hearing.  However, although the parties agreed by themselves, to an amendment of the statement of issues, the tribunal was not informed.  In the circumstances, an amended final agreed statement of issues must be lodged with the tribunal before the commencement of the hearing at 10.00am on 29 February 2016.  

5.	In the circumstances, I decided that the application of the respondent for an extension of the word limit of the witness statement of D.McC from 7,500 words, as previously ordered by the tribunal to 11,200 words should be granted.  

6.	However, despite my decision, as set out above, this is without prejudice to any decision taken by the tribunal, at the substantive hearing, including any issue of costs, arising out of the contents of the witness statements of either party and, in particular, where it is decided that has unreasonably impacted upon the length of the hearing.

7.	During the course of this hearing, a number of interlocutory issues arose, which required further amended case management directions/orders, as set out below.  I was informed that there was considerable documentation in this matter and a reference was made to “21 lever arch folders”.  The representatives acknowledged and accepted that this would not be acceptable to any tribunal, regardless of the issues which require to be determined.  I was informed that the representatives have worked very hard to ensure that only the “core” documents would be placed before the tribunal; although copies of all other documents, exchanged between the parties, would be available, if necessary, in the tribunal room.  Contrary to earlier case management directions/orders, the representatives have attached to each witness statement the relevant documents referred to in each such witness statement; and have therefore considerably reduced the documentation which will be required to be read and considered by the tribunal.  At this stage, with the substantive hearing commencing on 29 February 2016, it seems to me that it is too late, even if I was minded to do so, to alter the preparations which have been made by the representatives and which they have assured me was to assist the tribunal and, in particular, to follow the terms of the overriding objective.  Ultimately, whether they have done so, will be a matter for the tribunal at the substantive hearing.  It had been previously agreed that the reading time for the tribunal would be between 10.00 am and 2.00 pm on the first day of the hearing.  Given the matters set out above, I had some concern whether this time would be sufficient for the tribunal.  However, as the relevant witness statement/documentation was not yet ready, it was difficult for me to come to any conclusion.  In the circumstances, it was agreed, that the reading time would remain as set out above, namely between 10.00 am and 2.00 pm on the first day of hearing but subject to the following qualification.  Firstly, it may be that the tribunal, when it begins to read the witness statements/documentation, may decide that a longer time is necessary.  In that case, the parties and their representatives will be so informed as soon as possible.  Equally, it may be that the tribunal may require the attendance of the representatives at the tribunal, at anytime between 10.00 am and 2.00 pm on the first day of the hearing, in order to deal with any issues arising from the manner in which the witness statements/documentation has been presented to the tribunal.  Therefore, representatives must be on notice that they may be required to attend the tribunal at any time from 10.00 am on the first day of the hearing and must be in a position to make themselves available for any such attendance at the tribunal.  

8.	The claimant’s representative confirmed that the claimant was not making any claim for personal injuries but was making a claim for injury to her feelings.  In connection therewith, I understand that a consultant psychiatrist’s report, dated 19 January 2016, has been provided to the respondent’s representative, together with a recent medical report from her general practitioner.  I am concerned that the provision of this medical evidence, at such a late state, has arisen, especially given my previous case management directions/orders.  The respondent’s representative confirmed that it was not the intention of the respondent to obtain its own medical evidence but it was objecting to the admission of reports.  Following discussion, I was informed that, subject to the claimant’s representative obtaining detailed instructions from the claimant, it was anticipated that the consultant psychiatrist report and/or the general practitioner’s report would be the subject of an application by the claimant to the tribunal to admit these reports, without formal proof; but, on the strict understanding that the weight, if any, to be attached to these reports by the tribunal would be a matter for the tribunal.  In that event, the respondent’s representative would not object to that application.  It was agreed, and I so ordered, that the claimant’s representative would confirm the respondent’s representative, with copy to the tribunal by 5.00 pm on 24 February 2016, whether this was now an agreed position between the parties.  If either the consultant psychiatrist and/or the general practitioner are required to attend the hearing to give oral evidence, then a further Case Management Discussion will have to be arranged, as a matter of urgency, in order to determine the way forward and, in particular, whether liability and/or remedy can be determined at the one hearing and /or when the said ordered witnesses will be available to give their evidence to the tribunal.  

______________________________________
Employment Judge

Date and place of hearing:  23 February 2016, Belfast.		

Date decision recorded in register and issued to parties: