Appeal No.	 EAT/825/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 November 2000

Before
THE HONOURABLE MR JUSTICE BELL
MR D NORMAN
MR T C THOMAS CBE

MR D F CLULEE	APPELLANT

THE LAW SOCIETY OF ENGLAND AND WALES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondents	MR JOHN SMITH
(Solicitor)
Messrs Higgs & Son
31 Wolverhampton Street
Dudley
West Midlands
DY1 1EY	

	MR JUSTICE BELL:	This is an appeal by Mr Clulee, acting in person, against the decisions of the Chairman of the Employment Tribunal sitting alone at Birmingham on 25th May 2000 refusing him certain of the further and better particulars which he requested of the respondent’s case and some of the discovery and inspection of documents which he also requested. Mr Clulee also appeals against the Chairman’s refusal to allow him to amend his application to add a specific claim of breach of contract.

1.	The essential history is that from January 1991 the respondent employed Mr Clulee as a gardener at its offices at Ipsley Court, Redditch. He resigned in November 1999. By a form IT1 dated 19th December 1999 and received at the Employment Tribunal on 21st December 1999, he made a complaint which he described in box 1 as “constructive unfair dismissal , itemised pay statement, unauthorised deduction of wages”. The details of complaint alleged a number of respects in which Mr Clulee claimed to have been badly treated by the respondent or its officers. The last line of the details alleged that the respondent had deprived him of pension rights at a critical time. 

2.	The respondent’s Notice of Appearance set out a short history of material events as the respondent alleges them to be and paragraph by paragraph denied or explained Mr Clulee’s complaints as set out in his Originating Application. 

3.	By letter dated 21st January 2000 to the Employment Tribunal and a letter dated 21st May 2000 to the respondent’s solicitors, Mr Clulee made a request for further and better particulars and for discovery and inspection of documents. The latter letter contains 19 numbered paragraphs of requests and a twentieth numbered paragraph purporting to reserve the right to amend his Originating Application.  A letter dated 10th May 2000 to the Employment Tribunal purported to make a backdated pension claim and a letter dated 25th February 2000 to the Employment Tribunal said that Mr Clulee was unsure as to whether he should have included “breach of contract” in his Originating Application in order for his complaint of constructive unfair dismissal to be properly considered by the tribunal. Mr Clulee has told us this morning that after that he took advice from a solicitor who told him that he ought to have breach of contract specifically mentioned in his Originating Application and that since those words did not appear or did not clearly or implicitly appear he ought to seek leave to amend his Originating Application to include them. A letter dated 4th August 2000 to the Employment Tribunal made application to amend Mr Clulee’s Originating Application to include a claim for relief under the Equal Pay Act 1970 and a claim for relief under the Sex Discrimination Act 1975. We are told this morning by Mr John Smith who appears for the respondent that those application are to be heard by the tribunal this coming Friday. We are not concerned with them on the hearing of this appeal.

4.	At the interlocutory hearing on 25th May 2000 the Chairman made a number of orders and directions. It is important to note that having been told that Mr Clulee was to give evidence at the hearing of his complaints and that the respondent was to call three or four witnesses the Chairman ordered that witness statements be mutually exchanged not less than 21 days before the date of the hearing and that any supplementary statements be exchanged not more than seven days thereafter. Such statements can of course be expected to set out the parties’ cases on the facts in simple narrative form telling the other side thereby what they say about past events which are material to the issues upon the application. The Chairman ordered the respondents to supply further and better particulars in response to four of Mr Clulee’s numbered paragraphs in his 21st May 2000 letter, that is numbers 3, 5, 9 and 12, and to provide discovery and inspection of documents in response to three more paragraphs, namely paragraphs 2, 4 and 10. A review of those orders was refused and this morning Mr Clulee has complained that he has never been given extended reasons for the refusal of the review. That in our view is not an extra ground of appeal against the Chairman’s 21st May 2000 order because what we have to go back to is the terms of the order, the background to it, the nature of the case and the likely issues, as we understand it, to see whether the Chairman was entitled to take the view that he did so far as any order in respect of further and better particulars or discovery or amendment of the Originating Application was concerned.

5.	Dealing with the question of further and better particulars and discovery. It is clear to us that Mr Clulee is very anxious, as many applicants representing themselves might be, to be fully prepared for the eventual hearing of his complaints. He does not want to feel at any disadvantage. He is clearly a most meticulous man. We do not have to ask his forgiveness for saying that, because it is more a compliment than a criticism. Nevertheless, it is clear to us from the Chairman’s specification of numbered paragraphs which had to be answered with further and better particulars or in respect of which documents had to be disclosed by the Chairman’s order, and from the Chairman’s reasoned decision in respect of certain aspects of the discovery, that he considered each item requested by Mr Clulee. Tribunals of any kind nowadays have to be alert to order further and better particulars and discovery in advance and indeed well in advance of any disputed hearing when they are necessary but only when they are necessary to do justice between the parties and to ensure, so far as possible, that there will be a fair adjudication in due course. Otherwise, unnecessary time and costs will be spent on interlocutory steps to adjudication on the merits of disputes. Tribunals have to be careful to avoid unnecessary further and better particulars or granting further and better particulars which will merely disclose evidence which will or should appear in witness statements in due course.

6.	In our view it is clear in this case that the Chairman followed those principles. In any event, he had a very wide discretion so far as further and better particulars and discovery were concerned and we can see no ground to decide that he erred either in principle or in judgment in the decision to which he came. 

7.	The sooner witness statements are exchanged and Mr Clulee’s complaints are heard and decided the better in our view. If it becomes clear during the hearing that further documents need to be produced to do justice between the parties, no doubt the tribunal will give appropriate directions, and seeing the identity of the respondent we have every confidence that it will co-operate in providing anything which the tribunal considers necessary to reach a fair decision so far as documents are concerned. 

8.	We turn then to the question of amendment of Mr Clulee’s Originating Application, putting on one side, as we have indicated, the application which he has made for amendment to include claims under the 1970 Act and the 1975 Act. 

9.	By extended reasons for its decision promulgated on 10th August 2000, the Chairman refused Mr Clulee’s application to include a complaint of breach of contract. The Chairman, as is clear from the reasons, made that decision in very large part on the basis that it was not necessary to have a separate claim for a breach of contract which was part of the existing claim for unfair dismissal based on constructive dismissal because, as Mr Clulee alleges, he was forced resign by the respondent’s conduct, or which was part of the existing claim for unlawful deduction of wages, or, we would add, which related to the allegation of deprivation of pension rights which is alleged at the every end of the details of Mr Clulee’s complaints. The Chairman in his reasons went on to say that in so far as Mr Clulee wished to bring a claim under a fresh jurisdiction he was in the Chairman’s view out of time. Clearly that did not relate to any application to bring a claim under the 1970 Act or 1975 Act, because that matter is still to be heard. The question of amendment to include or add a claim under either of those Acts is not a matter for us to decide nor is a matter for us to offer any view upon. The tribunal on Friday will come to its own views having heard argument and evidence if necessary and it must be relied upon to come to the right decision in that respect.

10.	It follows from all we have said that we do not see any merit in the appeal which Mr Clulee has brought. What we would do is offer him encouragement, once Friday’s hearing is over, to get on with the preparation including the preparation of his own witness statement and the exchange of it with the witness statements to be produced by the respondent with a view to this matter being heard and adjudicated upon, upon the merits, as soon as is conveniently possible.