Ansin vs Mango Direct Marketing Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 26 March 2019 |
| Docket Number | 05333/18IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Mango Direct Marketing Limited |
THE INDUSTRIAL TRIBUNALS
CASE REFS: 5333/18
7185/18
CLAIMANT: Marie Catherine Ansin
RESPONDENT: Mango Direct Marketing Limited
DECISION ON A PRE-HEARING REVIEW
The Decision of the Tribunal is that:-
1. It is ordered:-
(a) Stewart Lally and Susan Lally are each joined as second and third respondent, respectively, to these proceedings.
(b) Each of the newly joined respondents have leave to present a response to the Tribunal within 28 days of the date of this Decision.
2. It is further ordered that part of paragraph 40 of the witness statement of Stewart Lally is struck out and not to be admitted in evidence, as more particularly set out in paragraph 3.2 of this decision; and the said witness statement is to be redrafted and reserved on the claimant’s representative within 14 days of the date of this decision in accordance with the said Order, as set out above.
3. The application to strike out the whole or part of paragraph 6 of the witness statement of Josephine Patterson is refused.
4. It is further ordered that the respondent discover to the claimant within fourteen days of the date of the decision the documents set out in paragraph 4.3 of this decision.
5. It is further ordered the time for compliance with the Order for Discovery dated 1 March 2019, as amended on 8 March 2019, is extended to 10.00 am on 18 March 2019.
6. Further Case Management Orders were made for the listing of the substantive hearing in this matter at the conclusion of this Pre-Hearing Review, as set out at paragraph 5 of this decision.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Drennan QC
Appearances:
The claimant was represented by Mr C. Mallon.
The respondent was represented by Mr B. Mulqueen, Barrister at Law, instructed by Tughans Solicitors
REASONS
1.1 It was not disputed by the representatives, at the commencement of this hearing, that this pre-hearing review had been arranged, following the Case Management Discussion on 8 March 2019 and for the reasons, set out in the Record of Proceedings, dated 12 March 2019 of the said Case Management Discussion, to consider the following applications, on foot of the notice of hearing, dated 12 March 2019, the parties having agreed to short notice of the hearing, namely:-
(1) the claimant’s application for an order to join Stewart Lally and Susan Lally as the second and third respondent, respectively, to these proceedings;
(2) the claimant’s application for an order to strike out, in whole or in part, paragraph 40 of the witness statement of Stewart Lally and paragraph 6 of the witness statement of Josephine Patterson;
(3) the respondent’s application for an Unless Order against the claimant for failure to comply with the Tribunal’s Order for Discovery, dated 1 March 2019, as amended on 8 March 2019, of copies of certain bank statements, relating to bank accounts held by the claimant;
(4) the claimant’s application for an Order for Discovery and inspection of documents, set out in the claimant’s email, dated 7 March 2019.
It was not disputed by the representatives that, pursuant to the rules of procedure, the Tribunal could make, at a pre-hearing review, any order that would normally be made at a Case Management Discussion.
1.2 At the commencement of the hearing, subject to what is set out below, the respondent’s representative indicated that the claimant had provided copies of bank statements, the subject of the amended order for Discovery referred to above. However, in the course of discussion, it had become apparent, arising out of correspondence received from one of the banks, the subject of the said order, that there was a dispute between the representatives of the parties whether all relevant bank statements had been provided by the claimant on foot of the said Order. In the circumstances, and for the avoidance of any doubt, it was agreed, and I so ordered, that the date for compliance with the said Order would be extended to 10.00 am on 18 March 2019. In light of the foregoing, the respondent’s representative decided not to proceed, at this hearing, with his application for an Unless Order; but I gave the respondent leave to renew the said application after 18 March 2019, if it was considered necessary and appropriate. In such circumstances, a further Case Management Discussion will be arranged to consider any such renewed application.
1.3 At the commencement of the hearing, both the claimant’s representative and the respondent’s representative indicated that, at the conclusion of the substantive hearing, but not at this hearing, each would be asking the tribunal to determine their respective applications for preparation time orders, in the case of the claimant, and an Order for Costs, in the case of the respondent. I reminded both representatives that any such application for any such Orders requires to be made in accordance with the Rules of Procedure and setting out relevant details and reasons for any such Order to be made together with relevant schedule of preparation time/costs and how any such sum is made up.
1.4 I acknowledge that there has been considerable dispute between the parties in relation to interlocutory issues in this matter and which have been strongly contested, to date, both at Case Management Discussion and in correspondence by the parties and their representatives. In this context, I remind the parties and their representatives of the terms of the overriding objective. However, for the avoidance of any doubt and arising from discussion at the commencement of this hearing, I make it clear, for the record, that the claimant’s representative withdrew any suggestion, whether express or implied, of any improper conduct by the respondent’s representative in his conduct, to date, in relation to these proceedings.
2.1 In relation to the claimant’s application for an Order joining Stewart Lally and Susan Lally, as the second and third respondent to these proceedings, it was not disputed the said application was made by the claimant’s representative, pursuant to Rule 10(2)(j) of the Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution of Rules of Procedure) Regulations (Northern Ireland) 2005 (the Rules of Procedure) which said Rule allows the tribunal to make an Order making any person a respondent in the proceedings who the Employment Judge or tribunal considers may be liable for the remedy claimed (a Joinder Order).
In view of my decision at this Pre-Hearing Review, it was not necessary for me to further consider Rule 10(2)(q) whereby a Joinder Order can be made in relation to any person whom the Employment Judge or tribunal considers has an interest in the outcome of the proceedings (see further Welsh v Bendel and Another [2012] UKEAT/0014/12 and Beresford v Sovereign House Estates and Another [2011] UKEAT/0405/11).
2.2 As set out above, pursuant to Rule 10(2)(j) of the Rules of Procedure the criterion for the joinder of a respondent is that he/she might be liable for the remedy claimed. By contrast, in Great Britain, under the 2013 Rules of Procedure, which do not apply in Northern Ireland, the relevant Rule (Rule 34) states that the criterion is –:-
“If it appears there are issues between the person and any of the existing parties falling within the jurisdiction of the tribunal which is in the interests of justice to have determined in the proceedings”
This criterion, under Rule 34 of the 2013 Rules of Procedure, which applies in Great Britain, is clearly wider than Rule 10(2)(j) of the Rules of Procedure which applies in Northern Ireland; but, in my judgment this criterion under the 2013 Rules merely reflects the case law, which has been long established and still applies in Northern Ireland, as referred to later in this decision (see further for example Mist v Derby Community Health Services NHS Trust [2016] UKEAT/0170/15 in relation to Rule 34).
2.3 Apart from the specific Rules relating to joinder, as referred to above, a tribunal has always had power, under the Rules of Procedure, to join a respondent under the tribunal’s powers to regulate their own procedure. In the case of Cocking v Sandhurst (Stationers) Limited [1974] ICR 650, Sir John Donaldson gave guidance, which is still relevant under Rule 10(2)(j) of the Rules of...
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