R v London (North) Industrial Tribunal, ex parte Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE KEENE |
| Judgment Date | 30 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0430-6 |
| Docket Number | CO/805/98 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 1998 |
[1998] EWCA Civ J0430-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Mr Justice Keene
CO/805/98
MR G ROBERTSON QC and MR A HUDSON (instructed by Swepstone Walsh, London WC2A 3BP) appeared on behalf of the Applicant.
MR P SALES (instructed by Treasury Solicitors, London SW1H 9JS) appeared on behalf of the Respondent.
Thursday, 30th April 1998.
Before beginning this judgment, I want to make it clear that the reporting restrictions which I imposed at the beginning of the argument in the case remain until such time as I may lift them. That will be something to which we may turn to in due course.
This is an application brought by Associated Newspapers Limited, the proprietor of the Daily Mail, the Mail on Sunday and the Evening Standard to quash a Restricted Reporting Order made under Rule 14 of Schedule 1 to the Industrial Tribunals (Constitution etc) Regulations 1993 ("the 1993 Regulations") by a chairman of the London (North) Industrial Tribunal on 10th February 1998. Other further or alternative relief is also sought in the form of a declaration and/or an Order of prohibition. The Restricted Reporting Order ("RRO") was made in relation to proceedings brought by Miss AJ Kelly, Deputy Chief Executive and Borough Solicitor of the London Borough of Camden, against that borough and its Chief Executive, Mr Stephen Bundred.
The RRO prevents the identification of those three parties to the proceedings, and three other persons, until after the promulgation of the Tribunal's decision in the case. The RRO was made after an interlocutory hearing on 3rd February 1998 at which the three parties were represented. The Order was sought by the two Respondents to those proceedings, that is to say the London Borough of Camden ("the Council") and Mr Bundred, and it was opposed by Miss Kelly in respect of its inclusion of herself, the Council and Mr Bundred. It was apparently agreed by both sides that there should be an RRO in respect of the other three persons eventually named.
The substantive hearing before the Industrial Tribunal is fixed to begin on 11th May 1988 with a time estimate of up to 15 days. The present Applicant, Associated Newspapers Limited, was not represented at the interlocutory hearing and, of course, was not a party to those proceedings. There is no obvious method by which it can bring an appeal to the Employment Appeal Tribunal. No other representative of the media seems to have been present at the hearing on 3rd February 1998, but subsequently solicitors for the publishers of the Hampstead and Highgate Express wrote to the chairman of the Industrial Tribunal who had made the RRO, asking her to reconsider her Order. A reply dated 16th February 1998 on behalf of the chairman stated that she noted what had been said by the solicitors "… but is not willing to discuss with you the propriety of the Order or the accuracy of the Reasons".
It is said in an affidavit lodged on behalf of the present Applicant that that indicates that the chairman would not be prepared to entertain any application to reconsider the RRO. That, in my view, does not necessarily follow. An unwillingness to discuss in correspondence the propriety of an RRO does not necessarily mean that a Tribunal or its chairman has set its face against more formal procedures being used. There is a power possessed by an Industrial Tribunal to revoke an RRO at any time if it thinks fit: see the 1993 Regulations, Schedule 1, Rule 14(4). It would be open to a newspaper or other media organisation to apply to be joined as a party to the proceedings before the Industrial Tribunal for the purpose of making an application for the revocation of an RRO, and to make such an application. It is far from clear that the present chairman would have been unwilling to give proper consideration to such applications. Having said that, I note that counsel for the Tribunal concedes that judicial review is an appropriate procedure for Associated Newspapers Limited to have used in the present case, and given the fact that the substantive hearing is due to start in about two weeks time, I accept that the possibility of an application to the Industrial Tribunal to revoke the RRO should not act as a bar to the present judicial review proceedings.
In these present proceedings Miss Kelly is not represented, but her solicitors have indicated by letter that she does not object to the RRO being quashed. The two Respondents to the Tribunal proceedings, the Council and its Chief Executive, have not appeared.
The Legislative Background
Section 11(1) of the Industrial Tribunals Act 1996 enables regulations to make provision
"(b) for cases involving allegations of sexual misconduct, enabling an industrial tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal".
Section 11(6) defines a "restricted reporting order" as one:
"… prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain."
The same subsection shows that the identifying matter which may be made the subject of an RRO is not confined merely to the name of an individual. "Identifying matter" in relation to a person is defined as
"… any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation".
In essence, therefore, an RRO may prohibit publication of any matter which is likely to lead to the identification by the public of the individual in question. But the power under section 11 only exists in respect of a person making the allegation of sexual misconduct or a person "affected by" such an allegation.
Under these statutory powers have been made the 1993 Regulations. Schedule 1 sets out the Industrial Tribunal Rules of Procedure, and Rule 14 states, insofar as it is relevant, for present purposes:
"(1) In any case which involves allegations of sexual misconduct the tribunal may at any time before promulgation of its decision in respect of an originating application, either on the application of a party made by notice to the Secretary or of its own motion, make a restricted reporting order.
…
(2) the tribunal shall not make a restricted reporting order unless it has given each party an opportunity to advance oral argument at a hearing, if they so wish.
(3) Where a tribunal makes a restricted reporting order-
(a) it shall specify in the order the persons who may not be identified;
(b) the Order shall remain in force until the promulgation of the decision of the tribunal on the originating application to which it relates unless revoked earlier …"
It is clear that the word "identified" in Rule 14(3)(a) to which I have just referred means identified in the sense used in section 11(6) of the Industrial Tribunals Act 1996, so that an RRO may prevent the publication of any material likely to lead to such identification, such as publishing the particular position held by an individual with a named local authority, if that is likely to lead to his identification by the public. It is unnecessary, therefore, for the Order itself to ban the identification of one person simply on the basis that it is likely to lead to the identification of the person whose identity it is truly sought to protect or conceal: it is for the press to exercise its judgment as to what is likely to lead to such identification and powerful sanctions exist if they transgress: see Staughton LJ in X v Z Limited [1998] ICR 43 at 46F.
The Facts
In her originating application to the Industrial Tribunal Miss Kelly advanced four broad claims:
(1) she sought a declaration under section 11 of the Employment Rights Act 1996 that the Council had not complied with its statutory duty under section 3 of that Act to provide details of a person to whom the employee could apply for the purpose of seeking redress of any grievance relating to her employment;
(2) she claimed compensation under section 44 of that 1996 Act on the basis that the conduct of the Chief Executive towards her had affected her health and that the Council had discriminated against her because she had complained of a serious risk to her health;
(3) she claimed that there had been continuing acts of sex discrimination against her;
(4) she claimed that she had been victimised by the Council and its Chief Executive for alleging that there had been sexual discrimination against her.
In a joint notice of appearance the Council and the Chief Executive denied or in some cases refused to admit the various allegations, and in certain instances claimed that Miss Kelly was out of time.
The factual issues raised by the originating application in those proceedings are numerous. The originating application itself runs to some 30 pages and, for the most part, sets out allegations about the conduct of the Chief Executive. This conduct is said to have amounted to discrimination against Miss Kelly on the grounds of her sex and to victimisation. Insofar as there are dates given for such acts of alleged discrimination, they seemed to have occurred principally in 1997. Thus there are allegations that Mr Bundred screamed and shouted abuse at her in March 1997, denigrated her during a performance appraisal in April 1997, lost his temper in May...
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