Friday, 27 November 2009

Tales from the Tribunal Part 2

An interesting mystery still remains from my tribunal experience.

First, a little background. During the preparation of the evidence bundle for an employment tribunal either party might want to see evidence that only the other party has. Most of the time if you ask for it you get it and everyone gets on fine.

However, on occasions, one party may not wish to hand evidence over. There can be very good reasons for this, the documents requested may include details of other workers and the employer may not think they are relevant to the case, or it may be considered that you're going on a fishing trip. In such circumstances the party wanting to see the documents will need to request a disclosure order from the tribunal and usually a case management discussion will be held and you are expected to justify why you need the info.

This was the situation I found myself in on 3 September, I wanted to see some notes of meetings and NCC didn't want me to have them. In the end the judge ordered a partial disclosure for notes that related to a particular person and a bundle of notes duly arrived some days later. I presumed that was all there was. One of NCC's senior solicitors represented them at this case management discussion.

Moving on to the second day of the full tribunal hearing (or might have been the third, not sure, it's a bit of a blur now) I was being cross examined by NCC's barrister when we had another of those 'rabbit out of the hat' moments. Apparently one of the witnesses (who is a rather senior manager) suddenly remembered that they had some notes of a meeting which proved beyond doubt what a nasty man I was.

Not really good enough, I said, I at least need to look at them overnight, which the judge agreed to. The notes were provided and I put them away to look at later.

You can imagine my surprise when I got home and looked at the notes and found that they clearly should have been provided under the disclosure order. Very naughty. Why hadn't they been provided earlier? Was it the senior manager who kept them back or the senior solicitor?

Anyway, moving on to the next week and it was my turn to cross examine NCC's witnesses and the senior manager took the stand. First question I asked was why she hadn't provided the notes as ordered and, quick as a flash she said that nobody had asked her to. I clarified that the senior solicitor had never asked for the notes and she confirmed that was the case. She said all this on oath.

So you see we are left with a little mystery. Do we believe the witness on oath saying nobody asked her for the notes (and thus selling a senior member of NCC's legal team down the river) or do we assume that a senior solicitor would not be so stupid as to fail to comply with an order of the tribunal, seeing as that would arguably be a breach of the Solicitors' Code of Conduct rule 11.02. Especially when they had been in charge of the case for 9 months.

I don't know, the only way I can think of to get to the bottom of this is to make a complaint about the senior solicitor to the Solicitors Regulation Authority who presumably will be able to investigate and establish the facts. It's more work though and I'm not sure I can be bothered which is why I've left the names out of this story. For now.

What do you think folks? Thumbs up or thumbs down?

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