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Christmas Employment Law Message from Colleton Chambers

In lieu of Christmas cards and Christmas Fizz in chambers this year I wish you all a happy and healthy COVID-safe Christmas and to thank you all for your continued instructions in what has been a difficult year for us all.

I also wanted to bring a recent decision to your attention.

If any of us practising in the South West were under any illusion about the Bristol region’s focus on early case management, defining of issues and setting limits of both bundle sizes (in page counts) and lengths of witness statements (with word counts), a recent decision from the EAT has confirmed that that practice is ‘ethical’ and ‘in the interests of justice’ and one which is now being followed in other regions too.

In Miron v (1) Adecco UK LTD and (2) Whitman Laboratories Ltd [UKEATPA/0409/20/AT and UKEATPA/0410/20/AT and UKEATPA/0467/20/AT and UKEATPA/0471/20/AT] it was held ‘beyond a doubt’ to be appropriate for a tribunal to limit the size of a bundle as part of its case management powers.

On an appeal heard by Matthew Gullick (Deputy Judge of the High Court) from case management and interlocutory decisions made by both Employment Judge Dawson sitting in Southampton (in relation to bundle size and word count), and our regional Employment Judge, Employment Judge Pirani (for refusing to transfer the case to another region and/or for refusing to stay the proceedings), in a case listed for final hearing in Southampton this week (due to start on Wednesday 16th December 2020), the EAT went to great lengths to explain to the appellant (and anyone else who needed reminding) of the high bar on applications of bias and the considerable discretionary powers of case management at a Judge’s disposal.

The EAT’s observations were made in the context of dismissing the appeal and it was held that limits imposed on the trial bundle size, and length of witness statements, were not indicative of bias, but good practice designed to ensure fairness to hearings.

At paragraph 64 of the EAT’s judgment, it stated that ‘the Claimant’s proposition that limitations on the size of hearing bundles and witness statements are antithetical to the right to a fair trial’ was ‘wholly unarguable’. It went on: ‘Indeed, by focusing the minds of the parties on the relevant issues and evidence, such limits may serve to ensure the fairness of a hearing.’

I have often seen parties reminded in this region that case management orders are not advisory or desirable targets, but mandatory orders; now we have an EAT authority explaining just how wide that discretion in the making of the mandatory order is, and potentially how difficult it is to challenge on appeal with an argument of bias.

My advice – be prepared for the case management preliminary hearing, get your estimates for witness statement word counts and page counts for the bundle ready in advance and once the order has been made stick to it, and if you cannot then make an early, detailed and well-reasoned application to the Tribunal for variation.

Happy Christmas and New Year to you all.

Sarah Hornblower

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