Tim Sarnoff v YZ
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Bean LJ,Phillips LJ |
| Judgment Date | 15 January 2021 |
| Neutral Citation | [2021] EWCA Civ 26 |
| Date | 15 January 2021 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2020/0771 |
[2021] EWCA Civ 26
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Kerr
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Bean
and
Lord Justice Phillips
Case No: A2/2020/0771
Ms Diya Sen Gupta QC (instructed by Latham & Watkins (London) LLP) for the Appellant
Mr Jonathan Cohen QC and Mr Christopher Milsom (instructed by BlackLion Law LLP) for the Respondent
Hearing date: 24 th November 2020
Approved Judgment
The Appellant is a US citizen who lives and works in California. He was an independent representative on the board of The Weinstein Company Holdings LLC (“the US parent”), which is the parent company of the Weinstein Company LLC (“the US company”): both companies are Delaware companies. One of the Co-Presidents of the US company was the film producer Harvey Weinstein. The Respondent claims to have been employed by either the US company or a UK subsidiary. She claims that she was subjected to sexual harassment by Mr Weinstein. She has brought proceedings in the Employment Tribunal under the Equality Act 2010 against the companies by one or other of which she says she was employed, against Mr Weinstein himself and also against a number of other individuals, including the Appellant and other representatives on the board of the US parent (“the Executives”). In summary, her case against the Executives is that by failing to prevent Mr Weinstein's conduct they “knowingly helped” him within the meaning of section 112 of the Act. The Appellant disputes both the legal and the factual basis of the claim against him.
On 21 September 2018 Employment Judge Tayler in the Central London Employment Tribunal made a general order against all the parties for disclosure of relevant documents. The Appellant applied for that order to be set aside. By a decision dated 17 July 2019 EJ Tayler declined to do so.
The Appellant appealed to the Employment Appeal Tribunal (“the EAT”) on the single issue of whether the Employment Tribunal had power to make an order for disclosure against a party who was not in Great Britain. By a judgment handed down on 6 May 2020 Kerr J dismissed the appeal.
This is an appeal against that decision, with the permission of the EAT itself. The Appellant has been represented by Ms Diya Sen Gupta QC and the Respondent by Mr Jonathan Cohen QC and Mr Christopher Milsom. At the conclusion of Ms Sen Gupta's submissions we did not find it necessary to call on Mr Cohen and said that the appeal would be dismissed. These are my reasons for that decision.
I should note by way of preliminary that the Executives have claimed that the Employment Tribunal does not have territorial jurisdiction to entertain the claims against them, and Ms Sen Gupta made it clear that the present appeal was being pursued without prejudice to that position. However, the Tribunal has declined to direct a preliminary issue as regards jurisdiction, and there has been no appeal against that decision. Although there was some discussion at the hearing of this appeal about the difficulties of determining the jurisdiction issue at the same time as the substantive issues, that question is not before us and it would not be appropriate to say anything about it.
I should start by setting out the relevant provisions of the Employment Tribunal Rules of Procedure (which constitute Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013). They are to be found under the heading “Case Management Orders and other Powers”, which covers rules 29–40.
Rule 29 is headed “Case management orders”. It reads:
“The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. The particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.”
The term “case management order” in rule 29 is defined in rule 1 (3) (a) as
“… an order or decision of any kind in relation to the conduct of proceedings, not including the determination of any issue which would be the subject of a judgment”.
Paragraph (3) (b) defines “judgment”, but I need not set it out: the only point that I need make is that it does not include an order for disclosure.
Rules 30–40 set out a number of somewhat miscellaneous particular powers of the Tribunal. We are concerned only with rule 31 and, tangentially, rule 32, which read as follows:
“ Disclosure of documents and information
31. The Tribunal may order any person in Great Britain to disclose documents or information to a party (by providing copies or otherwise) or to allow a party to inspect such material as might be ordered by a county court or, in Scotland, by a sheriff.
Requirement to attend to give evidence
32. The Tribunal may order any person in Great Britain to attend a hearing to give evidence, produce documents, or produce information.”
The basis of the Appellant's application was that the Employment Tribunal's power to make an order for disclosure derives (only) from rule 31 and is accordingly only available against a party who is “in Great Britain”. There might be room for debate about the precise meaning of that phrase, but it could on no view apply to the Appellant, who lives in California and has not at any material time been in Great Britain. The Respondent's primary case in response was that the power to make orders for disclosure against a party derives from the general power in rule 29 to make case-management orders: rule 31 did not apply because it was concerned only with disclosure against non-parties. She also advanced alternative arguments which I need not set out here.
EJ Tayler declined to accept that rule 31 was concerned only with disclosure against non-parties, but he held that the Tribunal nevertheless retained the power to make an order for disclosure against a party outside Great Britain because of the provision in the second sentence of rule 29 that the particular powers identified in the following rules did not restrict the general case-management power which it conferred: see para. 71 of his Reasons.
In the EAT Kerr J did not accept that argument and held that the power to make the impugned order did indeed derive from rule 31; but he felt able, in reliance on the Marleasing principle, to give the words “in Great Britain” what he accepted was a strained construction by which they “must be taken to refer to the location of the employment tribunal making the disclosure order, not to the location of the person against whom the order is made”: see para. 69 of his judgment.
It will be simplest for me to state my conclusion at this stage, and the reasons for it, before turning to the contrary arguments. I agree with both the Tribunals below that the Employment Tribunal had power to make the impugned order, and accordingly that the appeal should be dismissed. But I believe that there is a more straightforward route to that result than that taken by either EJ Tayler or Kerr J, since in my view Mr Cohen was right to submit that the relevant power derives from rule 29 and that rule 31 is concerned only with disclosure against non-parties: that being so, the words “in Great Britain” simply do not apply.
The starting-point is that rule 29 confers on the Employment Tribunal a “general power” to make case management orders and that the following rules create what it describes as certain “particular powers”. Those particular powers are evidently concerned with matters which the rule-maker for one reason or another thought required specific provision: they certainly do not cover all matters on which a tribunal is likely to have to make orders in the course of managing a case.
I accept that at first sight the particular power conferred by rule 31 may look as if it is intended to apply to all orders for disclosure, against both parties and non-parties: its wording, including the heading, is very general. (Kerr J described this as “the literal reading”.) I also accept that if that were the intention it would be at least strongly arguable, contrary to EJ Tayler's approach, that it is not legitimate to use the general power under rule 29 to order disclosure outside the terms of the particular power under rule 31. But in my view a more considered reading of the rule in the context of this group of provisions as a whole leads to the conclusion that its intended scope is narrower. I would make four points:
(1) The power conferred by rule 31 is to make an order against “any person”: that phrase on its natural reading is obviously wider than “a party”, which is what one would expect in a provision concerned with ordinary disclosure between parties (cf. the language of rule 31.2 of the Civil Procedure Rules (“the CPR”)).
(2) Rule 31 reads as a pair with rule 32, which starts in identical terms, likewise referring to “any person”. Rule 32 is evidently intended to confer a power broadly equivalent to the power of a court (in England and Wales) under CPR 34 to issue a witness summons against a non-party 1. That suggests that the purpose of rule 31 likewise is to confer a power to make orders against non-parties.
(3) Reading rule 31 (and rule 32) as concerned with orders against non-parties makes sense of the limitation of the power to making orders against persons in Great Britain. It is easy to see why the rule-maker should take the view that it was exorbitant for the Employment Tribunal to have the...
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