PRACTICE AND PROCEDURE – Case management
PRACTICE AND PROCEDURE – Disclosure
Though this appeal was in form an appeal against a ruling by Employment Judge Crosfill on 13 December 2017, in substance the issue was a question of construction of a case management ruling by Employment Judge Sage on 21 April 2016, following a case management hearing on 19 April 2016. The central question was whether or not paragraph 2 of the Judge’s Order was an Order for standard disclosure, as the Appellant contended it was. The matter was complicated by the fact that, in subsequent correspondence, at different times, Employment Judge Sage had indicated both that she had not ordered standard disclosure, and that she had done so. Employment Judge Crosfill took the view that Employment Judge Sage had not ordered standard disclosure and also decided that, if he was wrong and she had done so, he would revoke it, on the basis that it was not necessary or proportionate as there was a pending strike-out action which might substantially reduce the scope of the Respondent’s disclosure obligations. In deciding to revisit and revoke the Disclosure Order (if, contrary to his primary view, there had been such an Order) Employment Judge Crosfill relied upon the judgment of the EAT in Serco v Wells [2016] ICR 768.
The Appellant filed an affidavit with the EAT in which he gave evidence that Employment Judge Sage had said orally that she was ordering standard disclosure at the hearing on 19 April 2016.
The appeal was dismissed. The EAT held that the nature and scope of any Orders made at a case management hearing must be identified from the written Order that is made following the hearing, rather than from anything that is said orally during the hearing. Moreover, the EAT held that it was not appropriate to admit affidavit evidence of what was said at the hearing to assist in the interpretation of the written Order. The EAT held that Employment Judge Crosfill had been right to find that, on its true interpretation, the case management Order of 21 April 2016 had not contained an Order for standard disclosure. However, the EAT said that if Employment Judge Sage had made an Order for standard disclosure in April 2016, the principles set out in Serco v Wells would not have permitted another Employment Judge subsequently to set it aside because the second Employment Judge disagreed with it.
Citations:
[2018] UKEAT 0022 – 18 – 2003
Links:
Jurisdiction:
England and Wales
Employment
Updated: 30 January 2022; Ref: scu.621083