Plymouth City Council v White (Practice and Procedure : Disclosure): EAT 23 Aug 2013

The Employment Judge erred in conducting a five hour telephone CMD in ordering disclosure of documents he had not read and in applying the test of relevance rather than necessary for a fair trial. The sequence in a disclosure application is:
(1) The Judge must first consider if the document sought is relevant (if it is not, then it will not be ordered to be disclosed).
(2) If it is relevant, the next question is whether it is necessary for the fair trial of the case for it to be ordered to be disclosed. Where there is objection, the Judge should examine the document itself so as to consider whether or not in a contention that it is confidential it should still be disclosed (see Nasse).
(3) If the document is relevant and necessary and is to be disclosed, the Judge should consider whether there is a more nuanced way of disclosing the material so as to respect confidentiality and the Judge may then decide to order the document to be disclosed wholly or partially, usually by the system now known as redaction.
(4) The disclosure Judge having read the disputed documents should not conduct the full hearing unless the parties agree.
The order was set aside and the issue remitted to a different Employment Judge.

McMullen QC J
[2013] UKEAT 0333 – 13 – 2308
England and Wales


Updated: 22 November 2021; Ref: scu.516745