EAT Practice and Procedure: Disclosure – An experienced Employment Judge ordered disclosure by a third party of Judgments and interlocutory Orders relating to cases of a similar type to those being litigated by the Claimants.
It was argued that he had failed to apply the test of relevance and necessity before making the Order and that he had focused only on a concern about the inequality of arms between the parties to the litigation. It was also contended that he should have first examined the documents and ought to have understood that only Judgments, not interlocutory Orders were in the public domain.
The Judge had been addressed on the test and it could easily be inferred from his Reasons, taken as a whole, that he had applied it. The circumstances, unusually, justified the Order for disclosure at an early stage in the proceedings, the Claimants having been unable to comply fully with an Order for particularisation without it. In the absence of confidentiality objections, it had been competent and appropriate for the Judge to order disclosure without first examining the documents for reasons adequately explained by him. Any distinction between Judgments and interlocutory Orders, only the former being strictly in the public domain, had been dealt with by redaction and limitation of the type of Judgments covered by the Order. The Judge’s focus on the overriding objective in exercising his power to order disclosure of documents was in the circumstances entirely appropriate and the outcome a fair one. The appeal was dismissed.
Lady Wise
[2016] UKEAT 0107 – 16 – 2510
Bailii
England and Wales
Employment
Updated: 24 January 2022; Ref: scu.570397